{"id":206,"orig_master_id":19408,"dup_master_id":19180,"dup_sha256":"477fe6954cac0f6c8797c8cbf30aa0235fda852559e96bcd8f8ea5d03e8d28a1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-09-02","case_number":"2025 PAC 87009","request_numbers":null,"title":"Construction-Related Technical Documents for Projects Not Built with Public Funds Are Exempt from Disclosure under Section 7(1)(k)","filename":"PUBLIC ACCESS OPINION 25-012  (Request for Review 2025 PAC 87009).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-012  (Request for Review 2025 PAC 87009).pdf","word_count":2352,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request related to construction-related technical documents for a proposed commercial solar facility. It concludes that the Will County Land Use Department did not violate FOIA by withholding certain documents.","plain_summary":"The requester sought a private solar-energy developer's application materials submitted to a county land use department, which withheld two engineering technical submissions in their entirety as construction-related technical documents. The Public Access Counselor held that because the project was not being constructed or developed with public funds, section 7(1)(k) of FOIA exempted the engineering submissions from disclosure regardless of whether disclosure would compromise security. The department's withholding of the two records was upheld and no violation was found.","holding":"The Will County Land Use Department did not violate FOIA by withholding engineers' technical submissions.","legal_question":"Are construction-related technical documents for projects not built with public funds exempt from disclosure under Section 7(1)(k) of FOIA?","disposition":"no_violation","primary_statute":"5 ILCS 140/9, 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(k)","public_body":"Will County Land Use Department","requesting_party":"Becker and Mr. Duesing","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(k)","subject_description":"Construction-related technical documents submitted for a special use permit for a commercial solar facility.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-012.pdf","sha256":"3b7ad4e2c184ad02181bed0401e0ffab02338c251b75160cfe3deaa1120d3c78","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["construction documents","public funds","exemption 7(1)(k)","solar facility","technical submissions"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL September 2, 2025 PUBLIC ACCESS OPINION 25-012 (Request for Review 2025 PAC 87009) FREEDOM OF INFORMATION ACT: Construction-Related Technical Documents for Projects Not Built with Public Funds Are Exempt from Disclosure under Section 7(1)(k) Mr. Jeffrey Becker 7600 West Monee-Manhattan Road Monee, Illinois 60449 Mr. Colin Duesing FOIA Officer Will County Land Use Department 5 8 East Clinton Street, Suite 100 Joliet, Illinois 60432 Dear Mr. Becker and Mr. Duesing: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Will County Land Use Department (Department) did not violate FOIA by withholding engineers' technical submissions related to a proposed commercial solar facility in response to Mr. Jeffrey Becker's May 20, 2025, FOIA request. BACKGROUND On May 20, 2025, Mr. Becker submitted a FOIA request to the Department seeking a copy of \"the filed application, with all of its related documents, submitted by Possibility Place Nursery, Tristan Shaw or a Shaw family member, Zaroka Solar LLC, or 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (2 I 7) 782-I 090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l II i noisA ttomeyGenera I. gov • ,. ___ , ...... ~ 400S Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 2 Cultivate Power, LLC for a Special Use Permit for a Commercial Solar Energy facility, located at 7548 West Monee-Manhattan Rd. Monee IL 60449.\"1 On May 21, 2025, the Department granted the request in part and denied the request in part. The Department disclosed copies of numerous responsive records, such as an application, data sheets, studies, letters, reports, deeds, and agreements, but made certain redactions under sections 7(1)(b), 7(1)(d), 7(1)(f), 7(1)(g), and 7(1)(k) of FOIA;2 the Department also withheld two records in their entireties pursuant to section 7(1)(k). Specifically, the Department stated: Documents removed in their entirety in accordance with Section 7[1](k) include: • Project # 02500376.001 by Farnsworth Group of Lisle, Illinois • Project # 268262051 by Kimley Horn of Deerfield, Illinois These documents, or their subsequent replacement/revisions, may become part of the public record during the public approval process. If entered into the public record at that time, they may be requested for public review.Pl On May 23, 2025, Mr. Becker submitted a Request for Review contesting the Department's assertion of section 7(1)(k) to withhold those two records. Specifically, he contended that: The Department has failed to set forth any basis on which the disclosure of these reports regarding the design of a proposed solar facility on agricultural land \"would compromise security.\" Unlike all of the government buildings and large enclosed structures specifically enumerated in subsection (k), there are no buildings involved in this project. Moreover, the Department has already disclosed, as a part of its FOIA response, the precise identity of the transformers and utility-scale inverters to be employed in the project. If there were any security concerns, these components would not have been publicly disclosed. In short, there is nothing in these engineering designs that would \"compromise security\" if disclosed. The proposed solar facility will be conspicuous to everyone in the area and will be composed of thousands of solar panels mounted on frames. 1F reedom of Information Act Request Form, Will County Land Use Department, submitted by Jeffrey Becker to Will County Land Use Department (May 20, 2025). 25 ILCS I 40/7( I )(b ), ( I )(d), ( I )(f), ( I )(g) ( I )(k) (West 2024). 3E-mail from Colin Duesing, Certified FOIA Officer, to Jeffrey Becker (May 21, 2025). Office of the fllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 3 If there is any portion of these that \"would compromise security,\" the Department has failed to identify it. And even if there were conceivably something in the reports that would compromise security, the plain language of subsection (k) permits the Department to withhold the contents of the reports \"only to the extent that disclosure would compromise security. \"[4l On June 3, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting unredacted copies of the withheld records for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemption. 5 On June 5, 2025, the Department provided this office with the requested materials, maintaining that it properly withheld the disputed records under section 7(1)(k) of FOIA.6 On the same date, this office forwarded a copy of the Department's answer to Mr. Becker and notified him of his opportunity to reply in writing.7 He did not submit a written reply. On June 9, 2025, the Department sent this office and Mr. Becker a brief e-mail clarifying a portion of its answer.8 On July 21, 2025, this office extended the time for issuing a binding opinion by 30 business days, to September 3, 2025, pursuant to section 9.5(f) of FOIA.9 4Letter from Jeffrey Becker to Public Access Counselor, Office of the Attorney General (May 23, 2025), at 2. 5Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Colin Duesing, FOIA Officer, Will County Land Use Department (June 3, 2025). 6E-mail from Colin Duesing, Certified FOIA Officer, [Will County Land Use Department], to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (June 5, 2025). 7Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeffrey Becker (June 5, 2025). 8E-mail from Colin Duesing Certified FOIA Officer, [Will County Land Use Department], to [Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] and [Jeffrey Becker] (June 9, 2025). 9Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeffrey Becker and Colin Duesing, FOIA Officer, Will County Land Use Department (July 21, 2025). Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 4 ANALYSIS In section 1 of FOIA (5 ILCS 140/1 (West 2024)), \"it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\" Accordingly, courts have explained that \"the core purpose of the FOIA is to expose what the government is doing, not what its private citizens are up to.\"' Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188,211 (2004) (quoting Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1124 (7th Cir. 2003)). Section 1.2 of FOIA (5 ILCS 140/1.2 (West 2024)) provides that \" [a )11 records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" Section 7(1)(k) of FOIA Section 7(1)(k) of FOIA exempts from disclosure: Architects' plans, engineers' technical submissions, and other construction related technical documents for projects  [...] 13Letter from Ashlyn Kirby, Development Analyst I, Will County Illinois Land Use Department, to Emily Carroll (May 2 I, 2025). 14E-mail from Colin Duesing, Certified FOIA Officer, [Will County Land Use Department], to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau] (June 5, 2025). Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 6 \"[a]rchitects' plans, engineers' technical submissions, and other construction related technical documents, but only to the extent that disclosure would compromise security.\" Plainly, the General Assembly chose to apply different standards to projects constructed or developed in whole or in part with public funds as opposed to projects that did not receive public funding, in keeping with FOIA's purpose of ensuring that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\"15 The General Assembly chose to make building plans for publicly funded buildings public to the extent disclosure would not compromise security, while creating a blanket exemption for privately-funded building plans. As noted above, in response to Mr. Becker's FOIA request, the Department disclosed a substantial volume of records pertaining to the private party seeking to develop the proposed solar farm and the governmental review of the project. The Department withheld only two documents from Mr. Becker, and this office's confidential review confirmed that the withheld documents are construction-related technical documents commissioned by the private company pursuing this commercial solar farm. It is these types of records, whether for private homeowners or larger-scale private developers, that section 7(l)(k) is intended to protect. Because public funds are not being used to construct or develop the project, the plain language of section 7(l)(k) exempts those records from disclosure regardless of whether disclosure would compromise security. Accordingly, the Department has sustained its burden of proving by clear and convincing evidence that the contested records are exempt from disclosure under section 7(l)(k) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On May 20, 2025, Mr. Jeffrey Becker submitted a FOIA request to the Will County Land Use Department seeking copies of records pertaining to the proposed development of a private solar facility. 2) On May 21, 2025, the Department granted the request in part but, in relevant part, denied two construction-related technical documents pursuant to section 7(l)(k) of FOIA. 3) On May 23, 2025, Mr. Becker submitted a Request for Review contesting the Department's denial of two construction-related technical documents. The Request for Review 155 lLCS 140/1 (West 2024). Office of the fllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 7 was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On June 3, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and asked it to provide unredacted copies of the disputed records for this office's confidential review, together with a written explanation of the factual and legal basis for the applicability of section 7(1 )(k). 5) On June 5, 2025, the Department provided this office with unredacted copies of the withheld records and its written explanation. On the same date, the Public Access Bureau forwarded a copy of that answer to Mr. Becker and notified him of his opportunity to reply to that answer. On June 9, 2025, the Department sent this office and Mr. Becker an e-mail correcting a scrivener's error in its response. Mr. Becker did not submit a reply. 6) On July 21, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to September 3, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 7(l)(k) of FOIA exempts from disclosure \"[a]rchitects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds[.]\" The exemption applies to the same type of records \"for projects construed or developed with public funds, * * *, but only to the extent that disclosure would compromise security.\" 8) The Department sustained its burden by proving by clear and convincing evidence that the section 7(l)(k) exemption applies because the withheld records are construction-related technical documents pertaining to a project that will not be constructed or developed with public funds. Therefore, it is the opinion of the Attorney General that the Will County Land Use Department did not violate the requirements of FOIA by partially denying Mr. Jeffrey Becker's Freedom of Information Act request as to those two records. Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing September 2, 2025 Page 8 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and the Will County Land Use Department as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEYGENJRJ\\)11 ~ By: /L-~ --L-/01~ R. Dougta: Re« Chief Deputy Attorney General Office of the fllinois Attorney General CERTIFICATE OF SERVICE Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25- 012) upon: Mr. Jeffrey Becker 7600 West Monee-Manhattan Road Monee, Illinois 60449 jjbstudly@aol.com Mr. Colin Duesing FOIA Officer Will County Land Use Department 58 East Clinton Street, Suite 100 Joliet, Illinois 60432 foia@willcounty land use. com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on September 2, 2025. Eaie Steinberg Senior Assistant Attorn~ 4,i(l~mt-- Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-5201","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA Section 7(1)(k), construction-related technical documents submitted to a public body as part of a permit application are exempt from disclosure when the underlying project is not built with public funds. The decisive fact was that the proposed solar facility was a private commercial development, with no evidence of any public funding for its construction. Therefore, the Department properly withheld the engineers' technical submissions without needing to consider other claimed exemptions.","card_headline":"Construction documents for a solar facility permit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-87009/","full_text":"This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Will County Land Use Department (Department) did not violate FOIA by withholding engineers' technical submissions related to a proposed commercial solar facility in response to Mr. Jeffrey Becker's May 20, 2025, FOIA request. BACKGROUND On May 20, 2025, Mr. Becker submitted a FOIA request to the Department seeking a copy of \"the filed application, with all of its related documents, submitted by Possibility Place Nursery, Tristan Shaw or a Shaw family member, Zaroka Solar LLC, or 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (2 I 7) 782-I 090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l II i noisA ttomeyGenera I. gov •,. ___,...... ~ 400S Mr. Jeffrey Becker Mr. Colin Duesing \n\nCultivate Power, LLC for a Special Use Permit for a Commercial Solar Energy facility, located at 7548 West Monee-Manhattan Rd. Monee IL 60449.\"1 On May 21, 2025, the Department granted the request in part and denied the request in part. The Department disclosed copies of numerous responsive records, such as an application, data sheets, studies, letters, reports, deeds, and agreements, but made certain redactions under sections 7(1)(b), 7(1)(d), 7(1)(f), 7(1)(g), and 7(1)(k) of FOIA;2 the Department also withheld two records in their entireties pursuant to section 7(1)(k). Specifically, the Department stated: Documents removed in their entirety in accordance with Section 7[1](k) include: • Project # 02500376.001 by Farnsworth Group of Lisle, Illinois • Project # 268262051 by Kimley Horn of Deerfield, Illinois These documents, or their subsequent replacement/revisions, may become part of the public record during the public approval process. If entered into the public record at that time, they may be requested for public review.Pl On May 23, 2025, Mr. Becker submitted a Request for Review contesting the Department's assertion of section 7(1)(k) to withhold those two records. Specifically, he contended that: The Department has failed to set forth any basis on which the disclosure of these reports regarding the design of a proposed solar facility on agricultural land \"would compromise security.\" Unlike all of the government buildings and large enclosed structures specifically enumerated in subsection (k), there are no buildings involved in this project. Moreover, the Department has already disclosed, as a part of its FOIA response, the precise identity of the transformers and utility-scale inverters to be employed in the project. If there were any security concerns, these components would not have been publicly disclosed. In short, there is nothing in these engineering designs that would \"compromise security\" if disclosed. The proposed solar facility will be conspicuous to everyone in the area and will be composed of thousands of solar panels mounted on frames. 1F reedom of Information Act Request Form, Will County Land Use Department, submitted by Jeffrey Becker to Will County Land Use Department (May 20, 2025). 25 ILCS I 40/7(I)(b), (I)(d), (I)(f), (I)(g) (I)(k) (West 2024). 3E-mail from Colin Duesing, Certified FOIA Officer, to Jeffrey Becker (May 21, 2025). Office of the fllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing \n\nIf there is any portion of these that \"would compromise security,\" the Department has failed to identify it. And even if there were conceivably something in the reports that would compromise security, the plain language of subsection (k) permits the Department to withhold the contents of the reports \"only to the extent that disclosure would compromise security. \"[4l On June 3, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department. The Public Access Bureau also sent the Department a letter requesting unredacted copies of the withheld records for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the asserted exemption. 5 On June 5, 2025, the Department provided this office with the requested materials, maintaining that it properly withheld the disputed records under section 7(1)(k) of FOIA.6 On the same date, this office forwarded a copy of the Department's answer to Mr. Becker and notified him of his opportunity to reply in writing.7 He did not submit a written reply. On June 9, 2025, the Department sent this office and Mr. Becker a brief e-mail clarifying a portion of its answer.8 On July 21, 2025, this office extended the time for issuing a binding opinion by 30 business days, to September 3, 2025, pursuant to section 9.5(f) of FOIA.9 4 Letter from Jeffrey Becker to Public Access Counselor, Office of the Attorney General (May 23, 2025), at 2. 5 Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Colin Duesing, FOIA Officer, Will County Land Use Department (June 3, 2025). 6E-mail from Colin Duesing, Certified FOIA Officer, [Will County Land Use Department], to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (June 5, 2025). 7 Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeffrey Becker (June 5, 2025). 8E-mail from Colin Duesing Certified FOIA Officer, [Will County Land Use Department], to [Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] and [Jeffrey Becker] (June 9, 2025). 9 Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Jeffrey Becker and Colin Duesing, FOIA Officer, Will County Land Use Department (July 21, 2025). Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing \n\nANALYSIS In section 1 of FOIA (5 ILCS 140/1 (West 2024)), \"it is declared to be the public policy of the State of Illinois that all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\" Accordingly, courts have explained that \"the core purpose of the FOIA is to expose what the government is doing, not what its private citizens are up to.\"' Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188,211 (2004) (quoting Lakin Law Firm, P.C. v. FTC, 352 F.3d 1122, 1124 (7th Cir. 2003)). Section 1.2 of FOIA (5 ILCS 140/1.2 (West 2024)) provides that \" [a)11 records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" Section 7(1)(k) of FOIA Section 7(1)(k) of FOIA exempts from disclosure: Architects' plans, engineers' technical submissions, and other construction related technical documents for projects [...] 13 Letter from Ashlyn Kirby, Development Analyst I, Will County Illinois Land Use Department, to Emily Carroll (May 2 I, 2025). 14E-mail from Colin Duesing, Certified FOIA Officer, [Will County Land Use Department], to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau] (June 5, 2025). Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing \n\n\"[a]rchitects' plans, engineers' technical submissions, and other construction related technical documents, but only to the extent that disclosure would compromise security.\" Plainly, the General Assembly chose to apply different standards to projects constructed or developed in whole or in part with public funds as opposed to projects that did not receive public funding, in keeping with FOIA's purpose of ensuring that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of this Act.\"15 The General Assembly chose to make building plans for publicly funded buildings public to the extent disclosure would not compromise security, while creating a blanket exemption for privately-funded building plans. As noted above, in response to Mr. Becker's FOIA request, the Department disclosed a substantial volume of records pertaining to the private party seeking to develop the proposed solar farm and the governmental review of the project. The Department withheld only two documents from Mr. Becker, and this office's confidential review confirmed that the withheld documents are construction-related technical documents commissioned by the private company pursuing this commercial solar farm. It is these types of records, whether for private homeowners or larger-scale private developers, that section 7(l)(k) is intended to protect. Because public funds are not being used to construct or develop the project, the plain language of section 7(l)(k) exempts those records from disclosure regardless of whether disclosure would compromise security. Accordingly, the Department has sustained its burden of proving by clear and convincing evidence that the contested records are exempt from disclosure under section 7(l)(k) ofFOIA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On May 20, 2025, Mr. Jeffrey Becker submitted a FOIA request to the Will County Land Use Department seeking copies of records pertaining to the proposed development of a private solar facility. 2) On May 21, 2025, the Department granted the request in part but, in relevant part, denied two construction-related technical documents pursuant to section 7(l)(k) of FOIA. 3) On May 23, 2025, Mr. Becker submitted a Request for Review contesting the Department's denial of two construction-related technical documents. The Request for Review 155 lLCS 140/1 (West 2024). Office of the fllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing \n\nwas timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On June 3, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and asked it to provide unredacted copies of the disputed records for this office's confidential review, together with a written explanation of the factual and legal basis for the applicability of section 7(1)(k). 5) On June 5, 2025, the Department provided this office with unredacted copies of the withheld records and its written explanation. On the same date, the Public Access Bureau forwarded a copy of that answer to Mr. Becker and notified him of his opportunity to reply to that answer. On June 9, 2025, the Department sent this office and Mr. Becker an e-mail correcting a scrivener's error in its response. Mr. Becker did not submit a reply. 6) On July 21, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to September 3, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 7(l)(k) of FOIA exempts from disclosure \"[a]rchitects' plans, engineers' technical submissions, and other construction related technical documents for projects not constructed or developed in whole or in part with public funds[.]\" The exemption applies to the same type of records \"for projects construed or developed with public funds, * * *, but only to the extent that disclosure would compromise security.\" 8) The Department sustained its burden by proving by clear and convincing evidence that the section 7(l)(k) exemption applies because the withheld records are construction-related technical documents pertaining to a project that will not be constructed or developed with public funds. Therefore, it is the opinion of the Attorney General that the Will County Land Use Department did not violate the requirements of FOIA by partially denying Mr. Jeffrey Becker's Freedom of Information Act request as to those two records. Office of the Tllinois Attorney General Mr. Jeffrey Becker Mr. Colin Duesing \n\nThis opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and the Will County Land Use Department as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEYGENJRJ\\)11 ~ By: /L-~ --L-/01~ R. Dougta: Re« Chief Deputy Attorney General Office of the fllinois Attorney General CERTIFICATE OF SERVICE Edie Steinberg, Senior Assistant Attorney General, Public Access Bureau, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25- 012) upon: Mr. Jeffrey Becker 7600 West Monee-Manhattan Road Monee, Illinois 60449 jjbstudly@aol.com Mr. Colin Duesing FOIA Officer Will County Land Use Department 58 East Clinton Street, Suite 100 Joliet, Illinois 60432 foia@willcounty land use. com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on September 2, 2025. Eaie Steinberg Senior Assistant Attorn~ 4,i(l~mt-- Edie Steinberg Senior Assistant Attorney General Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-5201"}
{"id":207,"orig_master_id":19407,"dup_master_id":19181,"dup_sha256":"d9ed4eef48886c44175846fad4568f6f25b6674794d03135729d61d8aa11a381","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-08-12","case_number":"2025 PAC 86835","request_numbers":null,"title":"Improper Private Meeting","filename":"PUBLIC ACCESS OPINION 25-011  (Request for Review 2025 PAC 86835).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-011  (Request for Review 2025 PAC 86835).pdf","word_count":2384,"summary":"This document is a binding opinion issued by the Illinois Attorney General regarding a complaint about the Washington County Board's violation of the Open Meetings Act by holding an improper private meeting.","plain_summary":"The requester alleged that a county board held an improper private meeting when a majority of a quorum of its members attended an informational presentation on a proposed energy project hosted by a private company. The Public Access Counselor held that because the members engaged in an interactive discussion with the company about a project affecting the county, the gathering constituted a \"meeting\" subject to the Open Meetings Act despite lacking formal notice. The board was directed to generate minutes summarizing the presentation or have the company recreate it at a properly noticed open meeting.","holding":"The Washington County Board violated the Open Meetings Act by holding an improper private meeting on April 30, 2025.","legal_question":"Did the Washington County Board violate the Open Meetings Act by holding an improper private meeting?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Washington County Board","requesting_party":"Czajkowski and Mr. Meyer","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The Board attended an informational meeting hosted by a private company without providing public notice or keeping minutes as required by the Open Meetings Act.","ocr_status":"ok","ocr_quality":90.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-011.pdf","sha256":"01e385010ea702fc22ed10451ab85176d689f36ff217791b817779ac68c3f7bf","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","meeting notice","public meeting","Open Meetings Act"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL August 12, 2025 ATTORNEY GENERAL PUBLIC ACCESS OPINION 25-011 (Request for Review 2025 PAC 86835) OPEN MEETINGS ACT: Improper Private Meeting Ms. Mary Czajkowski 26005 Highline Road Ashley, Illinois 62808 The Honorable David Meyer, Chairman Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 Dear Ms. Czajkowski and Mr. Meyer: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Washington County Board (Board) violated OMA by holding an improper private meeting on April 30, 2025. BACKGROUND On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board improperly held a meeting on April 30, 2025, without following the requirements of OMA. 1 In particular, she asserted that the Board did not post an agenda or prepare minutes of an informational meeting hosted by Pattern Energy, a 1OMA- Request for Review by Public Access Counselor (PAC) form submitted by Mary Czajkowski (May 15, 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. II I i noisA ttomeyGenera I. gov Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 2 private company, which Board members attended.2 On May 22, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Ms. Czajkowski's allegations and address whether a majority of a quorum of Board members attended the April 30, 2025, event.3 This office asked the Board to explain whether the subjects discussed at the event constituted discussions of public business regarding Washington County and to provide copies of any notice, agenda, meeting minutes, and recordings of the event.4 On May 30, 2025, the Washington County State's Attorney submitted a written response on behalf of the Board. 5 On that same date, this office forwarded a copy of the Board's response to Ms. Czajkowski and notified her of her opportunity to reply.6 Ms. Czajkowski did not submit a reply. On July 1, 2025, the Public Access Bureau sent a second letter to the Board asking for a detailed description of what occurred at the April 30, 2025, event, including how Pattern Energy presented information and how Board members participated in the gathering. 7 This office also asked the Board to provide a list of attendees, copies of any notes taken by the attendees, and copies of any information Pattern Energy provided to the attendees.8 This office also requested copies of any correspondence to or from any Board members related to the April 30, 2025, event, and minutes of any Board or committee meetings where the April 30, 2025, event, Pattern Energy, or the Kaskaskia Renewables project were discussed.9 2OMA - Request for Review by Public Access Counselor (PAC) form submitted by Mary Czajkowski (May 15, 2025). 3Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board (May 22, 2025), at I. 4Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board (May 22, 2025), at I. 5Letter from Crystal May, Washington County State's Attorney, to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (May 30, 2025). 6Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski (May 30, 2025). 7Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025), at 2. 8Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025). 9Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025). Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 3 On July 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to August 12, 2025, pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2024)). ,o On July 14, 2025, the Board provided a written answer in response to this office's July 1, 2025, correspondence, as well as copies of the Board's March 11, 2025, meeting agenda and minutes, and copies of five e-mails pertaining to the April 30, 2025, event. 11 On July 16, 2025, this office forwarded a copy of the Board's additional response to Ms. Czajkowski. 12 On July 20, 2025, Ms. Czajkowski submitted a reply.13 On July 22, 2025, this office requested that the Board provide a copy of the rules that it referenced in its May 30, 2025, response. 14 Later that day, the Board provided via e-mai 1 a copy of Chapter 1 of the Washington County Code, which covers, among other things, Board procedures. 15 ANALYSIS \"It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business.\" 5 ILCS 120/1 (West 2024). \"The Open Meetings Act provides that public agencies exist to aid in the conduct of the people's business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). For the requirements of OMA to apply, a gathering must constitute a \"meeting\" as defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)): \"Meeting\" means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such 10Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski, and The Honorable Crystal May, Washington County State's Attorney (July 11, 2025). 11Letter from Crystal May, State's Attorney, Washington County, to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (July 14, 2025). 12Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski (July 16, 2025). 13Letter from Mary Czajkowski to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (July 20, 2025). 14E-mail from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to State's Attorney [Crystal] May (July 22, 2025). 15E-mail from Crystal May, State's Attorney, Washington County, Illinois, to [Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (July 22, 2025), attaching Washington County Code, Chapter I, Administration (May 2024). Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 4 as, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the membe [...] ose of collecting information. See 5 ILCS 120/1 (West 2024) (\"The General Assembly further declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\") (Emphasis added.) Under these circumstances, this office concludes that the gathering of seven Board members on April 30, 2025, constituted a \"meeting\" subject to the requirements of OMA. Accordingly, because the Board did not provide advance public notice of the April 30, 2025, meeting or otherwise follow OMA's procedures and requirements, the Board violated OMA on that date. FINDINGS AND CONCLUSIONS After full examination based on the evidence available, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 30, 2025, seven members of the Washington County Board attended an informational presentation hosted by Pattern Energy. 2) On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board violated OMA by attending the informational presentation without adhering to the advance notice requirements of OMA. Ms. Czajkowski's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)). 3) On May 22, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Board and asked it to provide copies of any notices, agendas, minutes, and recordings from the April 30, 2025, presentation. This office also requested a written response to the allegation that this gathering constituted an improper private meeting, including an explanation of the extent to which the Board discussed the transaction of public business. 4) On May 30, 2025, the Board furnished its written response. The same day, this office forwarded a copy of the Board's response to Ms. Czajkowski; she did not reply. 5) On July 1, 2025, the Public Access Bureau requested additional information from the Board regarding the April 30, 2025, informational presentation. 42E-mail from Daniel R. Luna Fuller, Washington County Board [Member], District I, to [Crystal May, State's Attorney, Washington County] (July 8, 2025). Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 11 6) On July 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to August 12, 2025, pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2024)). 7) On July 14, 2025, the Board provided an additional written response, copies of e-mail correspondence related to the presentation, and the agenda and minutes from the March 11, 2025, Board meeting, where a Board member mentioned the opportunity to attend a presentation hosted by Pattern Energy. 8) On July 16, 2025, this office forwarded a copy of the Board's additional response to Ms. Czajkowski; she replied on July 20, 2025. 9) Section 1.02 of OMA defines a \"meeting\" in relevant part, as \"any gathering * * * of a majority of a quorum of the members of a public body held for the purpose of discussing public business[.]\" The full Board consists of 15 members. Accordingly, eight Board members constitute a quorum and five members are a majority of a quorum. 10) If a gathering of public body members is determined to be a \"meeting,\" then all the requirements of OMA apply, including proper posting of notice and an agenda, holding the meeting at a specified time and place that is convenient and open to the public, keeping minutes, and allowing public comment. 11) Seven members of the Board attended the April 30, 2025, presentation, in which Board members engaged in an interactive discussion with representatives from Pattern Energy about its proposed Kaskaskia Renewables energy project, a subject which constitutes public business of the Board with potentially wide ranging impacts on Washington County. 12) Because discussions of public business for the purpose of collecting information are the collective inquiry of the deliberative process, the April 30, 2025, presentation constituted a \"meeting\" subject to the requirements of OMA. In accordance with these findings of fact and conclusions of law, the Public Access Bureau concludes that the Board violated OMA by holding a meeting on April 30, 2025, without providing advance public notice or complying with the other requirements of OMA. The Board is directed to generate and approve written minutes for the meeting. Alternatively, if the Board determines that generating minutes that thoroughly summarize the information presented and discussed is unfeasible due to a lack of notes and other documentation of the meeting, the Board may invite Pattern Energy to recreate the presentation during an open meeting that fully complies with the requirements of OMA. The Board is also directed to ensure that future gatherings in which five or more of its members engage in deliberative discussions of public business are held in full compliance with the requirements of OMA. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 Ms. Mary Czajkowski The Honorable David Meyer August 12, 2025 Page 12 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Mary Czajkowski as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL 72 / L, By: R. Douglas Rees Chief Deputy Attorney General cc: The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-011) upon: Ms. Mary Czajkowski 26005 Highline Road Ashley, Illinois 62808 czajkowskimc@gmail.com The Honorable David Meyer, Chairman Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 ddmeyerfarms@att.net The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 Crystal.May@washingtonco.illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on August 12, 2025. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident complained that the Washington County Board held a private meeting with a private company without following public meeting rules. The Attorney General's office investigated and found that because a majority of the Board attended the informational session, it constituted a public meeting that required proper notice, an agenda, and minutes. The Board violated the law by failing to treat this gathering as an official public meeting.","card_headline":"A county board's private informational meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-86835/","full_text":"This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Washington County Board (Board) violated OMA by holding an improper private meeting on April 30, 2025. BACKGROUND On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board improperly held a meeting on April 30, 2025, without following the requirements of OMA. 1 In particular, she asserted that the Board did not post an agenda or prepare minutes of an informational meeting hosted by Pattern Energy, a 1OMA- Request for Review by Public Access Counselor (PAC) form submitted by Mary Czajkowski (May 15, 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. II I i noisA ttomeyGenera I. gov Ms. Mary Czajkowski The Honorable David Meyer \n\nprivate company, which Board members attended.2 On May 22, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Ms. Czajkowski's allegations and address whether a majority of a quorum of Board members attended the April 30, 2025, event.3 This office asked the Board to explain whether the subjects discussed at the event constituted discussions of public business regarding Washington County and to provide copies of any notice, agenda, meeting minutes, and recordings of the event.4 On May 30, 2025, the Washington County State's Attorney submitted a written response on behalf of the Board. 5 On that same date, this office forwarded a copy of the Board's response to Ms. Czajkowski and notified her of her opportunity to reply.6 Ms. Czajkowski did not submit a reply. On July 1, 2025, the Public Access Bureau sent a second letter to the Board asking for a detailed description of what occurred at the April 30, 2025, event, including how Pattern Energy presented information and how Board members participated in the gathering. 7 This office also asked the Board to provide a list of attendees, copies of any notes taken by the attendees, and copies of any information Pattern Energy provided to the attendees.8 This office also requested copies of any correspondence to or from any Board members related to the April 30, 2025, event, and minutes of any Board or committee meetings where the April 30, 2025, event, Pattern Energy, or the Kaskaskia Renewables project were discussed.9 2OMA - Request for Review by Public Access Counselor (PAC) form submitted by Mary Czajkowski (May 15, 2025). 3 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board (May 22, 2025), at I. 4 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board (May 22, 2025), at I. 5 Letter from Crystal May, Washington County State's Attorney, to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (May 30, 2025). 6 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski (May 30, 2025). 7 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025), at 2. 8 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025). 9 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to The Honorable David Meyer, Chairman, Washington County Board, and The Honorable Crystal May, Washington County State's Attorney (July I, 2025). Ms. Mary Czajkowski The Honorable David Meyer \n\nOn July 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to August 12, 2025, pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2024)).,o On July 14, 2025, the Board provided a written answer in response to this office's July 1, 2025, correspondence, as well as copies of the Board's March 11, 2025, meeting agenda and minutes, and copies of five e-mails pertaining to the April 30, 2025, event. 11 On July 16, 2025, this office forwarded a copy of the Board's additional response to Ms. Czajkowski. 12 On July 20, 2025, Ms. Czajkowski submitted a reply.13 On July 22, 2025, this office requested that the Board provide a copy of the rules that it referenced in its May 30, 2025, response. 14 Later that day, the Board provided via e-mai 1 a copy of Chapter 1 of the Washington County Code, which covers, among other things, Board procedures. 15 ANALYSIS \"It is the public policy of this State that public bodies exist to aid in the conduct of the people's business and that the people have a right to be informed as to the conduct of their business.\" 5 ILCS 120/1 (West 2024). \"The Open Meetings Act provides that public agencies exist to aid in the conduct of the people's business and that the intent of the Act is to assure that agency actions be taken openly and that their deliberations be conducted openly.\" Gosnell v. Hogan, 179 Ill. App. 3d 161, 171 (1989). For the requirements of OMA to apply, a gathering must constitute a \"meeting\" as defined by section 1.02 of OMA (5 ILCS 120/1.02 (West 2024)): \"Meeting\" means any gathering, whether in person or by video or audio conference, telephone call, electronic means (such 10 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski, and The Honorable Crystal May, Washington County State's Attorney (July 11, 2025). 11 Letter from Crystal May, State's Attorney, Washington County, to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (July 14, 2025). 12 Letter from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Mary Czajkowski (July 16, 2025). 13 Letter from Mary Czajkowski to Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (July 20, 2025). 14E-mail from Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to State's Attorney [Crystal] May (July 22, 2025). 15E-mail from Crystal May, State's Attorney, Washington County, Illinois, to [Caleb L. Briscoe, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (July 22, 2025), attaching Washington County Code, Chapter I, Administration (May 2024). Ms. Mary Czajkowski The Honorable David Meyer \n\nas, without limitation, electronic mail, electronic chat, and instant messaging), or other means of contemporaneous interactive communication, of a majority of a quorum of the membe [...] ose of collecting information. See 5 ILCS 120/1 (West 2024) (\"The General Assembly further declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\") (Emphasis added.) Under these circumstances, this office concludes that the gathering of seven Board members on April 30, 2025, constituted a \"meeting\" subject to the requirements of OMA. Accordingly, because the Board did not provide advance public notice of the April 30, 2025, meeting or otherwise follow OMA's procedures and requirements, the Board violated OMA on that date. FINDINGS AND CONCLUSIONS After full examination based on the evidence available, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On April 30, 2025, seven members of the Washington County Board attended an informational presentation hosted by Pattern Energy. 2) On May 15, 2025, Ms. Mary Czajkowski submitted a Request for Review to the Public Access Bureau alleging that the Board violated OMA by attending the informational presentation without adhering to the advance notice requirements of OMA. Ms. Czajkowski's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)). 3) On May 22, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Board and asked it to provide copies of any notices, agendas, minutes, and recordings from the April 30, 2025, presentation. This office also requested a written response to the allegation that this gathering constituted an improper private meeting, including an explanation of the extent to which the Board discussed the transaction of public business. 4) On May 30, 2025, the Board furnished its written response. The same day, this office forwarded a copy of the Board's response to Ms. Czajkowski; she did not reply. 5) On July 1, 2025, the Public Access Bureau requested additional information from the Board regarding the April 30, 2025, informational presentation. 42E-mail from Daniel R. Luna Fuller, Washington County Board [Member], District I, to [Crystal May, State's Attorney, Washington County] (July 8, 2025). Ms. Mary Czajkowski The Honorable David Meyer \n\n6) On July 11, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 21 business days, to August 12, 2025, pursuant to section 3.5(e) of OMA (5 ILCS 120/3.5(e) (West 2024)). 7) On July 14, 2025, the Board provided an additional written response, copies of e-mail correspondence related to the presentation, and the agenda and minutes from the March 11, 2025, Board meeting, where a Board member mentioned the opportunity to attend a presentation hosted by Pattern Energy. 8) On July 16, 2025, this office forwarded a copy of the Board's additional response to Ms. Czajkowski; she replied on July 20, 2025. 9) Section 1.02 of OMA defines a \"meeting\" in relevant part, as \"any gathering * * * of a majority of a quorum of the members of a public body held for the purpose of discussing public business[.]\" The full Board consists of 15 members. Accordingly, eight Board members constitute a quorum and five members are a majority of a quorum. 10) If a gathering of public body members is determined to be a \"meeting,\" then all the requirements of OMA apply, including proper posting of notice and an agenda, holding the meeting at a specified time and place that is convenient and open to the public, keeping minutes, and allowing public comment. 11) Seven members of the Board attended the April 30, 2025, presentation, in which Board members engaged in an interactive discussion with representatives from Pattern Energy about its proposed Kaskaskia Renewables energy project, a subject which constitutes public business of the Board with potentially wide ranging impacts on Washington County. 12) Because discussions of public business for the purpose of collecting information are the collective inquiry of the deliberative process, the April 30, 2025, presentation constituted a \"meeting\" subject to the requirements of OMA. In accordance with these findings of fact and conclusions of law, the Public Access Bureau concludes that the Board violated OMA by holding a meeting on April 30, 2025, without providing advance public notice or complying with the other requirements of OMA. The Board is directed to generate and approve written minutes for the meeting. Alternatively, if the Board determines that generating minutes that thoroughly summarize the information presented and discussed is unfeasible due to a lack of notes and other documentation of the meeting, the Board may invite Pattern Energy to recreate the presentation during an open meeting that fully complies with the requirements of OMA. The Board is also directed to ensure that future gatherings in which five or more of its members engage in deliberative discussions of public business are held in full compliance with the requirements of OMA. This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 Ms. Mary Czajkowski The Honorable David Meyer \n\net seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Ms. Mary Czajkowski as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL 72 / L, By: R. Douglas Rees Chief Deputy Attorney General cc: The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-011) upon: Ms. Mary Czajkowski 26005 Highline Road Ashley, Illinois 62808 czajkowskimc@gmail.com The Honorable David Meyer, Chairman Washington County Board 101 East St. Louis Street Nashville, Illinois 62263 ddmeyerfarms@att.net The Honorable Crystal May State's Attorney Washington County, Illinois 125 East Elm Street Nashville, Illinois 62263 Crystal.May@washingtonco.illinois.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on August 12, 2025. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756"}
{"id":208,"orig_master_id":19182,"dup_master_id":19410,"dup_sha256":"195dff3e0c66946a94e9b1b6ed11ee64eee95313ec722fcefe879dc7680c3331","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-12-03","case_number":"2025 PAC 88767","request_numbers":null,"title":"Improper Basis for Assessing Fees for Copies of Video Footage Maintained in an Electronic Format","filename":"PUBLIC ACCESS OPINION 25-014  (Request for Review 2025 PAC 88767).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 25-014  (Request for Review 2025 PAC 88767).pdf","word_count":2400,"summary":"Attorney General: Mattoon Police Department assessed improper fee in response to Nicholas T. Diener's FOIA request . Request for Review was issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act .","plain_summary":"The requester sought body-worn and dashboard camera footage of an incident involving himself, and a police department demanded pre-payment of a per-minute redaction fee before releasing the video. The Public Access Counselor held that FOIA authorizes a public body to charge only the actual cost of the recording medium for electronic copies, and that the cost of performing redactions is not a chargeable fee under the Act. The department was directed to provide the video footage subject to appropriate redactions and a fee no greater than the actual cost of the recording medium.","holding":"The Mattoon Police Department violated FOIA by assessing an improper fee for the redaction of electronic video records.","legal_question":"Whether a public body may assess a fee for the time spent redacting electronic video records pursuant to a FOIA request.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/6(b), 5 ILCS 140/1, 5 ILCS 140/3(b), 5 ILCS 140/6(a), 235 ILCS 140/6(a), 5 ILCS 140/7(1), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Mattoon Police Department","requesting_party":"Diener and Mr. Jones","pac_outcome":"UNCLEAR","pac_law_type":"FOIA","subject_category":"fees","subject_description":"The assessment of fees for the redaction of body-worn and dashboard camera footage.","ocr_status":"ok","ocr_quality":88.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-014.pdf","sha256":"4d28cd436609e998292b7a55a51c3cc4e7c0a1b4cf30c4cb0facd885ced31dc1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["fees","police records","body camera","redaction","FOIA"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL December 3, 2025 PUBLIC ACCESS OPINION 25-014 (Request for Review 2025 PAC 88767) FREEDOM OF INFORMATION ACT: Improper Basis for Assessing Fees for Copies of Video Footage Maintained in an Electronic Format Mr. Nicholas T. Diener 212 West Jefferson Street Arcola, Illinois 61910 Mr. Daniel C. Jones City Attorney Smith, Pappas & Jones Ltd. | 622 Jackson Avenue Charleston, Hlinois 61920 Dear Mr. Diener and Mr. Jones: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Mattoon Police Department (Department) assessed an improper fee in response to Mr. Nicholas T. Diener's August 13, 2025, FOIA request. BACKGROUND On August 13, 2025, Mr. Diener submitted a FOIA request to the Department seeking records concerning an incident on July 1, 2025, in which he was involved, including 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 ¢ Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. IllinoisAttorneyGeneral.gov pe ED RS ints Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 2 copies of all \"body-worn camera footage and dashboard camera footage[.]\"! On August 18, 2025, the Department e-mailed Mr. Diener to inform him that the responsive video recordings consist of approximately four to five hours of footage \"that must have redactions made[]\"* to certain portions before disclosure. The Department informed Mr. Diener that \"[t]his will be costly, but we must follow FOIA guidelines on exemptions. Prior to making redactions to the footage, we require pre-payment.\"? The Department asked Mr. Diener if he preferred to narrow his request to a specific portion of the footage to reduce the cost.4 Mr. Diener replied by requesting \"a written itemized estimate of any fees the [D]epartment intendtso charge for the production of these records, including a breakdown of labor, material, and any other claimed costs.\"> Mr. Diener's e-mail to the Department indicated that he \"wish[ed] to proceed with my original request, pending review of the detailed cost estimate.\"° In an August 20, 2025, letter, the Department responded that the \"video requests total 4.5 hours of video[,]\" or 270 minutes, and that it charges \"$2.58 per minute to redact.\"’ The Department informed Mr. Diener that pursuant to section 6(b) of FOIA (5 ILCS 140/6(b) (West 2024)), he was required to pay a fee of $696.60 to obtain the requested video footage.® On August 21, 2025, Mr. Diener submitted a Request for Review to the Public Access Counselor contesting that fee.? Mr. Diener argued that the Department's \"demand [for fees] is based entirely on redaction costs, which are non-chargeable by statute.\"!° 'E-mail from Nicholas T. Diener to FOIA Officer, [Mattoon Police Department] (August 13, 2025). E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). ‘E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). 5E-mail from Nicholas Diener to [Heather] Smith (undated). °E-mail from Nicholas Diener to [Heather] Smith (undated). 7Letter from Ryan Hurst, Deputy Chief of Police, Mattoon Police Department, to Nicholas T. Diener (August 20, 2025). *Letter from Ryan Hurst, Deputy Chief of Police, Mattoon Police Department, to Nicholas T. Diener (August 20, 2025). °E-mail from Nicholas T Diener to Public Access Counselor (August 21, 2025). '°F-mail from Nicholas T Diener to Public Access Counselor (August 21, 2025). Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 3 On September 8, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department.'! The Public Access Bureau also e-mailed the Department a letter requesting a detailed written explanation of the legal and factual bases for assessing the $696.60 fee for the requested video recordings!. On September 11, 2025, the Department's legal counsel provided a written answer to the Public Access Bureau.'? On September 18, 2025, this office forwarded a copy of the Department's answer to Mr. Diener and notified him of his opportunity to reply in writing.'* He did not submit a written reply. On October 20, 2025, this office extended the time for issuing a binding opinion by 30 business days, to December 3, 2025, pursuant to section 9.5(f) of FOIA.\"° ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS 140/1 (West 2024). FOIA should be \"liberally construe[d] * * * in favor of ease of access to public records on the part of any interested citizen.\" Sage Information Services v. Humm, 2012 IL App (Sth) 110580, 4 19. Section 3(b) of FOIA (5 ILCS 140/3(b) (West 2024)) provides: \"Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested.\" ''E-mail from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Ryan] Hurst, [Deputy Chief of Police, Mattoon Police Department] (September 8, 2025). \"7 etter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Ryan Hurst, Deputy Chief of Police, Mattoon Police Department (September 8, 2025), at 2. '3Letter from Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd., to [Shannon] Barnaby, [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (undated). '4Letter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Nicholas T. Diener (September 18, 2025). 'SLetter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Nicholas T. Diener and Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd. (October 20, 2025), at 1. Office of the Mlinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 4 Section 6(a) of FOIA (5 ILCS 140/6(a) (West 2024)) provides: When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. Ifa request is not a request for a commercial purpose or a voluminous request, a public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format. (Emphasis added.) Section 6(b) of FOIA provides, in pe [...] s furthers the public policy underlying a specific exemption.” 5 ILCS 140/1 (West 2024). Further, the General Assembly anticipated circumstances in which a public body would make redactions to documents before disclosing the remaining information. Section 7(1) of FOIA (5 ILCS 140/7(1) (West 2024)) provides: When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying, (Emphasis added.) If the General Assembly had intended to allow a public body to charge fees to reimburse the actual cost it incurred to make redactions to copies of records in electronic format, it would have expressly authorized such a fee in section 6(a) of FOIA. Requiring a requester to reimburse a public body for expenses such as the cost of using redaction software cannot be reconciled with the plain language of sections 6(a) and 6(b) of FOIA and constitutes a restraint on access to information that contradicts the intent of FOIA. Therefore, this office concludes that the Department improperly assessed Mr. Diener $696.60 to obtain the video footage that he requested. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 13, 2025, Mr. Nicholas T. Diener submitted a FOIA request to the Mattoon Police Department seeking copies of video recordings pertaining to an incident involving himself and police officers. >Letter from Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd., to [Shannon] Barnaby, [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (undated), at [2]. Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 9 2) On August 18, 2025, the Department informed Mr. Diener that it had approximately four to five hours of responsive footage, portions of which were subject to redactions under FOIA. The Department told Mr. Diener he would need to pre-pay the costs for those redactions before the footage would be disclosed to him. The Department asked Mr. Diener if he preferred to narrow his request to specific portions of the footage to reduce the cost. Mr. Diener declined to limit the scope of his request at that time and asked the Department to provide a full accounting of the estimated fees. 3) On August 20, 2025, the Department assessed Mr. Diener $696.60 to obtain the requested video footage, based on a per-minute fee of $2.58 to perform the redactions to four and one-half hours of responsive footage. 4) On August 21, 2025, Mr. Diener submitted a Request for Review asserting that the Department constructively denied his request by improperly assessing fees associated with the redactions. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 5) On September 8, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and requested a detailed explanation of the Department's legal and factual bases for the fee it assessed to Mr. Diener. 6) On September 11, 2025, the Department provided this office with its written explanation. 7) On September 18, 2025, the Public Access Bureau forwarded a copy of that answer to Mr. Diener and notified him of his opportunity to reply. Mr. Diener did not submit a reply. 8) On October 20, 2025, this office extended the time for issuing a binding opinion by 30 business days, to December 3, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) Section 6(a) of FOIA, which governs fees for copies of electronic records, provides that a public body may only charge a requester \"for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium[,]\" unless \"the General Assembly expressly provides[]\" otherwise. 10) Section 6(b) of FOIA, which governs fees for copies of records maintained in paper format, permits a public body to \"charge fees reasonably calculated to reimburse its actual cost for reproducing the records[,]\" such as \"copies in color or in a size other than letter or legal[.]\" Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones December 3, 2025 Page 10 11) Because the Department maintains the requested video footage in electronic format, section 6(a) of FOIA limits the copying fee to the actual cost of the recording medium. Therefore, it is the opinion of the Attorney General that the Mattoon Police Department assessed an improper fee in response to Mr. Nicholas T. Diener's August 13, 2025, Freedom of Information Act request. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Diener with a copy of the withheld video footage, subject to appropriate redactions, and assessing him a fee of no more than the actual cost of purchasing a recording medium. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Nicholas T. Diener as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAkit TD SOL, WAIVIE, NRAUU [PegGEN E By: f,a it;t a Chief Deputy Attorney General ce: Mr. Ryan Hurst Deputy Chief of Police Mattoon Police Department 1710 Wabash Avenue Mattoon, Illinois 61938 Office of the Illinois Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-014) upon: Mr. Nicholas T. Diener 212 West Jefferson Street Arcola, Illinois 61910 Nick_diener@yahoo.com Mr. Daniel C. Jones City Attorney Smith, Pappas & Jones Ltd. 622 Jackson Avenue Charleston, Illinois 61920 jones@spjlaw.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 3, 2025. Toshi M. Jones Bureau Chief Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Diener requested police video footage, and the Mattoon Police Department tried to charge him a fee to cover the time spent redacting the videos. The Attorney General's office ruled that this fee was illegal because FOIA does not allow public bodies to charge for the labor costs associated with redacting records. The Department must provide the records without charging for redaction time.","card_headline":"Police fee assessment for redacting camera footage","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-88767/","full_text":"This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that the Mattoon Police Department (Department) assessed an improper fee in response to Mr. Nicholas T. Diener's August 13, 2025, FOIA request. BACKGROUND On August 13, 2025, Mr. Diener submitted a FOIA request to the Department seeking records concerning an incident on July 1, 2025, in which he was involved, including 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 ¢ Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. IllinoisAttorneyGeneral.gov pe ED RS ints Mr. Nicholas T. Diener Mr. Daniel C. Jones \n\ncopies of all \"body-worn camera footage and dashboard camera footage[.]\"! On August 18, 2025, the Department e-mailed Mr. Diener to inform him that the responsive video recordings consist of approximately four to five hours of footage \"that must have redactions made[]\"* to certain portions before disclosure. The Department informed Mr. Diener that \"[t]his will be costly, but we must follow FOIA guidelines on exemptions. Prior to making redactions to the footage, we require pre-payment.\"? The Department asked Mr. Diener if he preferred to narrow his request to a specific portion of the footage to reduce the cost.4 Mr. Diener replied by requesting \"a written itemized estimate of any fees the [D]epartment intendtso charge for the production of these records, including a breakdown of labor, material, and any other claimed costs.\"> Mr. Diener's e-mail to the Department indicated that he \"wish[ed] to proceed with my original request, pending review of the detailed cost estimate.\"° In an August 20, 2025, letter, the Department responded that the \"video requests total 4.5 hours of video[,]\" or 270 minutes, and that it charges \"$2.58 per minute to redact.\"’ The Department informed Mr. Diener that pursuant to section 6(b) of FOIA (5 ILCS 140/6(b) (West 2024)), he was required to pay a fee of $696.60 to obtain the requested video footage.® On August 21, 2025, Mr. Diener submitted a Request for Review to the Public Access Counselor contesting that fee.? Mr. Diener argued that the Department's \"demand [for fees] is based entirely on redaction costs, which are non-chargeable by statute.\"!° 'E-mail from Nicholas T. Diener to FOIA Officer, [Mattoon Police Department] (August 13, 2025). E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). ‘E-mail from Heather Smith, Administrative Assistant, Mattoon Police Department, to [Nicholas T. Diener] (August 18, 2025). 5E-mail from Nicholas Diener to [Heather] Smith (undated). °E-mail from Nicholas Diener to [Heather] Smith (undated). 7 Letter from Ryan Hurst, Deputy Chief of Police, Mattoon Police Department, to Nicholas T. Diener (August 20, 2025). *Letter from Ryan Hurst, Deputy Chief of Police, Mattoon Police Department, to Nicholas T. Diener (August 20, 2025). °E-mail from Nicholas T Diener to Public Access Counselor (August 21, 2025). '°F-mail from Nicholas T Diener to Public Access Counselor (August 21, 2025). Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones \n\nOn September 8, 2025, the Public Access Bureau sent a copy of the Request for Review to the Department.'! The Public Access Bureau also e-mailed the Department a letter requesting a detailed written explanation of the legal and factual bases for assessing the $696.60 fee for the requested video recordings!. On September 11, 2025, the Department's legal counsel provided a written answer to the Public Access Bureau.'? On September 18, 2025, this office forwarded a copy of the Department's answer to Mr. Diener and notified him of his opportunity to reply in writing.'* He did not submit a written reply. On October 20, 2025, this office extended the time for issuing a binding opinion by 30 business days, to December 3, 2025, pursuant to section 9.5(f) of FOIA.\"° ANALYSIS \"It is a fundamental obligation of government to operate openly and provide public records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS 140/1 (West 2024). FOIA should be \"liberally construe[d] * * * in favor of ease of access to public records on the part of any interested citizen.\" Sage Information Services v. Humm, 2012 IL App (Sth) 110580, 4 19. Section 3(b) of FOIA (5 ILCS 140/3(b) (West 2024)) provides: \"Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested.\" ''E-mail from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Ryan] Hurst, [Deputy Chief of Police, Mattoon Police Department] (September 8, 2025). \"7 etter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Ryan Hurst, Deputy Chief of Police, Mattoon Police Department (September 8, 2025), at 2. '3 Letter from Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd., to [Shannon] Barnaby, [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (undated). '4 Letter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Nicholas T. Diener (September 18, 2025). 'SLetter from Shannon Barnaby, Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Nicholas T. Diener and Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd. (October 20, 2025), at 1. Office of the Mlinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones \n\nSection 6(a) of FOIA (5 ILCS 140/6(a) (West 2024)) provides: When a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then the public body shall furnish it in the format in which it is maintained by the public body, or in paper format at the option of the requester. A public body may charge the requester for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium. Ifa request is not a request for a commercial purpose or a voluminous request, a public body may not charge the requester for the costs of any search for and review of the records or other personnel costs associated with reproducing the records. Except to the extent that the General Assembly expressly provides, statutory fees applicable to copies of public records when furnished in a paper format shall not be applicable to those records when furnished in an electronic format. (Emphasis added.) Section 6(b) of FOIA provides, in pe [...] s furthers the public policy underlying a specific exemption.” 5 ILCS 140/1 (West 2024). Further, the General Assembly anticipated circumstances in which a public body would make redactions to documents before disclosing the remaining information. Section 7(1) of FOIA (5 ILCS 140/7(1) (West 2024)) provides: When a request is made to inspect or copy a public record that contains information that is exempt from disclosure under this Section, but also contains information that is not exempt from disclosure, the public body may elect to redact the information that is exempt. The public body shall make the remaining information available for inspection and copying, (Emphasis added.) If the General Assembly had intended to allow a public body to charge fees to reimburse the actual cost it incurred to make redactions to copies of records in electronic format, it would have expressly authorized such a fee in section 6(a) of FOIA. Requiring a requester to reimburse a public body for expenses such as the cost of using redaction software cannot be reconciled with the plain language of sections 6(a) and 6(b) of FOIA and constitutes a restraint on access to information that contradicts the intent of FOIA. Therefore, this office concludes that the Department improperly assessed Mr. Diener $696.60 to obtain the video footage that he requested. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 13, 2025, Mr. Nicholas T. Diener submitted a FOIA request to the Mattoon Police Department seeking copies of video recordings pertaining to an incident involving himself and police officers. >Letter from Daniel C. Jones, City Attorney, [City of Mattoon], Smith, Pappas & Jones, Ltd., to [Shannon] Barnaby, [Senior Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (undated), at [2]. Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones \n\n2) On August 18, 2025, the Department informed Mr. Diener that it had approximately four to five hours of responsive footage, portions of which were subject to redactions under FOIA. The Department told Mr. Diener he would need to pre-pay the costs for those redactions before the footage would be disclosed to him. The Department asked Mr. Diener if he preferred to narrow his request to specific portions of the footage to reduce the cost. Mr. Diener declined to limit the scope of his request at that time and asked the Department to provide a full accounting of the estimated fees. 3) On August 20, 2025, the Department assessed Mr. Diener $696.60 to obtain the requested video footage, based on a per-minute fee of $2.58 to perform the redactions to four and one-half hours of responsive footage. 4) On August 21, 2025, Mr. Diener submitted a Request for Review asserting that the Department constructively denied his request by improperly assessing fees associated with the redactions. The Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2024)). 5) On September 8, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Department and requested a detailed explanation of the Department's legal and factual bases for the fee it assessed to Mr. Diener. 6) On September 11, 2025, the Department provided this office with its written explanation. 7) On September 18, 2025, the Public Access Bureau forwarded a copy of that answer to Mr. Diener and notified him of his opportunity to reply. Mr. Diener did not submit a reply. 8) On October 20, 2025, this office extended the time for issuing a binding opinion by 30 business days, to December 3, 2025, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) Section 6(a) of FOIA, which governs fees for copies of electronic records, provides that a public body may only charge a requester \"for the actual cost of purchasing the recording medium, whether disc, diskette, tape, or other medium[,]\" unless \"the General Assembly expressly provides[]\" otherwise. 10) Section 6(b) of FOIA, which governs fees for copies of records maintained in paper format, permits a public body to \"charge fees reasonably calculated to reimburse its actual cost for reproducing the records[,]\" such as \"copies in color or in a size other than letter or legal[.]\" Office of the Illinois Attorney General Mr. Nicholas T. Diener Mr. Daniel C. Jones \n\n11) Because the Department maintains the requested video footage in electronic format, section 6(a) of FOIA limits the copying fee to the actual cost of the recording medium. Therefore, it is the opinion of the Attorney General that the Mattoon Police Department assessed an improper fee in response to Mr. Nicholas T. Diener's August 13, 2025, Freedom of Information Act request. Accordingly, the Department is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Diener with a copy of the withheld video footage, subject to appropriate redactions, and assessing him a fee of no more than the actual cost of purchasing a recording medium. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Nicholas T. Diener as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAkit TD SOL, WAIVIE, NRAUU [PegGEN E By: f,a it;t a Chief Deputy Attorney General ce: Mr. Ryan Hurst Deputy Chief of Police Mattoon Police Department 1710 Wabash Avenue Mattoon, Illinois 61938 Office of the Illinois Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-014) upon: Mr. Nicholas T. Diener 212 West Jefferson Street Arcola, Illinois 61910 Nick_diener@yahoo.com Mr. Daniel C. Jones City Attorney Smith, Pappas & Jones Ltd. 622 Jackson Avenue Charleston, Illinois 61920 jones@spjlaw.net by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 3, 2025. Toshi M. Jones Bureau Chief Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413"}
{"id":209,"orig_master_id":19411,"dup_master_id":19183,"dup_sha256":"4a36d9ffc65912dc30a7cabfbb7145d7af7afd40c5c786fc0da14c01695fc39b","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-12-31","case_number":"2025 PAC 89395","request_numbers":null,"title":"Disclosure of Village Clerk's Termination Letter","filename":"PUBLIC ACCESS OPINION 25-016 (Request for Review 2025 PAC 89395).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-016 (Request for Review 2025 PAC 89395).pdf","word_count":2345,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request made by Ms. Tania Vucsko for the termination letter of the Village Clerk, which was initially denied by the Village of Thomasboro.","plain_summary":"The requester sought an unredacted copy of a village clerk's termination letter, which the village withheld citing personnel-record and workplace-privacy statutes and FOIA's personal-privacy and disciplinary-adjudication exemptions. The Public Access Counselor held that no cited statute prohibited disclosure of the letter, that it concerned the performance of public duties rather than private affairs, and that the village had not shown any formal adjudication occurred. The village was directed to disclose an unredacted copy of the termination letter.","holding":"The Village of Thomasboro improperly withheld the termination letter responsive to Ms. Tania Vucsko's FOIA request.","legal_question":"Did the Village of Thomasboro properly withhold the termination letter under FOIA?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/7(1), 75 ILCS 140/7(1), 5 ILCS 140/1, 185 ILCS 140/7, 820 ILCS 40/2(a), 820 ILCS 40/7(4), 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":["7(1)(a)","7(1)(c)","7(1)(n)"],"public_body":"Village of Thomasboro","requesting_party":"Vucsko and Mr. Miller","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought the termination letter issued by the Mayor to the Village Clerk.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20opinion%2025-016.pdf","sha256":"1be5a0397b513c844c454ea105a493515f98422a16c0601570fa3716dcd42eed","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["termination letter","personnel records","FOIA request","Village Clerk"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL ST ATE OF ILLINOIS KWAMERAOUL A'lTORNEY GENERAL December 31, 2025 PUBLIC ACCESS OPINION 25-016 (Request for Review 2025 PAC 89395) FREEDOM OF INFORMATION ACT: Disclosure of Village Clerk's Termination Letter Ms. Tania Vucsko 300 South Jacobsen Drive Thomasboro, Illinois 61878 Mr. Marc R. Miller Miller and Hendren 2504 Galen Drive, Suite 101 Champaign, Illinois 61821 Dear Ms. Vucsko and Mr. Miller: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(±) (West 2024)). For the reasons discussed below, this office concludes that the Village of Thomasboro (Village) improperly withheld the termination letter responsive to Ms. Tania Vucsko's August 11, 2025, FOIA request. On that date, Ms. Vucsko submitted a FOIA request to the Village via e- mail seeking \"a complete and unredacted copy of the termination letter issued by the Mayor of the Village of Thomasboro to the Village Clerk, Tana Ward, dated August 7th, 2025.\"1 On August 18, 2025, the Village denied the request2 pursuant to section 7(l)(a) ofFOIA3 based on 1E-mail from Tania Vucsko to [Village of Thomasboro FOIA Officer and others] (August 11, 2025). 2Letter from Village of Thomasboro to Tania Vucsko (August 18, 2025), at [1-2]. 35 ILCS 140/7(1)(a) (West 2024). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62 70 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisi\\ttomeyGeneral.gov Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 2 section 7(1) of the Personnel Record Review Act (PRRA),4 the Right to Privacy in the Workplace Act,5 and the Workplace Transparency Act.6 The Village also asserted that the termination letter was exempt from disclosure under sections 7(l)(c) and 7(l)(n) ofFOIA.7 On August 19, 2025, Ms. Vucsko submitted a follow-up FOIA request to the Village via e-mail seeking a copy of the same termination letter as well as copies of any supplemental documents related to the termination or separation of the Village Clerk. 8 On August 26, 2025, the Village denied the request, relying on the same exemptions it asserted in response to Ms. Vucsko's August 11, 2025, FOIA request.9 On September 21, 2025, Ms. Vucsko submitted Requests for Review challenging the Village's responses to each FOIA request, including the applicability of the exemptions the Village asserted to deny the termination letter. 10 The Public Access Bureau opened a Request for Review concerning the denial of the termination letter in response to the August 11, 2025, FOIA request (2025 PAC 89395), and a separate Request for Review concerning the denial of any records responsive to the August 19, 2025, FOIA request (2025 PAC 89397). On September 30, 2025, the Public Access Bureau sent the Village's attorney a copy of each Request for Review and a consolidated inquiry letter that requested the Village provide unredacted copies of all withheld records for this office's confidential review, as well as a detailed written explanation of the factual and legal bases for the applicability of the asserted exemptions.11 On October 8, 2025, the Village e-mailed this office12 an unredacted copy of the 4820 ILCS 40/7(1) (West 2024). 5820 ILCS 55/1 et seq. (West 2024). 6820 ILCS 96/1-1 et seq. (West 2024). 75 ILCS 140/7(1)(c), (l)(n) (West 2024). 8E-mail from Tania Vucsko to [Village of Thomasboro FOIA Officer] (August 19, 2025). 9Letter from Village of Thomasboro to Tania Vucsko (August 26, 2025), at [ 1-2). 10E-mail from Tania Vucsko to Public Access Counselor, [Office of the Attorney General] (September 21, 2025). 11Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Marc R. Miller, Miller and Hendren (September 30, 2025). 12E-mail from Marc R. Miller, Miller & Hendren, to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 8, 2025). Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 3 termination letter. The next day, the Village e-mailed this office13 its written response in which it relied on only the PRRA and sections 7(1)(c) and 7(1)(n) of FOIA to withhold the termination letter.14 On October 10, 2025, this office forwarded a copy of the Village's response to Ms. Vucsko and notified her of her opportunity to reply.15 On October 12, 2025, Ms. Vucsko submitted a reply, maintaining her objections to the asserted exemptions. 16 On November 20, 2025, the Public Access Bureau extended the time within which to issue a binding opinion to January 8, 2026, pursuant to section 9.5(f) of FOIA.17 This binding opinion addresses only the denial of the termination letter sought by Ms. Vucsko in the FOIA request that underlies 2025 PAC 89395. ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Section 7.S(q) of FOIA and the PRRA To withhold the letter pursuant to the PRRA, the Village cited section 7(1)(a) of FOIA, which exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" The more specific exemption, however, is section 7 .5( q) of FOIA, 18 which exempts from disclosure \"[i]nformation prohibited from being disclosed by the Personnel Record Review Act.\" The 13E-mail from Marc R. Miller, Miller & Hendren, to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] and Gavin Gunter [Miller & Hendren) (October 9, 2025). 14Memorandum from Marc R. Miller[,] Attorney[,] and R. Gavin Gunter[,] Law Clerk[,] both of Miller & Hendren Law Office, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau (undated). 15Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tania Vucsko (October 10, 2025). 16Letter from Tania Vucsko to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, lllinois Attorney General's Office (October 12, 2025). 17Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tania Vucsko and Marc R. Miller, Miller and Hendren (November 20, 2025). 185 ILCS 140/7.5(q) (West 2024), as amended by Public Acts 104-010, effective June 16, 2025; 104-018, effective June 30, 2025; 104-417, effective August 15, 2025; I 04-428, effective August 18, 2025. Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 4 Illinois Appellate Court has observed that \"an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited.\" (Emphasis in original.) Better Government Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (2008). In its response to this office, the Village noted that section 7(1) of the PRRA provides that \" [a ]n employer ... shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party ... without written notice as provided in this [S]ection.\" 19 The Village asserted: [T]he purpose behind the Personnel Record Review Ac [...] arrowly.\" Kalven, 2014 IL App (1st) 121846,, 22. In its response to this office, the Village argued that \"the termination letter relates to the 'adjudication of employee grievances or disciplinary cases' because it includes the reasoning behind the ultimate termination and not merely the 'final outcome' of the termination.\"29 Ms. Vucsko's reply30 contended that the Village did not conduct an adjudication pertaining to the Village Clerk's dismissal. Indeed, the Village provided no facts supporting the assertion that it conducted an adjudication of the matter that resulted in the termination letter, as opposed to a more informal decision-making process. See Ill. Att'y Gen. Pub. Acc. Op. No. 13- 011, issued June 11, 2013, at 8 (city failed to prove records pertaining to an employee's disciplinary suspension were exempt under section 7(1)(n) where there was no indication that the matter culminated in an adjudicatory proceeding). Accordingly, the Village did not meet its burden of demonstrating by clear and convincing evidence that the termination letter is exempt pursuant to section 7(1)(n) ofFOIA. 29Memorandum from Marc Miller[,] Attorney[,] and R. Gavin Gunter[,] Law Clerk[,] both of Miller & Hendren Law Office, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (undated), at [2-3]. 30Letter from Tania Yucsko to [Katie] Goldsmith, Assistant Attorney General, Public Access Bureau, lllinois Attorney General's Office (October 12, 2025), at 2. Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 8 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 11, 2025, Ms. Tania Vucsko submitted a FOIA request to the Village of Thomasboro seeking a copy of the Village Clerk's termination letter of August 7, 2025. 2) On August 18, 2025, the Village denied the request pursuant to section 7(1)(a) of FOIA in connection with various State statutes, including the PRRA, as well as sections 7(1)(c) and 7(1)(n) of FOIA. 3) On September 21, 2025, Ms. Vucsko submitted the Request for Review at issue contesting the withholding of the termination letter. Ms. Vucsko's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On September 30, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Village together with a letter asking for an unredacted copy of the termination letter for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which the Village withheld the letter. 5) On October 8, 2025, and October 9, 2025, the Village furnished the requested materials to this office. The Village's written response asserted that the requested termination letter was exempt from disclosure pursuant to only the PRRA and sections 7(1)(c) and 7(1)(n) of FOIA. 6) On October 10, 2025, this office forwarded a copy of the Village's response letter to Ms. Vucsko. On October 12, 2025, Ms. Vucsko submitted a written reply. 7) On November 20, 2025, the Public Access Bureau extended the time within which to issue a binding opinion 30 business days, to January 8, 2026. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(a) of FOIA exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" More specifically, section 7.5(q) of FOIA exempts from disclosure \"[i]nformation prohibited from being disclosed by the Personnel Record Review Act.\" 9) Because no provision of the PRRA prohibited the Village from disclosing the termination letter, the Village failed to prove that section 7(1)(a) or section 7.5(q) ofFOIA applies. Ms. Tania Vucsko Mr. Marc R. Miller December 31, 2025 Page 9 10) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c), however, provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" 11) Because the termination letter concerns the performance of public duties by a public employee or official and not private affairs, section 7(1)(c) of FOIA does not apply. 12) Section 7(1)(n) ofFOIA exempts from disclosure \"[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.\" 13) Because the Village did not demonstrate that the termination letter related to an \"adjudication,\" the Village did not prove that the record is exempt from disclosure under section 7(1 )(n) of FOIA. Therefore, it is the opinion of the Attorney General that the Village of Thomasboro has violated FOIA by improperly withholding the termination letter responsive to Ms. Vucsko's FOIA request. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by disclosing an unredacted copy of the termination letter in a supplemental response to Ms. Vucsko's request. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Tania Vucsko as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL (L- -7}iv, By: R. Dou~l~s Ree/ Chief Deputy Attorney General CERTIFICATE OF SERVICE Leah Bartelt, Public Access Counselor, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-016) upon: Ms. Tania Vucsko 300 South Jacobsen Drive Thomasboro, Illinois 61878 tl vucsko@gmail.com Mr. Marc R. Miller Miller and Hendren 2504 Galen Drive, Suite 101 Champaign, Illinois 61821 MRM@mhlawoffice.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 31, 2025. Leah Bartelt Public Access Counselor Leah Bartelt Public Access Counselor Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6437","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Tania Vucsko requested a copy of the Village of Thomasboro's termination letter for the Village Clerk, but the Village refused to provide it. The Illinois Attorney General's office reviewed the case and ruled that the Village did not have a valid legal reason to keep the letter secret. The Village is now required to release the document to the requester.","card_headline":"A mayor's termination letter to a village clerk","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-89395/","full_text":"This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(±) (West 2024)). For the reasons discussed below, this office concludes that the Village of Thomasboro (Village) improperly withheld the termination letter responsive to Ms. Tania Vucsko's August 11, 2025, FOIA request. On that date, Ms. Vucsko submitted a FOIA request to the Village via e- mail seeking \"a complete and unredacted copy of the termination letter issued by the Mayor of the Village of Thomasboro to the Village Clerk, Tana Ward, dated August 7th, 2025.\"1 On August 18, 2025, the Village denied the request2 pursuant to section 7(l)(a) ofFOIA3 based on 1E-mail from Tania Vucsko to [Village of Thomasboro FOIA Officer and others] (August 11, 2025). 2 Letter from Village of Thomasboro to Tania Vucsko (August 18, 2025), at [1-2]. 35 ILCS 140/7(1)(a) (West 2024). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62 70 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisi\\ttomeyGeneral.gov Ms. Tania Vucsko Mr. Marc R. Miller \n\nsection 7(1) of the Personnel Record Review Act (PRRA),4 the Right to Privacy in the Workplace Act,5 and the Workplace Transparency Act.6 The Village also asserted that the termination letter was exempt from disclosure under sections 7(l)(c) and 7(l)(n) ofFOIA.7 On August 19, 2025, Ms. Vucsko submitted a follow-up FOIA request to the Village via e-mail seeking a copy of the same termination letter as well as copies of any supplemental documents related to the termination or separation of the Village Clerk. 8 On August 26, 2025, the Village denied the request, relying on the same exemptions it asserted in response to Ms. Vucsko's August 11, 2025, FOIA request.9 On September 21, 2025, Ms. Vucsko submitted Requests for Review challenging the Village's responses to each FOIA request, including the applicability of the exemptions the Village asserted to deny the termination letter. 10 The Public Access Bureau opened a Request for Review concerning the denial of the termination letter in response to the August 11, 2025, FOIA request (2025 PAC 89395), and a separate Request for Review concerning the denial of any records responsive to the August 19, 2025, FOIA request (2025 PAC 89397). On September 30, 2025, the Public Access Bureau sent the Village's attorney a copy of each Request for Review and a consolidated inquiry letter that requested the Village provide unredacted copies of all withheld records for this office's confidential review, as well as a detailed written explanation of the factual and legal bases for the applicability of the asserted exemptions.11 On October 8, 2025, the Village e-mailed this office12 an unredacted copy of the 4820 ILCS 40/7(1) (West 2024). 5820 ILCS 55/1 et seq. (West 2024). 6820 ILCS 96/1-1 et seq. (West 2024). 75 ILCS 140/7(1)(c), (l)(n) (West 2024). 8E-mail from Tania Vucsko to [Village of Thomasboro FOIA Officer] (August 19, 2025). 9 Letter from Village of Thomasboro to Tania Vucsko (August 26, 2025), at [ 1-2). 10E-mail from Tania Vucsko to Public Access Counselor, [Office of the Attorney General] (September 21, 2025). 11 Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Marc R. Miller, Miller and Hendren (September 30, 2025). 12E-mail from Marc R. Miller, Miller & Hendren, to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (October 8, 2025). Ms. Tania Vucsko Mr. Marc R. Miller \n\ntermination letter. The next day, the Village e-mailed this office13 its written response in which it relied on only the PRRA and sections 7(1)(c) and 7(1)(n) of FOIA to withhold the termination letter.14 On October 10, 2025, this office forwarded a copy of the Village's response to Ms. Vucsko and notified her of her opportunity to reply.15 On October 12, 2025, Ms. Vucsko submitted a reply, maintaining her objections to the asserted exemptions. 16 On November 20, 2025, the Public Access Bureau extended the time within which to issue a binding opinion to January 8, 2026, pursuant to section 9.5(f) of FOIA.17 This binding opinion addresses only the denial of the termination letter sought by Ms. Vucsko in the FOIA request that underlies 2025 PAC 89395. ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Section 7.S(q) of FOIA and the PRRA To withhold the letter pursuant to the PRRA, the Village cited section 7(1)(a) of FOIA, which exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" The more specific exemption, however, is section 7.5(q) of FOIA, 18 which exempts from disclosure \"[i]nformation prohibited from being disclosed by the Personnel Record Review Act.\" The 13E-mail from Marc R. Miller, Miller & Hendren, to [Katie] Goldsmith, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] and Gavin Gunter [Miller & Hendren) (October 9, 2025). 14 Memorandum from Marc R. Miller[,] Attorney[,] and R. Gavin Gunter[,] Law Clerk[,] both of Miller & Hendren Law Office, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau (undated). 15 Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tania Vucsko (October 10, 2025). 16 Letter from Tania Vucsko to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, lllinois Attorney General's Office (October 12, 2025). 17 Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Tania Vucsko and Marc R. Miller, Miller and Hendren (November 20, 2025). 185 ILCS 140/7.5(q) (West 2024), as amended by Public Acts 104-010, effective June 16, 2025; 104-018, effective June 30, 2025; 104-417, effective August 15, 2025; I 04-428, effective August 18, 2025. Ms. Tania Vucsko Mr. Marc R. Miller \n\nIllinois Appellate Court has observed that \"an exemption restricting the expansive nature of the FOIA's disclosure provisions must be explicitly stated--that is, such a proposed disclosure must be specifically prohibited.\" (Emphasis in original.) Better Government Ass'n v. Blagojevich, 386 Ill. App. 3d 808, 816 (2008). In its response to this office, the Village noted that section 7(1) of the PRRA provides that \" [a ]n employer... shall not divulge a disciplinary report, letter of reprimand, or other disciplinary action to a third party... without written notice as provided in this [S]ection.\" 19 The Village asserted: [T]he purpose behind the Personnel Record Review Ac [...] arrowly.\" Kalven, 2014 IL App (1st) 121846,, 22. In its response to this office, the Village argued that \"the termination letter relates to the 'adjudication of employee grievances or disciplinary cases' because it includes the reasoning behind the ultimate termination and not merely the 'final outcome' of the termination.\"29 Ms. Vucsko's reply30 contended that the Village did not conduct an adjudication pertaining to the Village Clerk's dismissal. Indeed, the Village provided no facts supporting the assertion that it conducted an adjudication of the matter that resulted in the termination letter, as opposed to a more informal decision-making process. See Ill. Att'y Gen. Pub. Acc. Op. No. 13- 011, issued June 11, 2013, at 8 (city failed to prove records pertaining to an employee's disciplinary suspension were exempt under section 7(1)(n) where there was no indication that the matter culminated in an adjudicatory proceeding). Accordingly, the Village did not meet its burden of demonstrating by clear and convincing evidence that the termination letter is exempt pursuant to section 7(1)(n) ofFOIA. 29 Memorandum from Marc Miller[,] Attorney[,] and R. Gavin Gunter[,] Law Clerk[,] both of Miller & Hendren Law Office, to Katie Goldsmith, Assistant Attorney General, Public Access Bureau, [Office of the Attorney General] (undated), at [2-3]. 30 Letter from Tania Yucsko to [Katie] Goldsmith, Assistant Attorney General, Public Access Bureau, lllinois Attorney General's Office (October 12, 2025), at 2. Ms. Tania Vucsko Mr. Marc R. Miller \n\nFINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On August 11, 2025, Ms. Tania Vucsko submitted a FOIA request to the Village of Thomasboro seeking a copy of the Village Clerk's termination letter of August 7, 2025. 2) On August 18, 2025, the Village denied the request pursuant to section 7(1)(a) of FOIA in connection with various State statutes, including the PRRA, as well as sections 7(1)(c) and 7(1)(n) of FOIA. 3) On September 21, 2025, Ms. Vucsko submitted the Request for Review at issue contesting the withholding of the termination letter. Ms. Vucsko's Request for Review was timely filed and otherwise complies with the requirements of section 9.5(a) ofFOIA (5 ILCS 140/9.5(a) (West 2024)). 4) On September 30, 2025, the Public Access Bureau forwarded a copy of the Request for Review to the Village together with a letter asking for an unredacted copy of the termination letter for this office's confidential review. The letter also requested a detailed explanation of the factual and legal bases for the applicability of the specific exemptions under which the Village withheld the letter. 5) On October 8, 2025, and October 9, 2025, the Village furnished the requested materials to this office. The Village's written response asserted that the requested termination letter was exempt from disclosure pursuant to only the PRRA and sections 7(1)(c) and 7(1)(n) of FOIA. 6) On October 10, 2025, this office forwarded a copy of the Village's response letter to Ms. Vucsko. On October 12, 2025, Ms. Vucsko submitted a written reply. 7) On November 20, 2025, the Public Access Bureau extended the time within which to issue a binding opinion 30 business days, to January 8, 2026. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 7(1)(a) of FOIA exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" More specifically, section 7.5(q) of FOIA exempts from disclosure \"[i]nformation prohibited from being disclosed by the Personnel Record Review Act.\" 9) Because no provision of the PRRA prohibited the Village from disclosing the termination letter, the Village failed to prove that section 7(1)(a) or section 7.5(q) ofFOIA applies. Ms. Tania Vucsko Mr. Marc R. Miller \n\n10) Section 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c), however, provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" 11) Because the termination letter concerns the performance of public duties by a public employee or official and not private affairs, section 7(1)(c) of FOIA does not apply. 12) Section 7(1)(n) ofFOIA exempts from disclosure \"[r]ecords relating to a public body's adjudication of employee grievances or disciplinary cases; however, this exemption shall not extend to the final outcome of cases in which discipline is imposed.\" 13) Because the Village did not demonstrate that the termination letter related to an \"adjudication,\" the Village did not prove that the record is exempt from disclosure under section 7(1)(n) of FOIA. Therefore, it is the opinion of the Attorney General that the Village of Thomasboro has violated FOIA by improperly withholding the termination letter responsive to Ms. Vucsko's FOIA request. Accordingly, the Village is hereby directed to take immediate and appropriate action to comply with this opinion by disclosing an unredacted copy of the termination letter in a supplemental response to Ms. Vucsko's request. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Tania Vucsko as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL (L- -7}iv, By: R. Dou~l~s Ree/ Chief Deputy Attorney General CERTIFICATE OF SERVICE Leah Bartelt, Public Access Counselor, Public Access Counselor, hereby certifies that she has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-016) upon: Ms. Tania Vucsko 300 South Jacobsen Drive Thomasboro, Illinois 61878 tl vucsko@gmail.com Mr. Marc R. Miller Miller and Hendren 2504 Galen Drive, Suite 101 Champaign, Illinois 61821 MRM@mhlawoffice.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 31, 2025. Leah Bartelt Public Access Counselor Leah Bartelt Public Access Counselor Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6437"}
{"id":210,"orig_master_id":19413,"dup_master_id":19184,"dup_sha256":"e4f8a5ebd02211fea753f5b9358b3f76dae5a1b339747472342fde287296ad61","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-01-21","case_number":"2025 PAC 90575","request_numbers":null,"title":"Rules for Public Comment; Opportunity to Address Public Officials","filename":"PUBLIC ACCESS OPINION 26-001 (Request for Review 2025 PAC 90575).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-001 (Request for Review 2025 PAC 90575).pdf","word_count":2360,"summary":"This document is a binding public access opinion regarding a complaint filed by Ms. Francine Anderson against the Village of Sauk Village Board of Trustees for violating the Open Meetings Act by improperly limiting her opportunity to address public officials.","plain_summary":"The requester, a resident, alleged that a village mayor improperly interrupted her public comment, cut off the microphone, and threatened to have her removed after she stated the names of trustees during a board meeting. The Public Access Counselor held that because the board had no established, recorded rule against naming trustees during public comment, the mayor's interference violated the Open Meetings Act's guarantee of an opportunity to address public officials. The board was directed to ensure future meetings comply with OMA by restricting public comment only under properly established and recorded rules.","holding":"The Village of Sauk Village Board of Trustees violated the Open Meetings Act.","legal_question":"Did the Village of Sauk Village Board of Trustees violate the Open Meetings Act by interfering with Ms. Francine Anderson's public comment?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/2, 735 ILCS 5/3, 5 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Sauk Village","requesting_party":"Anderson","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"public comment","subject_description":"The Board of Trustees improperly interrupted and limited a citizen's public comment during a Committee of the Whole meeting.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-001.pdf","sha256":"2009d78e52e7de9ec2d2cba61b4293d3b33a63a382c08d5f45bbb3a121cf38c0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["public comment","Open Meetings Act","citizen rights","board meeting"],"truncated_suspect":0,"site_category":"Meeting Conduct & Participation","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL January 21, 2026 PUBLIC ACCESS OPINION 26-001 (Request for Review 2025 PAC 90575) OPEN MEETINGS ACT: Rules for Public Comment; Opportunity to Address Public Officials Ms. Francine Anderson 1606 216th Street Sauk Village, Illinois 60411 The Honorable Marva Campbell-Pruitt Mayor Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Dear Ms. Anderson and Ms. Campbell-Pruitt: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Sauk Village (Village) Board of Trustees (Board) violated OMA by improperly limiting and interfering with Ms. Francine Anderson's opportunity to address public officials during the Board's November 4, 2025, Committee of the Whole meeting. BACKGROUND On November 10, 2025, Ms. Anderson submitted a Request for Review alleging that the Board violated section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2024)) during its 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l l l in oisA ttomeyGenera I. gov ,,r,,J __ . _ , , 7 . . : . f ., ,: , . ••~ ~ Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 2 November 4, 2025, meeting by interrupting her public comment.' Ms. Anderson alleged that the Mayor interrupted her to state that she could not say the names of Village trustees, and then turned off the audio system before removing the microphone from the lectern. 2 Ms. Anderson further alleged that the Mayor asked the Village's Police Chief to remove her from the meeting, and stated that she was unable to complete her public comment without interference from the Mayor even though she was permitted to remain in the meeting room.3 Ms. Anderson's submission included an internet link to a video of her public comment. 4 On November 19, 2025, the Public Access Bureau e-mailed5 a copy of the Request for Review to the Board together with a letter asking the Board to provide a written response to Ms. Anderson's allegation, a copy of the Board's rules regarding public comment, and the agenda, minutes, and any recordings of the open session portion of the November 4, 2025, meeting. 6 On December 1, 2025, counsel for the Board e-mailed this office a written response, a copy of the meeting agenda, and a copy of the Board's rules on public comment.7 The response stated that the Board did not possess any \"official\" audio or video recordings of the meeting, and that the meeting minutes were still being drafted.8 On December 1, 2025, the 1E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025). 2E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025), at I. 3E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025), at I. 4Village of Sauk Village Board of Trustees, November 4, 2025, Committee of the Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXtlM. 5E-mail from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Marva] Campbell-Pruitt, [Mayor, Village of Sauk Village] (November 19, 2025). 6Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to the Honorable Marva Campbell-Pruitt, Mayor, Village of Sauk Village (November 19, 2025), at 1-2. 7E-mail from Arlene F. Cabana, Senior Counsel, Odelson, Murphey, Frazier & McGrath, Ltd., to Michael [J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (December I, 2025). 8Letter from Arlene F. Cabana, Senior Counsel, Odelson, Murphey, Frazier & McGrath, Ltd., to Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (December I, 2025), at I. Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 3 Public Access Bureau forwarded a copy of the Board's written response to Ms. Anderson and notified her of her opportunity to reply.9 She submitted a reply on December 8, 2025. 10 On January 7, 2026, this office extended the time for issuing a binding opinion by 21 business days, to February 10, 2026, pursuant to section 3.5(e) ofOMA.11 ANALYSIS Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" This provision \"generally precludes a public body from imposing restrictions on public comment that are not set out in its established and recorded rules.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued September 13, 2023, at 3; see also Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7 (public body \"violated section 2.06(g) of OMA by placing a condition on the making of a public comment that is not part of its established and recorded rules.\"); Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January 9, 2019, at 7 (public body \"violated section 2.06(g) of OMA by imposing an unestablished and unrecorded rule limiting public comment to 15 minutes[.]\"). This office has reviewed the video recording to which Ms. Anderson provided an internet link. The recording shows that at the beginning of her public comment, Ms. Anderson stated that she was glad that a specific trustee, whom she identified by name, had asked a particular question; this did not appear to cause a disruption in the audience, but the Mayor interrupted Ms. Anderson to say, \"please do not call names.\"12 A short time later, Ms. Anderson stated the names of three trustees in order to offer her congratulations to those trustees for organizing a holiday event.13 Immediately before Ms. Anderson completed stating the name of the first trustee, the Mayor again interjected, \"please do not call names.\" 14 Ms. Anderson 9Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to Francine Anderson (December 1, 2025). 10Letter from Francine Anderson, Sauk Village Resident, to Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (December 8, 2025). 11 Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Francine Anderson and Arlene F. Cabana, Odelson, Murphey, Frazier, & McGrath, Ltd. (January 7, 2026). 12Village of Sauk Village Board of Trustees, November 4, 2025, Committee oft he Whole Meeting, YouTube, (November 4, 2025), https://www .youtube.com/watch?v=zs I ObygXflM, at 0: 12-0:22. 13Village of Sauk Village Board of Trustees, November 4, 2025, Committee oft he Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs 1O bygXflM, at I: 14-1 :21. 14Village of Sauk Village Board of Trustees, November 4, 2025, Committee of the Whole Meeting, You Tube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXflM, at 1: 17-1: 18. Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 4 proceeded to name the trustees and continued her public comment, objecting to the Mayor trying to restrict her from stating the names of trustees.15 The Mayor unplugged the public comment audio system so that no sound came through the speakers as Ms. Anderson continued to speak into the microphone, and then approached the lectern and removed the microphone. 16 As Ms. Anderson objected more vehemently, the Mayor stood cl [...] lic officials from criticism, courts have deemed restrictions on such criticism during open meetings to be unconstitutional. See e.g., Leventhal v. Vista Unified School District, 973 F. Supp 951, 954, 960-61 (S.D. Cal. 1997) (concluding that a school district violated the first amendment to the United States Constitution by enforcing a content-based public comment rule that prohibited Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 8 speakers from making complaints against individual public employees unless the employee consented). 35 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On November 10, 2025, Ms. Francine Anderson submitted a Request for Review alleging that during its November 4, 2025, Committee of the Whole meeting, the Village of Sauk Village Board of Trustees improperly restricted her right to public comment pursuant to section 2.06(g) of OMA. Ms. Anderson's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On November 19, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the Board's public comment rules, the agenda, minutes, and any recordings of the Board's November 4, 2025, meeting, and a written response to the allegations in Ms. Anderson's Request for Review. 3) On December I, 2025, the Board provided this office with a written response to the allegations, along with a copy of the meeting agenda, the Board's public comment rules, and select portions of Robert's Rules of Order. 4) On that same date, the Public Access Bureau forwarded a copy of the Board's written answer to Ms. Anderson and notified her of her opportunity to reply. She replied on December 8, 2025. 5) On January 7, 2026, this office extended the time for issuing a binding opinion by 21 business days, to February 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" 35Broad limitations on speech that, on their face, do not restrict speakers from expressing a particular viewpoint may still constitute impermissible content-based restrictions if they are applied in a manner that stifles criticism of public officials. See Moore v. Asbury Park Board of Education, 2005 U.S. Dist. Lexis 18372, at *33-35 (N.J. Dist. 2005) (holding that a rule prohibiting comments that are \"personally directed\" was an unconstitutional restraint on speech); see also Turner Broadcasting System Inc., v. FCC, 512 U.S. 622, 645 (1994) (\"even a regulation neutral on its face may be content-based if its manifest purpose is to regulate speech because of the message it conveys.\"). Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 9 7) During the Board's November 4, 2025, meeting, the Mayor interrupted Ms. Anderson's public comment to tell her not to state the names of trustees. 8) When Ms. Anderson proceeded to offer her congratulations to individual trustees by name, the Mayor turned off the public comment audio system, removed the microphone from the lectern, stated that Ms. Anderson's time was up, and called the Police Chief up to the lectern. 9) The Board has not established and recorded a rule that prohibits speakers from addressing individual trustees by name. Even if it had, public comment rules must tend to accommodate, rather than unreasonably restrict, the right to address public officials. A rule that prohibits speakers from stating the names of trustees to which they direct comments would be incompatible with that standard and the language of section 2.06(g) of OMA that guarantees members of the public \"an opportunity to address public officials[.]\" 10) Ms. Anderson did not disrupt the meeting by stating the names of trustees. Therefore, the interruption and interference with Ms. Anderson's public comment was not a valid exercise of the Board's inherent authority to run an orderly meeting. 11) Accordingly, the Attorney General concludes that the Board violated section 2.06(g) of OMA by impermissibly restricting Ms. Anderson from addressing public officials during the Board's November 4, 2025, Committee of the Whole meeting. In accordance with these findings of fact and conclusions of law, the Board is directed to take immediate and appropriate action to comply with this opinion by taking measures to ensure all future meetings comply with the requirements of OMA. In particular, the Board generally may only restrict public comment in accordance with established and recorded rules that are designed to accommodate the public's statutory right to address the Board within an orderly and efficient meeting. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County Ms. Francine Anderson The Honorable Marva Campbell-Pruitt January 21, 2026 Page 10 within 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Francine Anderson as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: /l-~ ~ R. Douglas Rees Chief Deputy Attorney General cc: Ms. Arlene F. Cabana Odelson, Murphy, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois 60805 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-001) upon: Ms. Francine Anderson 1606 216th Street Sauk Village, Illinois 60411 Frana216@yahoo.com The Honorable Marva Campbell-Pruitt Mayor Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Mcamp bell-prui tt@saukvillage.org Ms. Arlene F. Cabana Odelson, Murphy, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois 60805 acabana@omfmlaw.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on January 21, 2026. ~ : § (_ _ _ Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Ms. Francine Anderson complained that the Village of Sauk Village Board of Trustees unfairly stopped her from speaking during a public meeting. The Illinois Attorney General's office reviewed the case and ruled that the Board violated the Open Meetings Act by interfering with her right to address public officials. This means the Board must ensure that public comment rules are applied fairly and do not improperly silence citizens.","card_headline":"A board's interruption of a citizen's public comment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-90575/","full_text":"This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Sauk Village (Village) Board of Trustees (Board) violated OMA by improperly limiting and interfering with Ms. Francine Anderson's opportunity to address public officials during the Board's November 4, 2025, Committee of the Whole meeting. BACKGROUND On November 10, 2025, Ms. Anderson submitted a Request for Review alleging that the Board violated section 2.06(g) of OMA (5 ILCS 120/2.06(g) (West 2024)) during its 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. l l l in oisA ttomeyGenera I. gov,,r,,J __. _,, 7..:. f.,,:,. ••~ ~ Ms. Francine Anderson The Honorable Marva Campbell-Pruitt \n\nNovember 4, 2025, meeting by interrupting her public comment.' Ms. Anderson alleged that the Mayor interrupted her to state that she could not say the names of Village trustees, and then turned off the audio system before removing the microphone from the lectern. 2 Ms. Anderson further alleged that the Mayor asked the Village's Police Chief to remove her from the meeting, and stated that she was unable to complete her public comment without interference from the Mayor even though she was permitted to remain in the meeting room.3 Ms. Anderson's submission included an internet link to a video of her public comment. 4 On November 19, 2025, the Public Access Bureau e-mailed5 a copy of the Request for Review to the Board together with a letter asking the Board to provide a written response to Ms. Anderson's allegation, a copy of the Board's rules regarding public comment, and the agenda, minutes, and any recordings of the open session portion of the November 4, 2025, meeting. 6 On December 1, 2025, counsel for the Board e-mailed this office a written response, a copy of the meeting agenda, and a copy of the Board's rules on public comment.7 The response stated that the Board did not possess any \"official\" audio or video recordings of the meeting, and that the meeting minutes were still being drafted.8 On December 1, 2025, the 1E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025). 2E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025), at I. 3E-mail from Francine Anderson to Public Access Counselor, Office of the Attorney General (November I 0, 2025), at I. 4 Village of Sauk Village Board of Trustees, November 4, 2025, Committee of the Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXtlM. 5E-mail from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Marva] Campbell-Pruitt, [Mayor, Village of Sauk Village] (November 19, 2025). 6 Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to the Honorable Marva Campbell-Pruitt, Mayor, Village of Sauk Village (November 19, 2025), at 1-2. 7E-mail from Arlene F. Cabana, Senior Counsel, Odelson, Murphey, Frazier & McGrath, Ltd., to Michael [J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (December I, 2025). 8 Letter from Arlene F. Cabana, Senior Counsel, Odelson, Murphey, Frazier & McGrath, Ltd., to Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (December I, 2025), at I. Ms. Francine Anderson The Honorable Marva Campbell-Pruitt \n\nPublic Access Bureau forwarded a copy of the Board's written response to Ms. Anderson and notified her of her opportunity to reply.9 She submitted a reply on December 8, 2025. 10 On January 7, 2026, this office extended the time for issuing a binding opinion by 21 business days, to February 10, 2026, pursuant to section 3.5(e) ofOMA.11 ANALYSIS Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" This provision \"generally precludes a public body from imposing restrictions on public comment that are not set out in its established and recorded rules.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-013, issued September 13, 2023, at 3; see also Ill. Att'y Gen. Pub. Acc. Op. No. 14-009, issued September 4, 2014, at 7 (public body \"violated section 2.06(g) of OMA by placing a condition on the making of a public comment that is not part of its established and recorded rules.\"); Ill. Att'y Gen. Pub. Acc. Op. No. 19-002, issued January 9, 2019, at 7 (public body \"violated section 2.06(g) of OMA by imposing an unestablished and unrecorded rule limiting public comment to 15 minutes[.]\"). This office has reviewed the video recording to which Ms. Anderson provided an internet link. The recording shows that at the beginning of her public comment, Ms. Anderson stated that she was glad that a specific trustee, whom she identified by name, had asked a particular question; this did not appear to cause a disruption in the audience, but the Mayor interrupted Ms. Anderson to say, \"please do not call names.\"12 A short time later, Ms. Anderson stated the names of three trustees in order to offer her congratulations to those trustees for organizing a holiday event.13 Immediately before Ms. Anderson completed stating the name of the first trustee, the Mayor again interjected, \"please do not call names.\" 14 Ms. Anderson 9 Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to Francine Anderson (December 1, 2025). 10 Letter from Francine Anderson, Sauk Village Resident, to Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (December 8, 2025). 11 Letter from Michael J. Knight, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Francine Anderson and Arlene F. Cabana, Odelson, Murphey, Frazier, & McGrath, Ltd. (January 7, 2026). 12 Village of Sauk Village Board of Trustees, November 4, 2025, Committee oft he Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXflM, at 0: 12-0:22. 13 Village of Sauk Village Board of Trustees, November 4, 2025, Committee oft he Whole Meeting, YouTube, (November 4, 2025), https://www.youtube.com/watch?v=zs 1O bygXflM, at I: 14-1:21. 14 Village of Sauk Village Board of Trustees, November 4, 2025, Committee of the Whole Meeting, You Tube, (November 4, 2025), https://www.youtube.com/watch?v=zs I ObygXflM, at 1: 17-1: 18. Ms. Francine Anderson The Honorable Marva Campbell-Pruitt \n\nproceeded to name the trustees and continued her public comment, objecting to the Mayor trying to restrict her from stating the names of trustees.15 The Mayor unplugged the public comment audio system so that no sound came through the speakers as Ms. Anderson continued to speak into the microphone, and then approached the lectern and removed the microphone. 16 As Ms. Anderson objected more vehemently, the Mayor stood cl [...] lic officials from criticism, courts have deemed restrictions on such criticism during open meetings to be unconstitutional. See e.g., Leventhal v. Vista Unified School District, 973 F. Supp 951, 954, 960-61 (S.D. Cal. 1997) (concluding that a school district violated the first amendment to the United States Constitution by enforcing a content-based public comment rule that prohibited Ms. Francine Anderson The Honorable Marva Campbell-Pruitt \n\nspeakers from making complaints against individual public employees unless the employee consented). 35 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On November 10, 2025, Ms. Francine Anderson submitted a Request for Review alleging that during its November 4, 2025, Committee of the Whole meeting, the Village of Sauk Village Board of Trustees improperly restricted her right to public comment pursuant to section 2.06(g) of OMA. Ms. Anderson's Request for Review was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA. 2) On November 19, 2025, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the Board's public comment rules, the agenda, minutes, and any recordings of the Board's November 4, 2025, meeting, and a written response to the allegations in Ms. Anderson's Request for Review. 3) On December I, 2025, the Board provided this office with a written response to the allegations, along with a copy of the meeting agenda, the Board's public comment rules, and select portions of Robert's Rules of Order. 4) On that same date, the Public Access Bureau forwarded a copy of the Board's written answer to Ms. Anderson and notified her of her opportunity to reply. She replied on December 8, 2025. 5) On January 7, 2026, this office extended the time for issuing a binding opinion by 21 business days, to February 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.06(g) of OMA provides that \"[a]ny person shall be permitted an opportunity to address public officials under the rules established and recorded by the public body.\" 35 Broad limitations on speech that, on their face, do not restrict speakers from expressing a particular viewpoint may still constitute impermissible content-based restrictions if they are applied in a manner that stifles criticism of public officials. See Moore v. Asbury Park Board of Education, 2005 U.S. Dist. Lexis 18372, at *33-35 (N.J. Dist. 2005) (holding that a rule prohibiting comments that are \"personally directed\" was an unconstitutional restraint on speech); see also Turner Broadcasting System Inc., v. FCC, 512 U.S. 622, 645 (1994) (\"even a regulation neutral on its face may be content-based if its manifest purpose is to regulate speech because of the message it conveys.\"). Ms. Francine Anderson The Honorable Marva Campbell-Pruitt \n\n7) During the Board's November 4, 2025, meeting, the Mayor interrupted Ms. Anderson's public comment to tell her not to state the names of trustees. 8) When Ms. Anderson proceeded to offer her congratulations to individual trustees by name, the Mayor turned off the public comment audio system, removed the microphone from the lectern, stated that Ms. Anderson's time was up, and called the Police Chief up to the lectern. 9) The Board has not established and recorded a rule that prohibits speakers from addressing individual trustees by name. Even if it had, public comment rules must tend to accommodate, rather than unreasonably restrict, the right to address public officials. A rule that prohibits speakers from stating the names of trustees to which they direct comments would be incompatible with that standard and the language of section 2.06(g) of OMA that guarantees members of the public \"an opportunity to address public officials[.]\" 10) Ms. Anderson did not disrupt the meeting by stating the names of trustees. Therefore, the interruption and interference with Ms. Anderson's public comment was not a valid exercise of the Board's inherent authority to run an orderly meeting. 11) Accordingly, the Attorney General concludes that the Board violated section 2.06(g) of OMA by impermissibly restricting Ms. Anderson from addressing public officials during the Board's November 4, 2025, Committee of the Whole meeting. In accordance with these findings of fact and conclusions of law, the Board is directed to take immediate and appropriate action to comply with this opinion by taking measures to ensure all future meetings comply with the requirements of OMA. In particular, the Board generally may only restrict public comment in accordance with established and recorded rules that are designed to accommodate the public's statutory right to address the Board within an orderly and efficient meeting. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County Ms. Francine Anderson The Honorable Marva Campbell-Pruitt \n\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Ms. Francine Anderson as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: /l-~ ~ R. Douglas Rees Chief Deputy Attorney General cc: Ms. Arlene F. Cabana Odelson, Murphy, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois 60805 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-001) upon: Ms. Francine Anderson 1606 216th Street Sauk Village, Illinois 60411 Frana216@yahoo.com The Honorable Marva Campbell-Pruitt Mayor Village of Sauk Village 21801 Torrence Avenue Sauk Village, Illinois 60411 Mcamp bell-prui tt@saukvillage.org Ms. Arlene F. Cabana Odelson, Murphy, Frazier & McGrath, Ltd. 3318 West 95th Street Evergreen Park, Illinois 60805 acabana@omfmlaw.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on January 21, 2026. ~: § (_ _ _ Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756"}
{"id":211,"orig_master_id":19412,"dup_master_id":19185,"dup_sha256":"9f6c7abe6a3eeff492b1e2d4bf54876e5123383befb52e1804ce201671816ad1","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2025,"date_issued":"2025-12-23","case_number":"2025 PAC 89024","request_numbers":null,"title":"Basis for Withholding Police Officer Witness Questionnaires","filename":"PUBLIC ACCESS OPINION 25-015 (Request for Review 2025 PAC 89024).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 25-015 (Request for Review 2025 PAC 89024).pdf","word_count":2247,"summary":"This document is a binding public access opinion issued by the Illinois Attorney General regarding a FOIA request made by Max Blaisdell for police officer witness questionnaires. It concludes that the Cook County State's Attorney's Office improperly redacted the requested documents.","plain_summary":"The requester, a journalist, sought police officer witness questionnaires used to identify potential Brady/Giglio disclosure obligations, which a county state's attorney's office redacted to remove the officers' names, arrest-history answers, and additional-information sections. The Public Access Counselor held that the redacted information bore directly on the officers' public duties, was purely factual rather than deliberative, and did not reflect legal advice or attorney work product. The office was directed to provide unredacted copies of the questionnaires.","holding":"The Cook County State's Attorney's Office improperly redacted the questionnaires.","legal_question":"Whether the Cook County State's Attorney's Office properly redacted documents in response to a FOIA request.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 35 ILCS 140/2, 5 ILCS 140/7(1), 20 ILCS 2605/55, 20 ILCS 2605/2605, 125 ILCS 140/7(1), 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"Cook County State's Attorney's Office","requesting_party":"Blaisdell and Ms. Callaway","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records identifying law enforcement officers who were flagged for potential disclosure requirements under Brady/Giglio protocols.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2025-Binding-PAC-Opinions/Binding%20Opinion%2025-015.pdf","sha256":"4dfa8e2305ab2d980bb1fa4f6babb47f6c359f95f94031f9d18f5a90c5c88ce4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","Brady disclosure","FOIA","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL ATTORNEY GENERAL December 23, 2025 PUBLIC ACCESS OPINION 25-015 (Request for Review 2025 PAC 89024) FREEDOM OF INFORMATION ACT: Basis for Withholding Police Officer Witness Questionnaires Mr. Max Blaisdell Invisible Institute 5534 South Dorchester A venue, Unit 1 Chicago, Illinois 60637 Ms. Charita Callaway FOIA Officer Cook County State's Attorney's Office 50 West Washington Street Chicago, Illinois 60602 Dear Mr. Blaisdell and Ms. Callaway: This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that Cook County State's Attorney's Office (State's Attorney's Office) improperly redacted questionnaires responsive to Mr. Max Blaisdell's August 11, 2025, FOIA request. On that date, Mr. Blaisdell, on behalf of the Invisible Institute, submitted a FOIA request to the State's Attorney's Office via its online FOIA portal seeking copies of \"records sufficient to show: -all law enforcement officers or other law enforcement experts who have been identified as potentially requiring disclosure via the Brady/Giglio Form (meaning a yes answer was written in response on one of the included questions) from July 8, 2025 through the date this request is processed.\" 1 On August 14, 2025, the State's Attorney's Office responded to 1FOIA portal message from Max Blaisdell to Cook County State's Attorney's Office (August 11, I I 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 2 Mr. Blaisdell by providing him with copies of four police officer witness questionnaires but redacting the following information from each: (i) the police officer's name (in the \"Witness Name\" field); (ii) the police officer's answer to the question of whether they had ever been arrested, charged with, or convicted of a criminal offense; and (iii) the section for \"Additional Information\" (except for the one questionnaire in which this section is blank).2 The State's Attorney's Office cited sections 2.15(b) and 7(1)(c) ofFOIA as its bases for the redactions,3 and also claimed that the requested records are not public records or otherwise available, providing an outdated citation to a provision of the Department of State Police Law.4 On September 4, 2025, Mr. Blaisdell submitted the above-referenced Request for Review contesting the State's Attorney's Office's redactions to the four police officer witness questionnaires. 5 He asserted: The records at issue are Brady/Giglio disclosure questionnaires completed by law enforcement officers and experts for use in criminal proceedings. These forms are not private \"rap sheets\" or general \"criminal history reports,\" but rather sworn attestations by public officials about professional misconduct, credibility, and disciplinary history. Such information is created and maintained for the purpose of informing courts, defense counsel, and prosecutors, and thus falls squarely within the scope of public business.[ 6l Mr. Blaisdell additionally asserted: \"These records concern the professional honesty and integrity of law enforcement officers who testify in court- a matter of profound public interest and accountability.\"7 2Letter from Charita Callaway, FOIA Officer, Office of the State's Attorney, Cook County, Illinois, to Max Blaisdell, Invisible Institute/Hyde Park Herald/South Side Weekly (August 14, 2025). 35 ILCS 140/2.15(b) (West 2024); 5 ILCS 140/7(1)(c) (West 2024). 4 See 20 ILCS 2605/55a(5)(c) (2000) (providing that the Department of State Police has a duty to \"procure and file criminal history records as is necessary and helpful to plan programs of crime prevention, law enforcement and criminal justice\"). Public Act 91-239, effective January I, 2000, renumbered section 55a(5) as section 2605-300 of the Department of State Police Law (20 ILCS 2605/2605-300). Public Act 102-538, effective August 20, 2021, then repealed section 2605-300 and added the subject language to section 2605-200(a)(9) of the Illinois State Police Law (20 ILCS 2605/2605-200(a)(9) (West 2024)), where it presently is located. 5E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). 6E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). 7E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 3 On September 17, 2025, the Public Access Bureau e-mailed a copy of the Request for Review to the State's Attorney's Office, 8 accompanied by a letter requesting unredacted copies of the questionnaires for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the section 7(1)(c) exemption.9 On September 22, 2025, the State's Attorney's Office furnished unredacted copies of the questionnaires and its written answer to this office's letter.10 Also on that date, the State's Attorney's Office issued a revised response to Mr. Blaisdell in which it expanded on the reasons for its partial denial. 11 In particular, the State's Attorney's Office asserted the redactions were also proper pursuant to sections 7(1)(f) and 7(1)(m) of FOIA.12 On September 23, 2025, this office forwarded a copy of the State's Attorney Office's answer to Mr. Blaisdell and notified him of his opportunity to reply in writing.13 On September 29, 2025, Mr. Blaisdell replied by maintaining his objections to the redactions.14 On November 7, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to December 24, 2025, pursuant to section 9.5(f) ofFOIA. 15 On December 5, 2025, an Assistant Attorney General (AAG) in the Public Access contacted the State's Attorney's Office to clarify its citations of section 2.15(b) ofFOIA and section 55a(5)( c) of the Department of State Police Law.16 In a December 8, 2025, telephone 8E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Charita] Calloway (September 17, 2025). 9Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Charita Callaway, FOIA Officer, Cook County State's Attorney's Office (September 17, 2025), at 2. 10Letter from Charita Callaway, FOIA Officer, Office of the State's Attorney, Cook County, Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (September 22, 2025). 11Letter from Charita Callaway, FOfA Officer, Office of the State's Attorney, Cook County, Illinois, to Max Blaisdell, lnvisible Institute/Hyde Park Herald/South Side Weekly (September 22, 2025). 125 ILCS 140/7(1)(t), (l)(m) (West 2024). 13Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Max Blaisdell, Journalist, Invisible Institute (September 23, 2025). 14E-mail from Max Blaisdell to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (September 29, 2025). 15Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Max Blaisdell, Journalist, Invisible Institute, and Charita Callaway, FOIA Officer, Cook County State's Attorney's Office (November 7, 2025). 16E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Charita] Callaway (December 5, 2025). Mr. M [...] ral, Public Access Bureau (December 9, 2025). Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 9 2) On August 14, 2025, the State's Attorney's Office provided Mr. Blaisdell with copies of four police officer witness questionnaires with redactions pursuant to sections 2.15(b) and 7(1 )( c) of FOIA. The State's Attorney's Office also claimed that the requested records are not public records or otherwise available, citing a former provision of the Department of State Police Law (20 ILCS 2605/55a(5)(c)). 3) On September 8, 2025, Mr. Blaisdell submitted the above-referenced Request for Review contesting the State's Attorney's Office's redaction of the four questionnaires. 4) On September 17, 2025, the Public Access Bureau sent a copy of the Request for Review to the State's Attorney's Office and asked it to provide unredacted copies of the contested questionnaires for this office's confidential review. This office also asked the State's Attorney's Office to provide a detailed explanation of the factual and legal bases for redacting those records. 5) On September 22, 2025, the State's Attorney's Office furnished the requested materials to this office. 6) On September 23, 2025, the Public Access Bureau forwarded a copy of the State's Attorney's Office's written answer to Mr. Blaisdell and notified him of his right to reply. 7) On September 29, 2025, Mr. Blaisdell replied. 8) On November 7, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) On December 11, 2025, the State's Attorney's Office issued an amended answer to Mr. Blaisdell and to this office, asserting that the redacted information is exempt only pursuant to sections 7(1)(c), 7(1)(f), and 7(l)(m) of FOIA. 10) The records at issue in this Request for Review consist of four police officer witness questionnaires with the following information redacted: (i) the police officer's name; (ii) the police officer's answer to the question pertaining to whether they had ever been arrested, charged with, or convicted of a criminal offense; and (iii) a section for \"Additional Information.\" 11) Section 7(1)(c) exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c) expressly provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 10 12) Disclosure of the redacted information would not constitute a clearly unwarranted invasion of personal privacy because the information directly bears on the police officers' public duties. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(c) of FOIA. 13) Section 7(1)(f) of FOIA exempts from inspection and copying, in relevant part, \"[p ]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated[.]\" Purely factual information is not within the scope of this exemption unless it is inextricably intertwined with predecisional deliberative material. 14) The redacted portions of the questionnaires are purely factual in nature, and the State's Attorney's Office did not demonstrate that disclosure would expose the substance of predecisional deliberations. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(f) of FOIA. 15) Section 7(1)(m) of FOIA exempts from disclosure \"[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.\" In addition to the attorney-client privilege, the section 7(1)(m) exemption encompasses the work-product doctrine, which protects the theories, mental impressions, or litigation plans of a party's attorney. 16) The questionnaires at issue do not contain or reference any legal advice sought by police officers or given by the State's Attorney's Office, or reveal the theories, mental impressions, or litigation plans of the State's Attorney's Office. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1 )(m) of FOIA. Therefore, it is the opinion of the Attorney General that the Cook County State's Attorney's Office improperly redacted the questionnaires responsive to Max Blaisdell's August 11, 2025, Freedom of Information Act request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Blaisdell with unredacted copies of the questionnaires. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within Mr. Max Blaisdell Ms. Charita Callaway December 23, 2025 Page 11 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Max Blaisdell as defendants. See 5 ILCS 140/11.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL !Z - By: R. Douglas Rees Chief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-015) upon: Mr. Max Blaisdell Invisible Institute 5534 South Dorchester Avenue, Unit 1 Chicago, Illinois 60637 Max.Blaisdell@gmail.com Ms. Charita Callaway FOIA Officer Cook County State's Attorney's Office 50 West Washington Street Chicago, Illinois 60602 SAO.FOIA@CookCountySAO.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 23, 2025. Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Max Blaisdell requested records from the Cook County State's Attorney's Office identifying police officers who might require disclosure under Brady/Giglio rules. The Attorney General's office determined that the State's Attorney's Office did not have a valid legal basis to redact the information in the questionnaires. This means the office must release the unredacted records to the requester.","card_headline":"Records identifying officers flagged under Brady/Giglio protocols","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-89024/","full_text":"This binding opinion is issued by the Attorney General pursuant to section 9.5(f) of the Freedom oflnformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). For the reasons discussed below, this office concludes that Cook County State's Attorney's Office (State's Attorney's Office) improperly redacted questionnaires responsive to Mr. Max Blaisdell's August 11, 2025, FOIA request. On that date, Mr. Blaisdell, on behalf of the Invisible Institute, submitted a FOIA request to the State's Attorney's Office via its online FOIA portal seeking copies of \"records sufficient to show: -all law enforcement officers or other law enforcement experts who have been identified as potentially requiring disclosure via the Brady/Giglio Form (meaning a yes answer was written in response on one of the included questions) from July 8, 2025 through the date this request is processed.\" 1 On August 14, 2025, the State's Attorney's Office responded to 1FOIA portal message from Max Blaisdell to Cook County State's Attorney's Office (August 11, I I 2025). 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttorneyGeneral.gov Mr. Max Blaisdell Ms. Charita Callaway \n\nMr. Blaisdell by providing him with copies of four police officer witness questionnaires but redacting the following information from each: (i) the police officer's name (in the \"Witness Name\" field); (ii) the police officer's answer to the question of whether they had ever been arrested, charged with, or convicted of a criminal offense; and (iii) the section for \"Additional Information\" (except for the one questionnaire in which this section is blank).2 The State's Attorney's Office cited sections 2.15(b) and 7(1)(c) ofFOIA as its bases for the redactions,3 and also claimed that the requested records are not public records or otherwise available, providing an outdated citation to a provision of the Department of State Police Law.4 On September 4, 2025, Mr. Blaisdell submitted the above-referenced Request for Review contesting the State's Attorney's Office's redactions to the four police officer witness questionnaires. 5 He asserted: The records at issue are Brady/Giglio disclosure questionnaires completed by law enforcement officers and experts for use in criminal proceedings. These forms are not private \"rap sheets\" or general \"criminal history reports,\" but rather sworn attestations by public officials about professional misconduct, credibility, and disciplinary history. Such information is created and maintained for the purpose of informing courts, defense counsel, and prosecutors, and thus falls squarely within the scope of public business.[ 6l Mr. Blaisdell additionally asserted: \"These records concern the professional honesty and integrity of law enforcement officers who testify in court- a matter of profound public interest and accountability.\"7 2 Letter from Charita Callaway, FOIA Officer, Office of the State's Attorney, Cook County, Illinois, to Max Blaisdell, Invisible Institute/Hyde Park Herald/South Side Weekly (August 14, 2025). 35 ILCS 140/2.15(b) (West 2024); 5 ILCS 140/7(1)(c) (West 2024). 4 See 20 ILCS 2605/55a(5)(c) (2000) (providing that the Department of State Police has a duty to \"procure and file criminal history records as is necessary and helpful to plan programs of crime prevention, law enforcement and criminal justice\"). Public Act 91-239, effective January I, 2000, renumbered section 55a(5) as section 2605-300 of the Department of State Police Law (20 ILCS 2605/2605-300). Public Act 102-538, effective August 20, 2021, then repealed section 2605-300 and added the subject language to section 2605-200(a)(9) of the Illinois State Police Law (20 ILCS 2605/2605-200(a)(9) (West 2024)), where it presently is located. 5E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). 6E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). 7E-mail from Max Blaisdell to Public Access Counselor (September 4, 2025). Mr. Max Blaisdell Ms. Charita Callaway \n\nOn September 17, 2025, the Public Access Bureau e-mailed a copy of the Request for Review to the State's Attorney's Office, 8 accompanied by a letter requesting unredacted copies of the questionnaires for this office's confidential review and a detailed written explanation of the legal and factual bases for the applicability of the section 7(1)(c) exemption.9 On September 22, 2025, the State's Attorney's Office furnished unredacted copies of the questionnaires and its written answer to this office's letter.10 Also on that date, the State's Attorney's Office issued a revised response to Mr. Blaisdell in which it expanded on the reasons for its partial denial. 11 In particular, the State's Attorney's Office asserted the redactions were also proper pursuant to sections 7(1)(f) and 7(1)(m) of FOIA.12 On September 23, 2025, this office forwarded a copy of the State's Attorney Office's answer to Mr. Blaisdell and notified him of his opportunity to reply in writing.13 On September 29, 2025, Mr. Blaisdell replied by maintaining his objections to the redactions.14 On November 7, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to December 24, 2025, pursuant to section 9.5(f) ofFOIA. 15 On December 5, 2025, an Assistant Attorney General (AAG) in the Public Access contacted the State's Attorney's Office to clarify its citations of section 2.15(b) ofFOIA and section 55a(5)(c) of the Department of State Police Law.16 In a December 8, 2025, telephone 8E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Charita] Calloway (September 17, 2025). 9 Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Charita Callaway, FOIA Officer, Cook County State's Attorney's Office (September 17, 2025), at 2. 10 Letter from Charita Callaway, FOIA Officer, Office of the State's Attorney, Cook County, Illinois, to Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (September 22, 2025). 11 Letter from Charita Callaway, FOfA Officer, Office of the State's Attorney, Cook County, Illinois, to Max Blaisdell, lnvisible Institute/Hyde Park Herald/South Side Weekly (September 22, 2025). 125 ILCS 140/7(1)(t), (l)(m) (West 2024). 13 Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Max Blaisdell, Journalist, Invisible Institute (September 23, 2025). 14E-mail from Max Blaisdell to [Matt] Goodman, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (September 29, 2025). 15 Letter from Matt Goodman, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Max Blaisdell, Journalist, Invisible Institute, and Charita Callaway, FOIA Officer, Cook County State's Attorney's Office (November 7, 2025). 16E-mail from Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General, to [Charita] Callaway (December 5, 2025). Mr. M [...] ral, Public Access Bureau (December 9, 2025). Mr. Max Blaisdell Ms. Charita Callaway \n\n2) On August 14, 2025, the State's Attorney's Office provided Mr. Blaisdell with copies of four police officer witness questionnaires with redactions pursuant to sections 2.15(b) and 7(1)(c) of FOIA. The State's Attorney's Office also claimed that the requested records are not public records or otherwise available, citing a former provision of the Department of State Police Law (20 ILCS 2605/55a(5)(c)). 3) On September 8, 2025, Mr. Blaisdell submitted the above-referenced Request for Review contesting the State's Attorney's Office's redaction of the four questionnaires. 4) On September 17, 2025, the Public Access Bureau sent a copy of the Request for Review to the State's Attorney's Office and asked it to provide unredacted copies of the contested questionnaires for this office's confidential review. This office also asked the State's Attorney's Office to provide a detailed explanation of the factual and legal bases for redacting those records. 5) On September 22, 2025, the State's Attorney's Office furnished the requested materials to this office. 6) On September 23, 2025, the Public Access Bureau forwarded a copy of the State's Attorney's Office's written answer to Mr. Blaisdell and notified him of his right to reply. 7) On September 29, 2025, Mr. Blaisdell replied. 8) On November 7, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 9) On December 11, 2025, the State's Attorney's Office issued an amended answer to Mr. Blaisdell and to this office, asserting that the redacted information is exempt only pursuant to sections 7(1)(c), 7(1)(f), and 7(l)(m) of FOIA. 10) The records at issue in this Request for Review consist of four police officer witness questionnaires with the following information redacted: (i) the police officer's name; (ii) the police officer's answer to the question pertaining to whether they had ever been arrested, charged with, or convicted of a criminal offense; and (iii) a section for \"Additional Information.\" 11) Section 7(1)(c) exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c) expressly provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" Mr. Max Blaisdell Ms. Charita Callaway \n\n12) Disclosure of the redacted information would not constitute a clearly unwarranted invasion of personal privacy because the information directly bears on the police officers' public duties. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(c) of FOIA. 13) Section 7(1)(f) of FOIA exempts from inspection and copying, in relevant part, \"[p ]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated[.]\" Purely factual information is not within the scope of this exemption unless it is inextricably intertwined with predecisional deliberative material. 14) The redacted portions of the questionnaires are purely factual in nature, and the State's Attorney's Office did not demonstrate that disclosure would expose the substance of predecisional deliberations. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(f) of FOIA. 15) Section 7(1)(m) of FOIA exempts from disclosure \"[c]ommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies.\" In addition to the attorney-client privilege, the section 7(1)(m) exemption encompasses the work-product doctrine, which protects the theories, mental impressions, or litigation plans of a party's attorney. 16) The questionnaires at issue do not contain or reference any legal advice sought by police officers or given by the State's Attorney's Office, or reveal the theories, mental impressions, or litigation plans of the State's Attorney's Office. Accordingly, this office concludes that the State's Attorney's Office has not met its burden of proving that the redacted information is exempt from disclosure under section 7(1)(m) of FOIA. Therefore, it is the opinion of the Attorney General that the Cook County State's Attorney's Office improperly redacted the questionnaires responsive to Max Blaisdell's August 11, 2025, Freedom of Information Act request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply with this opinion by providing Mr. Blaisdell with unredacted copies of the questionnaires. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook or Sangamon County within Mr. Max Blaisdell Ms. Charita Callaway \n\n35 days of the date of this decision naming the Attorney General of Illinois and Mr. Max Blaisdell as defendants. See 5 ILCS 140/11.5 (West 2024). Very truly yours, KWAMERAOUL ATTORNEY GENERAL !Z - By: R. Douglas Rees Chief Deputy Attorney General CERTIFICATE OF SERVICE Joshua M. Jones, Bureau Chief, Public Access Bureau, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 25-015) upon: Mr. Max Blaisdell Invisible Institute 5534 South Dorchester Avenue, Unit 1 Chicago, Illinois 60637 Max.Blaisdell@gmail.com Ms. Charita Callaway FOIA Officer Cook County State's Attorney's Office 50 West Washington Street Chicago, Illinois 60602 SAO.FOIA@CookCountySAO.org by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on December 23, 2025. Joshua M. Jones Bureau Chief Public Access Bureau, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-8413"}
{"id":212,"orig_master_id":19418,"dup_master_id":19186,"dup_sha256":"c4ebfb4a138612553c06256965b6bb717ccf95047a4528b72674390d37062503","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-02-10","case_number":"2025 PAC 90290","request_numbers":null,"title":"Disclosure of Termination Letter Where Public Employee Criminally Charged with Official Misconduct","filename":"PUBLIC ACCESS OPINION 26-002 (Request for Review 2025 PAC 90290).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-002 (Request for Review 2025 PAC 90290).pdf","word_count":2291,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for the disclosure of a termination letter related to a public employee charged with official misconduct.","plain_summary":"The requester, a newspaper reporter, sought communications regarding the employment status of a state's attorney's office employee, and the office withheld her termination letter as interfering with a pending criminal prosecution and jury selection. The Public Access Counselor held that the letter was a personnel record not possessed for a law enforcement purpose and that the office's generalized assertions did not show disclosure would interfere with any proceeding or deprive anyone of a fair trial. The office was directed to disclose the termination letter, subject to redaction of private information and personal identifying details.","holding":"The Will County State's Attorney's Office improperly withheld the termination letter.","legal_question":"Whether the termination letter was subject to disclosure under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(e), 5 ILCS 140/7(1), 5 ILCS 140/1, 5 ILCS 140/9, 735 ILCS 5/3, 5 ILCS 140/11, 5 ILCS 140/7","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)","7(1)(b)","7(1)(c)"],"public_body":"Will County State's Attorney's Office","requesting_party":"Sarver and Mr. Meyers","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The disclosure of a termination letter for a public employee facing criminal charges for official misconduct.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-002.pdf","sha256":"412cdd79fa2a727e7291dbfd58e6fc98a0a0ae540d8efe5cd5b58b7126883c93","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["personnel records","termination letter","official misconduct","privacy exemption","FOIA"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL f ebruary 10, 2026 PUBLIC ACCESS OPINION 26-002 (Request for Review 2025 PAC 90290) FREEDOM OF INFORMATION ACT: Disclosure of Termination Letter Where Public Employee Criminally Charged with Official Misconduct Mr. Felix Sarver Reporter The Herald-News 1100 Essington Road, Suite 4 Joliet, Illinois 60435 Mr. Kevin J. Meyers Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6th Floor Joliet, Illinois 60432 Dear Mr. Sarver and Mr. Meyers: This binding opinion is issued by the Attorney General pursuant to sec6on 9.5(:f) of the Freedom oflnformation Act (FOIA).1 For the reasons discussed below, this office concludes that the Will County State's Attorney's Office (State's Attorney's Office) improperly withheld the termination letter responsive to Mr. Felix Sarver's October 10, 2025, FOIA request. On that date, Mr. Sarver, on behalf of The Herald-News, submitted a FOIA request to the State's Attorney's Office via e-mail seeking, in relevant part, electronic copies of \"(r]ecords showing any written and electronic communication issued to Amy Burgett-Masse 15 ILCS 140/9.S(f) (West 2024), as amended by Pubiic Act 104-438, effective January I, 2026. 500 South 2nd Street I 115 South LaSalle Street I 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. I II inoisA llorneyGenera I. gov Mr. Felix Sarver Mr. Kevin J. Meyers February I 0, 2026 Page 2 regarding the status of her employment, such as suspensions, resignations or terminations. \"2 On October 20, 2025, the State's Attorney's Office extended its time to respond to the request by five business days pursuant to three subsections of section 3(e) of FOIA (5 ILCS 140/3(e)(ii), (e)(v), (e)(vi) (West 2024)).3 On October 28, 2025, the State's Attorney's Office responded by withholding Ms. Burgett-Masse's termination letter pursuant to sections 7(l)(d)(i) and 7(l)(d)(iii) of FOIA.4 The State's Attorney's Office asserted that the letter \"contains non-public information about the events leading to her termination, which would interfere with the pending criminal prosecution and picking of ajury.\"5 On October 29, 2025, Mr. Sarver submitted the above referenced Request for Review challenging the withholding of the termination letter.6 On November 6, 2025, the Public Access Bureau sent the State's Attorney's Office an e-mail7 with a copy of the Request for Review and an inquiry letter asking the State's Attorney's Office to provide an unredacted copy of the withheld termination letter for this office's confidential review, as well as a detailed written explanation of the factual and legal bases for the applicability of the asserted exemptions.8 Having received no response, this office sent an additional letter to the State's Attorney's Office via e-mail9 on November 25, 2025, 10 and attached a copy of the November 6, 2025, letter as well as another copy of the Request for Review. On December 8, 2025, the State's Attorney's Office provided this office with the 2E-mail from Felix Sarver, The Herald-News, Joliet, Illinois, to [Will County State's Attorney's Office FOIA Officer] (October 10, 2025). 3Letter from Toni M. Renken, Assistant State's Attorney, State's Attorney of Will County, to Felix Sarver, The Herald-News, Joliet, Illinois (October 20, 2025). 45 ILCS 140/7(1)(d)(i), (l)(d)(iii)(West 2024). 5Letter from Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County, to Felix Sarver (October 28, 2025). 6E-mail from Felix Sarver, The Herald-News, to Public Access [Bureau], [Office of the Attorney General] (October 29, 2025). 7E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County] (November 6, 2025). 8Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (November 6, 2025), at 2. 9E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County] (November 25, 2025). 10Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (November 25, 2025). Mr. Felix Sarver Mr. Kevin J. Meyers February 10, 2026 Page 3 requested materials, 11 including a written answer for this office to forward to Mr. Sarver12 as well as information provided confidentially for this office's consideration.13 On December 10, 2025, this office forwarded a copy of the State's Attorney's Office's non-confidential response to Mr. Sarver and notified him of his opportunity to reply.14 Mr. Sarver did not reply. On December 23, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days to February 10, 2026, pursuant to section 9.5(f) of FOIA.15 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Sections 7(1)(d)(i) and 7(1)(d)(iii) of FOIA Sections 7(1)(d)(i) and 7(1)(d)(iii) ofFOIA exempt from disclosure: ( d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: 11E-mail from Kevin Meyers to [Katie] Goldsmith (December 8, 2025). 12Letter from Kevin J. Meyers, Assistant State's Attorney, State's Attorney of Will County, to AAG Katie Goldsmith, Illinois Attorney General's Office (undated). 13 See 5 ILCS 140/9.5(d) (West 2024), as amended by Public Act 104-438, effective January I, 2026 (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential infonnation to which the reques.t pertains redacted from the copy.\"). 14Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Felix Sarver, The Herald-News (December IO, 2025). 15Letter from Katie Goldsmith, Assistant Ai-torney General, Public Access Bureau, Office of the Attorney General, to Felix Sarver, The Herald-News, and Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (December 23, 2025). Mr. Felix Sarver Mr. Kevin J. Meyers February I 0, 2026 Page 4 (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; [or] * * * (iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing[.] (Emphasis added.) In construing a statute, the primary objective is to ascertain and give effect to the intent of the General Assembly. Southern Illinoisan v. Illinois Department ofP ublic Health, 218 Ill. 2d 390, 415 (2006). \"[T]he surest and most reliable indicator of'' legi [...] e Request for Review to the State's Attorney's Office together with a letter asking for an umedacted copy of the termination letter for this office's confidential review. The letter also requested a detailed written explanation of the factual and legal bases for the applicability of the specific exemptions under which the State's Attorney's Office withheld the letter. 6) Having received no response, on November 25, 2025, the Public Access Bureau sent an additional letter to the State's Attorney's Office requesting an unredacted copy of the termination letter and the State's Attorney's Office's written explanation for withholding the letter. The Public Access Bureau attached a copy of the November 6, 2025, letter as well as another copy of the Request for Review. Mr. Felix Sarver Mr. Kevin J. Meyers February 10, 2026 Page 10 7) On December 8, 2025, the State's Attorney's Office furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a non-confidential version to forward to Mr. Sarver. 8) On December 10, 2025, this office forwarded a copy of the State's Attorney's Office's non-confidential response letter to Mr. Sarver and notified him of his opportunity to reply. Mr. Sarver did not reply. 9) On December 23, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to February 10, 2026, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 10) To quality for any exemption in section 7(l)(d) of FOIA, a record must either be (1) created in the course of administrative enforcement proceedings, or (2) possessed by \"any law enforcement or correctional agency for law enforcement purposes[.]\" 11) The State's Attorney's Office has not asserted or provided any indication that the termination letter was created in the course of an administrative enforcement proceeding. 12) Although the State's Attorney's Office is a law enforcement agency that investigates and prosecutes crimes, the termination letter was not created for such a law enforcement purpose. Instead, the letter is a personnel record that documents the termination of Ms. Burgett-Masse's employment. Because the termination letter is not a record possessed by the State's Attorney's Office for a law enforcement purpose, it does not satisfy the threshold requirement to be exempt under section 7(1)(d)(i) or section 7(1)(d)(iii) ofFOIA. 13) Section 7(l)(d)(i) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]\" 14) The State's Attorney's Office's generalized arguments about section 7(l)(d){i) of FOIA do not demonstrate that the exemption applijes to the termination letter. Accordingly, the State's Attorney's Office has not sustained its burden of proving that the termination letter is exempt from disclosure under section 7(1 )(d )(i) of FOIA. 15) Section 7(l)(d)(iii) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing[.]\" 16) The State's Attorney's Office did not demonstrate that disclosure of the termination letter would deprive Ms. Burgett-Masse or any other party of a fair trial or impartial Mr. Felix Sarver Mr. Kevin J. Meyers February 10, 2026 Page 11 hearing. Therefore, the State's Attorney's Office did not prove that the termination letter is exempt from disclosure under section 7(1)(d)(iii) ofFOIA. 17) The information the State's Attorney's Office provided in its confidential response does not support the State's Attorney's Office's assertion that the termination letter is exempt from disclosure. Therefore, it is the opinion of the Attorney General that the Will County State's Attorney's Office has violated FOIA by improperly withholding the termination letter responsive to Mr. Sarver's FOIA request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply w,ith this opinion by disclosing a copy of the termination letter in a supplemental response to Mr. Sarver's request. Pursuant to section 7(1 )(b) of FOIA,27 the State's Attorney's Office may properly redact as \"private information\" the home address, personal e-mail address, and individual's signature that appear in the termination letter.28 Pursuant to section 7(1)(c) of FOIA,29 the State's Attorney's Office also may redact the name of the person listed in section (2)b of the letter. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Felix Sarver as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: R. Douglas Rees Chief Deputy Attorney General 275 ILCS 140/7( I )(b) (West 2024) (e xempting from disclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law, or a court order.\"). 28The Public Access Bureau has consistently concluded that a person's signature is a unique identifier, which may be redacted pursuant to section 7( I) (b) of FOIA. See Ill. Att'y Gen. Pub. Acc. Op. No. 14- 0 I 5, issued November 25, 2014, at 11. 295 IL CS 140/7(1 )(c) (West 2024) (exempting from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\"). CERTIFICATE OF SERVICE Benjamin J. Silver, Supervising Attorney, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-002) upon: Mr. Felix Sarver Reporter The Herald-News 1100 Essington Road, Suite 4 Joliet, Illinois 60435 fsarver@gmai I. com Mr. Kevin J. Meyers Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6th Floor Joliet, Illinois 60432 kmeyers@willcountysao.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on February 10, 2026. Supervising Attorney Benjamin J. Silver Supervising Attorney Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6021","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested a termination letter for a public employee who had been criminally charged with official misconduct. The Will County State's Attorney's Office refused to release it, claiming the letter was exempt under FOIA sections 7(1)(d)(i) and 7(1)(d)(iii) because disclosure would interfere with pending criminal prosecution and deprive the employee of a fair trial. The Attorney General ruled that the termination letter was not a law enforcement record and therefore did not qualify for those exemptions, concluding that the office improperly withheld the letter.","card_headline":"A termination letter for a public employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2025-pac-90290/","full_text":"This binding opinion is issued by the Attorney General pursuant to sec6on 9.5(:f) of the Freedom oflnformation Act (FOIA).1 For the reasons discussed below, this office concludes that the Will County State's Attorney's Office (State's Attorney's Office) improperly withheld the termination letter responsive to Mr. Felix Sarver's October 10, 2025, FOIA request. On that date, Mr. Sarver, on behalf of The Herald-News, submitted a FOIA request to the State's Attorney's Office via e-mail seeking, in relevant part, electronic copies of \"(r]ecords showing any written and electronic communication issued to Amy Burgett-Masse 15 ILCS 140/9.S(f) (West 2024), as amended by Pubiic Act 104-438, effective January I, 2026. 500 South 2nd Street I 115 South LaSalle Street I 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 • Fax: (217) 782-7046 (312) 814-3000 • Fax: (312) 814-3806 (618) 529-6400 • Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www. I II inoisA llorneyGenera I. gov Mr. Felix Sarver Mr. Kevin J. Meyers February I 0, 2026 Page 2 regarding the status of her employment, such as suspensions, resignations or terminations. \"2 On October 20, 2025, the State's Attorney's Office extended its time to respond to the request by five business days pursuant to three subsections of section 3(e) of FOIA (5 ILCS 140/3(e)(ii), (e)(v), (e)(vi) (West 2024)).3 On October 28, 2025, the State's Attorney's Office responded by withholding Ms. Burgett-Masse's termination letter pursuant to sections 7(l)(d)(i) and 7(l)(d)(iii) of FOIA.4 The State's Attorney's Office asserted that the letter \"contains non-public information about the events leading to her termination, which would interfere with the pending criminal prosecution and picking of ajury.\"5 On October 29, 2025, Mr. Sarver submitted the above referenced Request for Review challenging the withholding of the termination letter.6 On November 6, 2025, the Public Access Bureau sent the State's Attorney's Office an e-mail7 with a copy of the Request for Review and an inquiry letter asking the State's Attorney's Office to provide an unredacted copy of the withheld termination letter for this office's confidential review, as well as a detailed written explanation of the factual and legal bases for the applicability of the asserted exemptions.8 Having received no response, this office sent an additional letter to the State's Attorney's Office via e-mail9 on November 25, 2025, 10 and attached a copy of the November 6, 2025, letter as well as another copy of the Request for Review. On December 8, 2025, the State's Attorney's Office provided this office with the 2E-mail from Felix Sarver, The Herald-News, Joliet, Illinois, to [Will County State's Attorney's Office FOIA Officer] (October 10, 2025). 3 Letter from Toni M. Renken, Assistant State's Attorney, State's Attorney of Will County, to Felix Sarver, The Herald-News, Joliet, Illinois (October 20, 2025). 45 ILCS 140/7(1)(d)(i), (l)(d)(iii)(West 2024). 5 Letter from Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County, to Felix Sarver (October 28, 2025). 6E-mail from Felix Sarver, The Herald-News, to Public Access [Bureau], [Office of the Attorney General] (October 29, 2025). 7E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County] (November 6, 2025). 8 Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (November 6, 2025), at 2. 9E-mail from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Kevin Meyers, Assistant State's Attorney, State's Attorney of Will County] (November 25, 2025). 10 Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (November 25, 2025). Mr. Felix Sarver Mr. Kevin J. Meyers \n\nrequested materials, 11 including a written answer for this office to forward to Mr. Sarver12 as well as information provided confidentially for this office's consideration.13 On December 10, 2025, this office forwarded a copy of the State's Attorney's Office's non-confidential response to Mr. Sarver and notified him of his opportunity to reply.14 Mr. Sarver did not reply. On December 23, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days to February 10, 2026, pursuant to section 9.5(f) of FOIA.15 ANALYSIS It is the public policy of the State of Illinois that \"all persons are entitled to full and complete information regarding the affairs of government and the official acts and policies of those who represent them as public officials and public employees consistent with the terms of' FOIA. 5 ILCS 140/1 (West 2024). Under FOIA, \"[a]ll records in the custody or possession of a public body are presumed to be open to inspection or copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS 140/1.2 (West 2024). Sections 7(1)(d)(i) and 7(1)(d)(iii) of FOIA Sections 7(1)(d)(i) and 7(1)(d)(iii) ofFOIA exempt from disclosure: (d) Records in the possession of any public body created in the course of administrative enforcement proceedings, and any law enforcement or correctional agency for law enforcement purposes, but only to the extent that disclosure would: 11E-mail from Kevin Meyers to [Katie] Goldsmith (December 8, 2025). 12 Letter from Kevin J. Meyers, Assistant State's Attorney, State's Attorney of Will County, to AAG Katie Goldsmith, Illinois Attorney General's Office (undated). 13 See 5 ILCS 140/9.5(d) (West 2024), as amended by Public Act 104-438, effective January I, 2026 (\"The Public Access Counselor shall forward a copy of the answer to the person submitting the request for review, with any alleged confidential infonnation to which the reques.t pertains redacted from the copy.\"). 14 Letter from Katie Goldsmith, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Felix Sarver, The Herald-News (December IO, 2025). 15 Letter from Katie Goldsmith, Assistant Ai-torney General, Public Access Bureau, Office of the Attorney General, to Felix Sarver, The Herald-News, and Kevin Meyers, Assistant State's Attorney, Will County State's Attorney's Office (December 23, 2025). Mr. Felix Sarver Mr. Kevin J. Meyers February I 0, 2026 Page 4 (i) interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request; [or] * * * (iii) create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing[.] (Emphasis added.) In construing a statute, the primary objective is to ascertain and give effect to the intent of the General Assembly. Southern Illinoisan v. Illinois Department ofP ublic Health, 218 Ill. 2d 390, 415 (2006). \"[T]he surest and most reliable indicator of'' legi [...] e Request for Review to the State's Attorney's Office together with a letter asking for an umedacted copy of the termination letter for this office's confidential review. The letter also requested a detailed written explanation of the factual and legal bases for the applicability of the specific exemptions under which the State's Attorney's Office withheld the letter. 6) Having received no response, on November 25, 2025, the Public Access Bureau sent an additional letter to the State's Attorney's Office requesting an unredacted copy of the termination letter and the State's Attorney's Office's written explanation for withholding the letter. The Public Access Bureau attached a copy of the November 6, 2025, letter as well as another copy of the Request for Review. Mr. Felix Sarver Mr. Kevin J. Meyers \n\n7) On December 8, 2025, the State's Attorney's Office furnished the requested materials to this office, including a complete version of its answer for this office's confidential review and a non-confidential version to forward to Mr. Sarver. 8) On December 10, 2025, this office forwarded a copy of the State's Attorney's Office's non-confidential response letter to Mr. Sarver and notified him of his opportunity to reply. Mr. Sarver did not reply. 9) On December 23, 2025, the Public Access Bureau extended the time within which to issue a binding opinion by 30 business days, to February 10, 2026, pursuant to section 9.5(f) of FOIA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 10) To quality for any exemption in section 7(l)(d) of FOIA, a record must either be (1) created in the course of administrative enforcement proceedings, or (2) possessed by \"any law enforcement or correctional agency for law enforcement purposes[.]\" 11) The State's Attorney's Office has not asserted or provided any indication that the termination letter was created in the course of an administrative enforcement proceeding. 12) Although the State's Attorney's Office is a law enforcement agency that investigates and prosecutes crimes, the termination letter was not created for such a law enforcement purpose. Instead, the letter is a personnel record that documents the termination of Ms. Burgett-Masse's employment. Because the termination letter is not a record possessed by the State's Attorney's Office for a law enforcement purpose, it does not satisfy the threshold requirement to be exempt under section 7(1)(d)(i) or section 7(1)(d)(iii) ofFOIA. 13) Section 7(l)(d)(i) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"interfere with pending or actually and reasonably contemplated law enforcement proceedings conducted by any law enforcement or correctional agency that is the recipient of the request[.]\" 14) The State's Attorney's Office's generalized arguments about section 7(l)(d){i) of FOIA do not demonstrate that the exemption applijes to the termination letter. Accordingly, the State's Attorney's Office has not sustained its burden of proving that the termination letter is exempt from disclosure under section 7(1)(d)(i) of FOIA. 15) Section 7(l)(d)(iii) ofFOIA exempts from disclosure law enforcement records only to the extent that disclosure would \"create a substantial likelihood that a person will be deprived of a fair trial or an impartial hearing[.]\" 16) The State's Attorney's Office did not demonstrate that disclosure of the termination letter would deprive Ms. Burgett-Masse or any other party of a fair trial or impartial Mr. Felix Sarver Mr. Kevin J. Meyers \n\nhearing. Therefore, the State's Attorney's Office did not prove that the termination letter is exempt from disclosure under section 7(1)(d)(iii) ofFOIA. 17) The information the State's Attorney's Office provided in its confidential response does not support the State's Attorney's Office's assertion that the termination letter is exempt from disclosure. Therefore, it is the opinion of the Attorney General that the Will County State's Attorney's Office has violated FOIA by improperly withholding the termination letter responsive to Mr. Sarver's FOIA request. Accordingly, the State's Attorney's Office is hereby directed to take immediate and appropriate action to comply w,ith this opinion by disclosing a copy of the termination letter in a supplemental response to Mr. Sarver's request. Pursuant to section 7(1)(b) of FOIA,27 the State's Attorney's Office may properly redact as \"private information\" the home address, personal e-mail address, and individual's signature that appear in the termination letter.28 Pursuant to section 7(1)(c) of FOIA,29 the State's Attorney's Office also may redact the name of the person listed in section (2)b of the letter. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Felix Sarver as defendants. See 5 ILCS 140/11.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: R. Douglas Rees Chief Deputy Attorney General 275 ILCS 140/7(I)(b) (West 2024) (e xempting from disclosure \"[p]rivate information, unless disclosure is required by another provision of this Act, a State or federal law, or a court order.\"). 28 The Public Access Bureau has consistently concluded that a person's signature is a unique identifier, which may be redacted pursuant to section 7(I) (b) of FOIA. See Ill. Att'y Gen. Pub. Acc. Op. No. 14- 0 I 5, issued November 25, 2014, at 11. 295 IL CS 140/7(1)(c) (West 2024) (exempting from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\"). CERTIFICATE OF SERVICE Benjamin J. Silver, Supervising Attorney, Public Access Bureau, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-002) upon: Mr. Felix Sarver Reporter The Herald-News 1100 Essington Road, Suite 4 Joliet, Illinois 60435 fsarver@gmai I. com Mr. Kevin J. Meyers Assistant State's Attorney Will County State's Attorney's Office 57 North Ottawa Street, 6th Floor Joliet, Illinois 60432 kmeyers@willcountysao.gov by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on February 10, 2026. Supervising Attorney Benjamin J. Silver Supervising Attorney Public Access Bureau Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6021"}
{"id":213,"orig_master_id":19414,"dup_master_id":19187,"dup_sha256":"731d34be8024372e24ac97c11402859e7cc62a4231959c1c3dce0d1393edb752","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-05-13","case_number":"2026 PAC 92498","request_numbers":null,"title":"Improper Closed Session Discussion of City Hall Building Under the Exception for Purchasing or Leasing Real Property","filename":"PUBLIC ACCESS OPINION 26-004 (Request for Review 2026 PAC 92498).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION 26-004 (Request for Review 2026 PAC 92498).pdf","word_count":2430,"summary":"This document is a binding public access opinion regarding a violation of the Open Meetings Act by the City Council of Lebanon, which improperly discussed topics in closed session that were not authorized by law.","plain_summary":"The requester alleged that a city council improperly discussed the future of its existing City Hall building in closed sessions that were justified as covering the potential purchase of other real property. The Public Access Counselor held that the council's discussions of the current building's condition and disposition were a separate topic not authorized by the real-property-acquisition exception under which the meetings were closed. The council was directed to disclose the portions of the closed-session recordings and minutes concerning the current City Hall building.","holding":"The City of Lebanon City Council violated section 2(a) of the Open Meetings Act.","legal_question":"Did the City Council violate the Open Meetings Act by discussing topics in closed session that are not authorized?","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 55 ILCS 120/2(c), 155 ILCS 120/2(b), 195 ILCS 120/2(c), 5 ILCS 120/7, 235 ILCS 120/7","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)(5)"],"public_body":"City of Lebanon","requesting_party":"Holmam and Mr. Grob","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"closed session","subject_description":"The City Council improperly discussed the acquisition or leasing of real property during closed sessions.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-004.pdf","sha256":"8d393d3c75097488fcfeeeb60906e38f91634d8d5f999c205184faeff83f184f","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","Open Meetings Act","real property","city council"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS KWAMERAOUL May 13, 2026 ATTORNEY GENERAL PUBLIC ACCESS OPINION 26-004 (Request for Review 2026 PAC 92498) OPEN MEETINGS ACT: Improper Closed Session Discussion of City Hall Building Under the Exception for Purchasing or Leasing Real Property Mr. Carl Holman 611 Janet Drive Lebanon, Illinois 62254 The Honorable Paul Grob City Clerk, City of Lebanon 405 North Madison Street Lebanon, Illinois 62254 Dear Mr. Holmam and Mr. Grob: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For tlhe reasons discussed below, this office concludes that the City of Lebanon (City} City Council (Council) violated section 2(a) of OMA1 during its December 22, 2025, and February 9, 2026, regu[ar meetings by discussing topics in closed session that are not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly. BACKGROUND 01 February 20, 2026, Mr. Carl Hoilman submitted a Request for Review to the Public Access Bureau alleging, in pertinent paii, that the Council violated OMA at its December 22, 2025, and February 9, 2026, meetings by improperly entering into closed session to discuss 15 l LCS l 20/2(a) (West 2024), as amended by Public Act I 04-438, effective January 1, 2026. I I 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, lllillois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (2 I 7) 782-1090 • Fax· (2 I 7) 782-7046 (312) 814-3000 • Fax: (312) 8 I 4-3806 (6 I 8) 529-6400 • Fax: (6 I 8) 529-64 I 6 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttomeyGeneral.gov Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 2 its future plans for its City Hall building.2 Mr. Holman stated that the Council began taking steps to inspect the bui~ding in August of 2025, and had discussed during October meetings whether the building was inhabitable.3 He asserted that since then, the Council \"has never openly discussed in any City Council Committee nor Regular Council meetings how much it would cost to renovate the former city hall, or what are the plans for the future city hall building.\"4 Mr. Holman indicated that the Council relied on section 2(c)(6) of OMA5 to close the December 22, 2025, and February 9, 2026, meetings, saying the Council entered closed session \"under Item 6 of the Closed Meeting Exceptions\" related to \"Setting a price for sale or lease of property.\"6 On March 16, 2026, the Public Access Bureau e-mailed7 a copy of the Request for Review to the Council, together with a letter asking the Council to provide a written response to Mr. Holman's allegation as well as copies of the Council's agenda, minutes, and any recordings of the Council's December 22, 2025, and February 9, 2026, meetings.8 On March 23, 2026, the Council's attorney e-mailed this office9 the requested meeting agendas and minutes10 along with a written response. On that same date, the Public Access Bureau forwarded a copy of the 2OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. Mr. Holman's Request for Review also a,lleged that the Council failed to conduct a semi annual review of its closed session meeting minutes and failed to vote to approve closed session minutes at its regular meetings. These all gations are addressed in a separate Request for Review: 2026 PAC 92499. 3OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 4OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 55 ILCS 120/2(c)(6) (West 2024), as amended by Public Act 104-438, effective January I, 2026. Under this section of OMA, a public body may hold closed meetings \"to consider * * * [t]he setting of a price for sale or lease of property owned by the public body.\" 6OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 7E-mail from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Paul Grob, City Clerk, City of Lebanon] (March 16, 2026). 8Letter from Christina Lucente-McCullough Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to the Honorable Paul Grob, City Clerk, City of Lebanon (March 16, 2026), at 1-2. 9E-mail from !Luke A. Behme, Bruckert, Behme & Long, P.C., to [Christina] Lucente McCullough, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 23, 2026). 10Letter from and Luke A. Behme, Attorney for City of Lebanon, Bruckert, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 23, 2026). Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 3 Council's written response to Mr. Holman and notified him of his opportunity to reply.11 He submitted a reply on March 24, 2026.12 On March 30, 2026, the Council's attorney e-mailed this office copies of the closed session recordings from the December 22, 2025, and February 9, 2026, meetings.13 On April 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to May 20, 2026, pursuant to section 3.5(e) of OMA.I4 ANALYSIS Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such exceptions \"are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope.\" 15 (Emphasis added.) The Board's response to this office16 and the minutes of the December 22, 2025,17 and February 9, 2026, 18 meetings indicate that the Board entered closed session at both meetings pursuant to section 2(c)(5) of OMA, 19 rather than section 2(c)(6) as Mr. Holman asserted. The section 2(c)(5) exception applies to \"[t]he purchase or lease ofreal property for the use of the 11 Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carl Holman (March 23, 2026). 12E-mail from Carl Holman to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 24, 2026). 13E-mails from Luke A. Behme, Bruckert, Behme & Long, P.C., to [Christina] Lucente McCullough, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 30, 2026). 14Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carl Holman and Luke A. Behme, Bruckert, Behme & Long, P.C. (April 20, 2026). 155 ILCS 120/2(b) (West 2024), as amended by Public Act 104-438, effective January I, 2026. 16Letter from and Luke A. Behme, Attorney for City of Lebanon, Bruckert, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney Gener.al, Public Access Bureau, Office of the Attorney General (March 23, 2026), at [I]. 17Lebanon City Council, Meeting, December 22, 2025, Minutes [2]. 18Lebanon City Council, Meeting, February 9, 2026, Minutes [2]. 195 ILCS 120/2(c)(5) (West 2024), as amended by Public Act 104-438, effective January I, 2026. Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 4 public body, including meetings held for the purpose of discussing whether a particular parce] should be acquired.\" The Illinois Appellate Comt analyzed the scope of section 2( c) ( 5) of OMA in Galena Gazette Publications, Inc. v. County ofJ o Daviess, 375 Ill. App. 3d 338, 344-45 (2007). There, a public body held a closed session meeting to discuss the possibility of leasing a specific property for [...] tion of its own property, this office concludes that those portions of the Council's December 22, 2025, and February 9, 2026, closed session discussions violated OMA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 20, 2026, Mr. Carl Holman submitted a Request for Review alleging that on December 22, 2025, and February 9, 2026, the City of Lebanon City Council improperly discussed in closed session its future plans for its City Hall building. Mr. Holman's Request for Review was timely filed and otherwise complies with the requirements of section 21 Letter from Luke A. Behme, Brucken, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 23, 2026), at [I]. Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 6 3.5(a) of OMA.22 2) On March 16, 2026, the Public Access Bureau sent a copy of the Request for Review to City Clerk Paul Grob and asked the Council to provide for this office's confidential review copies of the agenda, minutes, and any avaiiable recordings from the Council's December 22, 2025, and February 9, 2026, open and closed meetings. This office also asked the Council to respond in writing to the allegation that it violated OMA by discussing its future plans for its City Hall building in closed session. 3) On March 23, 2026, the Council's attorney provided the Public Access Bureau with its written response as well as copies of the December 22, 2025, and February 9, 2026, meeting agendas and minutes. In this response, the Council explained that it entered closed session during both meetings pursuant to section 2(c )(5) of OMA. 4) On that same date, the Public Access Bureau forwarded a copy of the Council's written response to Mr. Holman and notified him of his opportunity to reply. He replied on March 24, 2026. 5) On March 30, 2026, the Council's attorney provided the Public Access Bureau with copies of the closed session recordings from the December 22, 2025, and February 9, 2026, meetings. 6) On April 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to May 20, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one· of the limited exceptions enumerated in section 2( c) . Section 2( c) (5), which the Council relied on to enter closed session at both meetings, permits a public body to close a portion of a meeting to discuss \"[t]he purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.\" 8) Portions of the closed session discussions at the Council's December 22, 2025, and February 9, 2026, meetings concerned the merits of properties that the City potentially could purchase. Section 2( c) (5) of OMA authorized the Council to discuss those properties in closed sess10n. 22Section 3.5(a) of OMA provides that a Request for Review generally must be filled \"not later than 60 days after the alleged violation.\" February 20, 2026, was the 60th day after the Board's December 22, 2025, meeting. Therefore, Mr. Holman timely submitted his Request for Review on that date. Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 7 9) However, the section 2(c)(5) exception did not authorize the Council to also discuss in closed session its future plans for the cmTent City Hall building. The Council's deliberations about the condition and possible disposition of that existing property, and related financial matters, were independent of the discussions about the potential purchase of other properties. Because the topics were not intertwined in the context in which they were discussed by the Council, considering them separately would not have precluded the Council from fully considering the potential acquisition of property as permitted by the section 2( c )(5) exception under which the Council entered closed session. 10) Accordingly, the Council violated OMA during its December 22, 2025, and February 9, 2026, meetings by improperly discussing the existing City Hall building in closed session. In accordance with these findings of fact and conclusions of law, the Council is directed to remedy this violation by disclosing to Mr. Holman and making publicly available the portions of the December 22, 2025, and February 9, 2026, closed session verbatim recordings and closed session minutes that directly concern the current City Hall building. The Council may redact the portions of these recordings and minutes that concern the potential acquisition of other properties. As required by section 3.5(e) of OMA, the Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA.23 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law.24 An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Carl Holman as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: R. Douglas Rees Chief Deputy Attorney General 235 ILCS 120/7.5 (West 2024). 24735 lLCS 5/3-10 I et seq. (West 2024). Mr. Carl Holman The Honorable Paul Grob May 13, 2026 Page 8 cc: Mr. Luke A. Behme Bruckert, Behme & l ong, P.C. 201 East Hanover New Bad n, Illinois 62265 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chiet~ Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-004) upon: Mr. Carl Holman 611 Janet Drive Lebanon, Illinois 62254 loricarl23@att.net The Honorable Paul Grob City Clerk, City of Lebanon 405 North Madison Street Lebanon, Illinois 62254 clerk@lebanonil.org Mr. Luke A. Behme Bruckert, Behme & Long, P.C. 201 East Hanover New Baden, Illinois 62265 lab@bblattorneys.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 13, 2026. ---- ;?? ~ Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The City of Lebanon City Council held closed-door meetings to discuss city hall building matters, claiming it was allowed under real estate exceptions. The Attorney General's office ruled that these discussions did not actually fit into any legal exceptions for closed meetings and therefore violated the Open Meetings Act, which requires public business to be conducted in public.","card_headline":"Closed-session discussion of real property acquisition","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-92498/","full_text":"This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For tlhe reasons discussed below, this office concludes that the City of Lebanon (City} City Council (Council) violated section 2(a) of OMA1 during its December 22, 2025, and February 9, 2026, regu[ar meetings by discussing topics in closed session that are not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly. BACKGROUND 01 February 20, 2026, Mr. Carl Hoilman submitted a Request for Review to the Public Access Bureau alleging, in pertinent paii, that the Council violated OMA at its December 22, 2025, and February 9, 2026, meetings by improperly entering into closed session to discuss 15 l LCS l 20/2(a) (West 2024), as amended by Public Act I 04-438, effective January 1, 2026. I I 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, lllillois 6270 I Chicago, Illinois 60603 Carbondale, Illinois 62903 (2 I 7) 782-1090 • Fax· (2 I 7) 782-7046 (312) 814-3000 • Fax: (312) 8 I 4-3806 (6 I 8) 529-6400 • Fax: (6 I 8) 529-64 I 6 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.lllinoisAttomeyGeneral.gov Mr. Carl Holman The Honorable Paul Grob \n\nits future plans for its City Hall building.2 Mr. Holman stated that the Council began taking steps to inspect the bui~ding in August of 2025, and had discussed during October meetings whether the building was inhabitable.3 He asserted that since then, the Council \"has never openly discussed in any City Council Committee nor Regular Council meetings how much it would cost to renovate the former city hall, or what are the plans for the future city hall building.\"4 Mr. Holman indicated that the Council relied on section 2(c)(6) of OMA5 to close the December 22, 2025, and February 9, 2026, meetings, saying the Council entered closed session \"under Item 6 of the Closed Meeting Exceptions\" related to \"Setting a price for sale or lease of property.\"6 On March 16, 2026, the Public Access Bureau e-mailed7 a copy of the Request for Review to the Council, together with a letter asking the Council to provide a written response to Mr. Holman's allegation as well as copies of the Council's agenda, minutes, and any recordings of the Council's December 22, 2025, and February 9, 2026, meetings.8 On March 23, 2026, the Council's attorney e-mailed this office9 the requested meeting agendas and minutes10 along with a written response. On that same date, the Public Access Bureau forwarded a copy of the 2OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. Mr. Holman's Request for Review also a,lleged that the Council failed to conduct a semi annual review of its closed session meeting minutes and failed to vote to approve closed session minutes at its regular meetings. These all gations are addressed in a separate Request for Review: 2026 PAC 92499. 3OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 4OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 55 ILCS 120/2(c)(6) (West 2024), as amended by Public Act 104-438, effective January I, 2026. Under this section of OMA, a public body may hold closed meetings \"to consider * * * [t]he setting of a price for sale or lease of property owned by the public body.\" 6OMA - Request for Review by Public Access Counselor (PAC) form submitted by Carl Holman (February 20, 2026), at [2]. 7E-mail from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Illinois Attorney General's Office, to [Paul Grob, City Clerk, City of Lebanon] (March 16, 2026). 8 Letter from Christina Lucente-McCullough Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to the Honorable Paul Grob, City Clerk, City of Lebanon (March 16, 2026), at 1-2. 9E-mail from !Luke A. Behme, Bruckert, Behme & Long, P.C., to [Christina] Lucente McCullough, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 23, 2026). 10 Letter from and Luke A. Behme, Attorney for City of Lebanon, Bruckert, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 23, 2026). Mr. Carl Holman The Honorable Paul Grob \n\nCouncil's written response to Mr. Holman and notified him of his opportunity to reply.11 He submitted a reply on March 24, 2026.12 On March 30, 2026, the Council's attorney e-mailed this office copies of the closed session recordings from the December 22, 2025, and February 9, 2026, meetings.13 On April 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to May 20, 2026, pursuant to section 3.5(e) of OMA.I4 ANALYSIS Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Such exceptions \"are in derogation of the requirement that public bodies meet in the open, and therefore, the exceptions are to be strictly construed, extending only to subjects clearly within their scope.\" 15 (Emphasis added.) The Board's response to this office16 and the minutes of the December 22, 2025,17 and February 9, 2026, 18 meetings indicate that the Board entered closed session at both meetings pursuant to section 2(c)(5) of OMA, 19 rather than section 2(c)(6) as Mr. Holman asserted. The section 2(c)(5) exception applies to \"[t]he purchase or lease ofreal property for the use of the 11 Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carl Holman (March 23, 2026). 12E-mail from Carl Holman to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 24, 2026). 13E-mails from Luke A. Behme, Bruckert, Behme & Long, P.C., to [Christina] Lucente McCullough, [Assistant Attorney General, Public Access Bureau, Office of the Attorney General] (March 30, 2026). 14 Letter from Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, to Carl Holman and Luke A. Behme, Bruckert, Behme & Long, P.C. (April 20, 2026). 155 ILCS 120/2(b) (West 2024), as amended by Public Act 104-438, effective January I, 2026. 16 Letter from and Luke A. Behme, Attorney for City of Lebanon, Bruckert, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney Gener.al, Public Access Bureau, Office of the Attorney General (March 23, 2026), at [I]. 17 Lebanon City Council, Meeting, December 22, 2025, Minutes [2]. 18 Lebanon City Council, Meeting, February 9, 2026, Minutes [2]. 195 ILCS 120/2(c)(5) (West 2024), as amended by Public Act 104-438, effective January I, 2026. Mr. Carl Holman The Honorable Paul Grob \n\npublic body, including meetings held for the purpose of discussing whether a particular parce] should be acquired.\" The Illinois Appellate Comt analyzed the scope of section 2(c) (5) of OMA in Galena Gazette Publications, Inc. v. County ofJ o Daviess, 375 Ill. App. 3d 338, 344-45 (2007). There, a public body held a closed session meeting to discuss the possibility of leasing a specific property for [...] tion of its own property, this office concludes that those portions of the Council's December 22, 2025, and February 9, 2026, closed session discussions violated OMA. FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On February 20, 2026, Mr. Carl Holman submitted a Request for Review alleging that on December 22, 2025, and February 9, 2026, the City of Lebanon City Council improperly discussed in closed session its future plans for its City Hall building. Mr. Holman's Request for Review was timely filed and otherwise complies with the requirements of section 21 Letter from Luke A. Behme, Brucken, Behme & Long, P.C., to Christina Lucente-McCullough, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (March 23, 2026), at [I]. Mr. Carl Holman The Honorable Paul Grob \n\n3.5(a) of OMA.22 2) On March 16, 2026, the Public Access Bureau sent a copy of the Request for Review to City Clerk Paul Grob and asked the Council to provide for this office's confidential review copies of the agenda, minutes, and any avaiiable recordings from the Council's December 22, 2025, and February 9, 2026, open and closed meetings. This office also asked the Council to respond in writing to the allegation that it violated OMA by discussing its future plans for its City Hall building in closed session. 3) On March 23, 2026, the Council's attorney provided the Public Access Bureau with its written response as well as copies of the December 22, 2025, and February 9, 2026, meeting agendas and minutes. In this response, the Council explained that it entered closed session during both meetings pursuant to section 2(c)(5) of OMA. 4) On that same date, the Public Access Bureau forwarded a copy of the Council's written response to Mr. Holman and notified him of his opportunity to reply. He replied on March 24, 2026. 5) On March 30, 2026, the Council's attorney provided the Public Access Bureau with copies of the closed session recordings from the December 22, 2025, and February 9, 2026, meetings. 6) On April 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to May 20, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 7) Section 2(a) of OMA requires that all meetings of public bodies be open to the public unless the subject of the meeting is covered by one· of the limited exceptions enumerated in section 2(c). Section 2(c) (5), which the Council relied on to enter closed session at both meetings, permits a public body to close a portion of a meeting to discuss \"[t]he purchase or lease of real property for the use of the public body, including meetings held for the purpose of discussing whether a particular parcel should be acquired.\" 8) Portions of the closed session discussions at the Council's December 22, 2025, and February 9, 2026, meetings concerned the merits of properties that the City potentially could purchase. Section 2(c) (5) of OMA authorized the Council to discuss those properties in closed sess10n. 22 Section 3.5(a) of OMA provides that a Request for Review generally must be filled \"not later than 60 days after the alleged violation.\" February 20, 2026, was the 60th day after the Board's December 22, 2025, meeting. Therefore, Mr. Holman timely submitted his Request for Review on that date. Mr. Carl Holman The Honorable Paul Grob \n\n9) However, the section 2(c)(5) exception did not authorize the Council to also discuss in closed session its future plans for the cmTent City Hall building. The Council's deliberations about the condition and possible disposition of that existing property, and related financial matters, were independent of the discussions about the potential purchase of other properties. Because the topics were not intertwined in the context in which they were discussed by the Council, considering them separately would not have precluded the Council from fully considering the potential acquisition of property as permitted by the section 2(c)(5) exception under which the Council entered closed session. 10) Accordingly, the Council violated OMA during its December 22, 2025, and February 9, 2026, meetings by improperly discussing the existing City Hall building in closed session. In accordance with these findings of fact and conclusions of law, the Council is directed to remedy this violation by disclosing to Mr. Holman and making publicly available the portions of the December 22, 2025, and February 9, 2026, closed session verbatim recordings and closed session minutes that directly concern the current City Hall building. The Council may redact the portions of these recordings and minutes that concern the potential acquisition of other properties. As required by section 3.5(e) of OMA, the Council shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA.23 This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law.24 An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 3 5 days of the date of this decision naming the Attorney General of Illinois and Mr. Carl Holman as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAMERAOUL ATTORNEY GENERAL By: R. Douglas Rees Chief Deputy Attorney General 235 ILCS 120/7.5 (West 2024). 24735 lLCS 5/3-10 I et seq. (West 2024). Mr. Carl Holman The Honorable Paul Grob \n\ncc: Mr. Luke A. Behme Bruckert, Behme & l ong, P.C. 201 East Hanover New Bad n, Illinois 62265 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chiet~ Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-004) upon: Mr. Carl Holman 611 Janet Drive Lebanon, Illinois 62254 loricarl23@att.net The Honorable Paul Grob City Clerk, City of Lebanon 405 North Madison Street Lebanon, Illinois 62254 clerk@lebanonil.org Mr. Luke A. Behme Bruckert, Behme & Long, P.C. 201 East Hanover New Baden, Illinois 62265 lab@bblattorneys.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 13, 2026. ----;?? ~ Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756"}
{"id":214,"orig_master_id":19188,"dup_master_id":19415,"dup_sha256":"19dfcc0dbe230914c58e3152997c771e8619f0990e136f21d1c6a4dce0d3f79f","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-04-17","case_number":"2026 PAC 91898","request_numbers":null,"title":"Improper Closed Session Discussion of Overdue Loans","filename":"PUBLIC ACCESS OPINION 26-003 (Request for Review 2026 PAC 91898).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 26-003 (Request for Review 2026 PAC 91898).pdf","word_count":2423,"summary":"The Attorney General issued a binding opinion on January 21, 2026 . The Board of Trustees violated the Open Meetings Act by failing to follow the proper procedure for entering closed session and by holding a closed session discussion not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly .","plain_summary":"The requester, a village trustee, alleged that a village board's mayor cited a \"personnel\" closed-session exception but then discussed businesses' overdue tax-increment-financing loans instead. The Public Access Counselor held that the board violated the Open Meetings Act's procedure for entering closed session by failing to publicly cite and record the actual exception relied upon, and that the loan discussion was not shown to involve probable or imminent litigation as later claimed. The board was directed to make the closed-session recording of that discussion publicly available.","holding":"The Village of Caseyville Board of Trustees violated the Open Meetings Act by entering a closed session without following proper procedure and by discussing matters not permitted under any OMA closed-session exception.","legal_question":"Whether the Village of Caseyville Board of Trustees violated the Open Meetings Act by entering a closed session without proper procedure and discussing matters not authorized by the Act's exceptions.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 35 ILCS 120/2(c), 5 ILCS 120/1, 5 ILCS 120/2, 5 ILCS 120/2(c), 135 ILCS 120/2(a), 85 ILCS 120/2(b), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":["5 ILCS 120/2(c)"],"public_body":"Village of Caseyville Board","requesting_party":"Buckley and Mr. Luebbers","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"closed session","subject_description":"The Board improperly held a closed session to discuss overdue loans under the pretext of personnel issues.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-003.pdf","sha256":"545b08de351e13784954843f19544abc586560cdee761970ce305bf3ef91c79c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["closed session","Open Meetings Act","public business","transparency"],"truncated_suspect":0,"site_category":"Closed Sessions","full_text_pre_clean":"STATE OF ILLINOIS KWAME RAOUL . ATTORNEY GENERAL April 17, 2026 PUBLIC ACCESS OPINION 26-003 (Request for Review 2026 PAC 91898) OPEN MEETINGS ACT: Improper Closed Session Discussion of Overdue Loans The Honorable John Buckley, Trustee Village of Caseyville Board 909 South Main Street Caseyville, Illinois 62232 The Honorable Kent Luebbers, Mayor Village of Caseyville 909 South Main Street Caseyville, Illinois 62232 Dear Mr. Buckley and Mr. Luebbers: This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Caseyville (Village) Board of Trustees (Board) violated OMA during its January 21, 2026, meeting by failing to follow the proper procedure for entering closed session and by holding a closed session discussion that was not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly. BACKGROUND On January 22, 2026, Mr. John Buckley, a Village trustee, submitted a Request for Review to the Public Access Bureau alleging that the Village's mayor called for a closed session for \"personnel issues[]\" at the Board's January 21, 2026, meeting, but the Board did not 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806 (618) 529-6400 * Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.IllinoisAttorneyGeneral.gov Sralsen eoumei> 4005 The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 2 actually discuss personnel issues during the closed session.! He asserted: \"When the board went into Executive Session the discussion was related to businesses with outstanding T.I.F[.] loans. I strongly feel this is deceiving to board members and also to citizens at the meeting.\"” On February 4, 2026, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Mr. Buckley's allegation and to identify the exception in section 2(c) of OMA? that served as the basis for the Board entering closed session during the January 21, 2026, meeting. The Public Access Bureau also asked the Board to address how the closed session discussion fell within the scope of that exception and to provide copies of the meeting's agenda, open and closed session minutes, and verbatim recording of the closed session.” Having received no response, the Public Access Bureau sent a second letter to the Board on February 20, 2026, again asking it to respond.® On February 27, 2026, counsel for the Board submitted via e-mail a written answer, the full minutes, and verbatim recordings of the full meeting, including the closed session.’ In its written answer, dated February 26, 2026, the Board identified \"the litigation exception\" as the basis for entering closed session and asserted that the Mayor misspoke by instead citing \"the personnel exception[.]\"* The Board's response stated that the discussion concerned \"Tax Increment Financing loans that were in arrears and owed to the Village.\" On March 3, 2026, the Public Access Bureau forwarded a copy of the written answer to Mr. ‘E-mail from John Buckley, Caseyville Village Trustee, to Public Access [Bureau, Office of the Attorney General] (January 22, 2026). E-mail from John Buckley, Caseyville Village Trustee, to Public Access [Bureau, Office of the Attorney General] (January 22, 2026). 35 ILCS 120/2(c) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. ‘Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 4, 2026), at 1. Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 4, 2026), at 1. °Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 20, 2026). \"E-mail from Michael L. Wagner, Partner, Clayborne & Wagner, LLC, to Teresa Lim (F ebruary 21,2026), *Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s}] Attorney General (February 26, 2026), at [1]. *Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s] Attorney General (February 26, 2026), at [1]. The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 3 Buckley.!° On March 5, 2026, Mr. Buckley replied to this office, asserting that \"T.I.F. loans were Clearly the subject[]\" of the closed session and that \"[l]awsuits and litigations were not discussed.\"!! On March 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to April 21, 2026, pursuant to section 3.5(e) of OMA.!” ANALYSIS OMA is intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2024). Section 2(a) of OMA)? provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Section 2a of OMA Section 2a of OMA (5 ILCS 120/2a (West 2024)) provides that \"[a] public body may hold a meeting closed to the public, or close a portion of a meeting to the public, upon a majority vote of a quorum present, taken at a meeting open to the public for which notice has been given as required by this Act.\" The provision further provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.\" (Emphasis added.) In its answer to this office, the Board stated that the Mayor \"misspoke when he cited the Personnel exception as the reason for entering the closed session.\"!* The Board stated that the Mayor \"should have stated that the discussion would be about litigation, which would have been allowable under 5 ILCS 120/2(c)(11).\"\" Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable John Buckley, Trustee, Village of Caseyville (March 3, 2026). ''E-mail from John Buckley, Caseyville Village Trustee, to [Teresa] Lim (March 5, 2026). \"Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable John Buckley, Trustee, Village of Caseyville, and The Honorable Kent Luebbers, Mayor, Village of Caseyville (March 20, 2026). 135 ILCS 120/2(a) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. ‘Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, I[linoi[s] Attorney General (February 26, 2026), at [1]. 'SLetter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s] Attorney General (February 26, 2026), at [1]. The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 4 It is undisputed that the Board's closed session discussion did not pertain to personnel issues. Moreover, this office's review of the Board's recording of the meeting's open session revealed that the Board did not publicly disclose \"personnel\" or any other issue as the basis for closing the meeting; the Board simply appeared to approve a motion for a closed session.!® In addition, the meeting minutes of the open session [...] (5 ILCS 120/3.5(a) (West 2024)). “Village of Caseyville, Regular Board Meeting, January 21, 2026, Executive Session Minutes. 5Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, IIlinoi[s] Attorney General (February 26, 2026). 6Village of Caseyville, Regular Board Meeting, January 21, 2026, Video File (on file with Public Access Bureau, Office of the Attorney General) (labeled \"Executive Session 1.21.26\"). The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 8 3) On February 4, 2026, the Public Access Bureau sent a copy of the Request for Review to the Village's mayor along with a letter asking the Board to provide a written answer to Mr. Buckley's OMA allegation, and copies of the meeting agenda, open and closed session minutes, and closed session verbatim recording for this office's confidential review. 4) On February 20, 2026, the Public Access Bureau sent a second letter to the Board, again requesting a response. This office included copies of this office's February 4, 2026, correspondence and the Request for Review. 5) On February 27, 2026, counsel for the Board furnished a written answer and the open and closed session minutes and verbatim recordings of the open and closed session portions of the January 21, 2026, meeting. 6) On March 3, 2026, this office sent a copy of the Board's answer to Mr. Buckley. Mr. Buckley replied on March 5, 2026, maintaining that the Board's closed session discussion was improper. 7) On March 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to April 21, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" 9) Section 2a of OMA provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.\" 10) The minutes of the open session portion of the Board's January 21, 2026, meeting state, with respect to the Executive Session: \"Need to discuss Personnel, will meet after Committee Meeting.\" 11) In its written answer, the Board did not dispute that it did not discuss personnel matters in the closed session. The Board stated that it discussed TIF loans that were in arrears and owed to the village. 12) The recording of the open session portion of the meeting reflects that the Board did not cite a specific exception enumerated in section 2(c) as a basis for closing its January 21, 2026, meeting. The Board also did not record and enter into the minutes the exception authorizing it to close a portion of the meeting. Accordingly, the Board violated section 2a of OMA. The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 9 13) The Board argued that section 2(c)(11) of OMA authorized its closed session discussion because it related to litigation. 14) Section 2(c)(11) of OMA permits a public body to close a portion of a meeting to discuss \"[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.\" 15) If litigation is not pending, section 2(c)(11) authorizes a closed session discussion only when the public body has reasonable grounds to believe that litigation is more likely than not to be instituted or that such an occurrence is close at hand. 16) The Board failed to determine or find that litigation was probable or imminent or record and enter into the closed session minutes the basis for such a finding, as required by section 2(c)(11). 17) The Board's January 21, 2026, closed session discussion concerning the overdue TIF loans did not pertain to pending, probable, or imminent litigation. Although the Board stated it was considering litigation as an option to recover the remaining balances of the TIF loans, there is no indication that such litigation was probable or imminent. Accordingly, the Board violated section 2(a) of OMA by discussing in closed session matters outside the scope of section 2(c)(11) of OMA. In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by making publicly available the closed session verbatim recording of its January 21, 2026, meeting. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2024). The Honorable John Buckley The Honorable Kent Luebbers April 17, 2026 Page 10 This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Buckley as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAME RAOUL ATTORNEY GENERAL R. Douglas Rees Chief Deputy Attorney General ec; Mr. Michael L. Wagner Clayborne & Wagner LLP 525 West Main Street, Suite 105 Belleville, [llinois 62220 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-003) upon: The Honorable John Buckley, Trustee Village of Caseyville Board 909 South Main Street Caseyville, Illinois 62232 jbuckley@caseyville.org The Honorable Kent Luebbers, Mayor Village of Caseyville 909 South Main Street Caseyville, Illinois 62232 kluebbers@caseyville.org Mr. Michael L. Wagner Clayborne & Wagner LLP 525 West Main Street, Suite 105 Belleville, Illinois 62220 mwagner@claybornewagner.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on April 17, 2026. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Caseyville Board of Trustees held a closed-door meeting to discuss overdue loans, claiming it was for 'personnel issues.' The Attorney General ruled this was illegal because the Board did not follow the required steps to enter a closed session and because discussing financial loans is not a valid reason to exclude the public from a meeting. This means the Board failed to conduct public business in an open and transparent manner as required by law.","card_headline":"A village board's closed-session discussion of overdue loans","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-91898/","full_text":"This binding opinion is issued by the Attorney General pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Caseyville (Village) Board of Trustees (Board) violated OMA during its January 21, 2026, meeting by failing to follow the proper procedure for entering closed session and by holding a closed session discussion that was not authorized by any of the exceptions to the general requirement that public bodies conduct public business openly. BACKGROUND On January 22, 2026, Mr. John Buckley, a Village trustee, submitted a Request for Review to the Public Access Bureau alleging that the Village's mayor called for a closed session for \"personnel issues[]\" at the Board's January 21, 2026, meeting, but the Board did not 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806 (618) 529-6400 * Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.IllinoisAttorneyGeneral.gov Sralsen eoumei> 4005 The Honorable John Buckley The Honorable Kent Luebbers \n\nactually discuss personnel issues during the closed session.! He asserted: \"When the board went into Executive Session the discussion was related to businesses with outstanding T.I.F[.] loans. I strongly feel this is deceiving to board members and also to citizens at the meeting.\"” On February 4, 2026, the Public Access Bureau sent a copy of the Request for Review to the Board and asked it to respond to Mr. Buckley's allegation and to identify the exception in section 2(c) of OMA? that served as the basis for the Board entering closed session during the January 21, 2026, meeting. The Public Access Bureau also asked the Board to address how the closed session discussion fell within the scope of that exception and to provide copies of the meeting's agenda, open and closed session minutes, and verbatim recording of the closed session.” Having received no response, the Public Access Bureau sent a second letter to the Board on February 20, 2026, again asking it to respond.® On February 27, 2026, counsel for the Board submitted via e-mail a written answer, the full minutes, and verbatim recordings of the full meeting, including the closed session.’ In its written answer, dated February 26, 2026, the Board identified \"the litigation exception\" as the basis for entering closed session and asserted that the Mayor misspoke by instead citing \"the personnel exception[.]\"* The Board's response stated that the discussion concerned \"Tax Increment Financing loans that were in arrears and owed to the Village.\" On March 3, 2026, the Public Access Bureau forwarded a copy of the written answer to Mr. ‘E-mail from John Buckley, Caseyville Village Trustee, to Public Access [Bureau, Office of the Attorney General] (January 22, 2026). E-mail from John Buckley, Caseyville Village Trustee, to Public Access [Bureau, Office of the Attorney General] (January 22, 2026). 35 ILCS 120/2(c) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. ‘Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 4, 2026), at 1. Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 4, 2026), at 1. °Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable Kent Luebbers, Mayor, Village of Caseyville (February 20, 2026). \"E-mail from Michael L. Wagner, Partner, Clayborne & Wagner, LLC, to Teresa Lim (F ebruary 21,2026), *Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s}] Attorney General (February 26, 2026), at [1]. *Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s] Attorney General (February 26, 2026), at [1]. The Honorable John Buckley The Honorable Kent Luebbers \n\nBuckley.!° On March 5, 2026, Mr. Buckley replied to this office, asserting that \"T.I.F. loans were Clearly the subject[]\" of the closed session and that \"[l]awsuits and litigations were not discussed.\"!! On March 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to April 21, 2026, pursuant to section 3.5(e) of OMA.!” ANALYSIS OMA is intended \"to ensure that the actions of public bodies be taken openly and that their deliberations be conducted openly.\" 5 ILCS 120/1 (West 2024). Section 2(a) of OMA)? provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" Section 2a of OMA Section 2a of OMA (5 ILCS 120/2a (West 2024)) provides that \"[a] public body may hold a meeting closed to the public, or close a portion of a meeting to the public, upon a majority vote of a quorum present, taken at a meeting open to the public for which notice has been given as required by this Act.\" The provision further provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.\" (Emphasis added.) In its answer to this office, the Board stated that the Mayor \"misspoke when he cited the Personnel exception as the reason for entering the closed session.\"!* The Board stated that the Mayor \"should have stated that the discussion would be about litigation, which would have been allowable under 5 ILCS 120/2(c)(11).\"\" Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable John Buckley, Trustee, Village of Caseyville (March 3, 2026). ''E-mail from John Buckley, Caseyville Village Trustee, to [Teresa] Lim (March 5, 2026). \"Letter from Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General, to The Honorable John Buckley, Trustee, Village of Caseyville, and The Honorable Kent Luebbers, Mayor, Village of Caseyville (March 20, 2026). 135 ILCS 120/2(a) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. ‘Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, I[linoi[s] Attorney General (February 26, 2026), at [1]. 'SLetter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, Illinoi[s] Attorney General (February 26, 2026), at [1]. The Honorable John Buckley The Honorable Kent Luebbers \n\nIt is undisputed that the Board's closed session discussion did not pertain to personnel issues. Moreover, this office's review of the Board's recording of the meeting's open session revealed that the Board did not publicly disclose \"personnel\" or any other issue as the basis for closing the meeting; the Board simply appeared to approve a motion for a closed session.!® In addition, the meeting minutes of the open session [...] (5 ILCS 120/3.5(a) (West 2024)). “Village of Caseyville, Regular Board Meeting, January 21, 2026, Executive Session Minutes. 5 Letter from Michael L. Wagner, Clayborne & Wagner LLP, to Teresa Lim, Deputy Bureau Chief, Public Access Bureau, IIlinoi[s] Attorney General (February 26, 2026). 6 Village of Caseyville, Regular Board Meeting, January 21, 2026, Video File (on file with Public Access Bureau, Office of the Attorney General) (labeled \"Executive Session 1.21.26\"). The Honorable John Buckley The Honorable Kent Luebbers \n\n3) On February 4, 2026, the Public Access Bureau sent a copy of the Request for Review to the Village's mayor along with a letter asking the Board to provide a written answer to Mr. Buckley's OMA allegation, and copies of the meeting agenda, open and closed session minutes, and closed session verbatim recording for this office's confidential review. 4) On February 20, 2026, the Public Access Bureau sent a second letter to the Board, again requesting a response. This office included copies of this office's February 4, 2026, correspondence and the Request for Review. 5) On February 27, 2026, counsel for the Board furnished a written answer and the open and closed session minutes and verbatim recordings of the open and closed session portions of the January 21, 2026, meeting. 6) On March 3, 2026, this office sent a copy of the Board's answer to Mr. Buckley. Mr. Buckley replied on March 5, 2026, maintaining that the Board's closed session discussion was improper. 7) On March 20, 2026, this office extended the time for issuing a binding opinion by 21 business days, to April 21, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 8) Section 2(a) of OMA provides that \"[a]ll meetings of public bodies shall be open to the public unless excepted in subsection (c) and closed in accordance with Section 2a.\" 9) Section 2a of OMA provides that \"[t]he vote of each member on the question of holding a meeting closed to the public and a citation to the specific exception contained in Section 2 of this Act which authorizes the closing of the meeting to the public shall be publicly disclosed at the time of the vote and shall be recorded and entered into the minutes of the meeting.\" 10) The minutes of the open session portion of the Board's January 21, 2026, meeting state, with respect to the Executive Session: \"Need to discuss Personnel, will meet after Committee Meeting.\" 11) In its written answer, the Board did not dispute that it did not discuss personnel matters in the closed session. The Board stated that it discussed TIF loans that were in arrears and owed to the village. 12) The recording of the open session portion of the meeting reflects that the Board did not cite a specific exception enumerated in section 2(c) as a basis for closing its January 21, 2026, meeting. The Board also did not record and enter into the minutes the exception authorizing it to close a portion of the meeting. Accordingly, the Board violated section 2a of OMA. The Honorable John Buckley The Honorable Kent Luebbers \n\n13) The Board argued that section 2(c)(11) of OMA authorized its closed session discussion because it related to litigation. 14) Section 2(c)(11) of OMA permits a public body to close a portion of a meeting to discuss \"[l]itigation, when an action against, affecting or on behalf of the particular public body has been filed and is pending before a court or administrative tribunal, or when the public body finds that an action is probable or imminent, in which case the basis for the finding shall be recorded and entered into the minutes of the closed meeting.\" 15) If litigation is not pending, section 2(c)(11) authorizes a closed session discussion only when the public body has reasonable grounds to believe that litigation is more likely than not to be instituted or that such an occurrence is close at hand. 16) The Board failed to determine or find that litigation was probable or imminent or record and enter into the closed session minutes the basis for such a finding, as required by section 2(c)(11). 17) The Board's January 21, 2026, closed session discussion concerning the overdue TIF loans did not pertain to pending, probable, or imminent litigation. Although the Board stated it was considering litigation as an option to recover the remaining balances of the TIF loans, there is no indication that such litigation was probable or imminent. Accordingly, the Board violated section 2(a) of OMA by discussing in closed session matters outside the scope of section 2(c)(11) of OMA. In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by making publicly available the closed session verbatim recording of its January 21, 2026, meeting. As required by section 3.5(e) of OMA, the Board shall either take necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2024). The Honorable John Buckley The Honorable Kent Luebbers \n\nThis opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Buckley as defendants. See 5 ILCS 120/7.5 (West 2024). Very truly yours, KWAME RAOUL ATTORNEY GENERAL R. Douglas Rees Chief Deputy Attorney General ec; Mr. Michael L. Wagner Clayborne & Wagner LLP 525 West Main Street, Suite 105 Belleville, [llinois 62220 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-003) upon: The Honorable John Buckley, Trustee Village of Caseyville Board 909 South Main Street Caseyville, Illinois 62232 jbuckley@caseyville.org The Honorable Kent Luebbers, Mayor Village of Caseyville 909 South Main Street Caseyville, Illinois 62232 kluebbers@caseyville.org Mr. Michael L. Wagner Clayborne & Wagner LLP 525 West Main Street, Suite 105 Belleville, Illinois 62220 mwagner@claybornewagner.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on April 17, 2026. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756"}
{"id":215,"orig_master_id":19189,"dup_master_id":19416,"dup_sha256":"3ae38b60f73996111d815bb5682e7e46e21d3cfc14883f39f82ec3eaf786c66d","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":2026,"date_issued":"2026-05-15","case_number":"2026 PAC 92914","request_numbers":null,"title":"Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda","filename":"PUBLIC ACCESS OPINION 26-005 (Request for Review 2026 PAC 92914).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION 26-005 (Request for Review 2026 PAC 92914).pdf","word_count":2426,"summary":"The Village of Okawville (Village) Board of Trustees (Board) violated OMA in connection with its February 23, 2026, meeting by failing to provide the public with advance notice of its vote to terminate the employment of a Village police officer . Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service .","plain_summary":"The requester alleged that a village board voted to terminate a police officer's employment under a meeting agenda item that listed only \"Personnel issues\" without identifying the employee's category or type of personnel action. The Public Access Counselor held that this generic listing failed to satisfy the Open Meetings Act's requirement that an agenda set forth the general subject matter of anticipated final action with sufficient detail to inform the public. The board was directed to re-vote on the termination after posting an agenda that identifies the category of employee and type of personnel action.","holding":"The Board violated section 2.02(c) of the Open Meetings Act by failing to provide the public with advance notice of its final action to terminate the employment of a Village police officer.","legal_question":"Whether a public body violates the Open Meetings Act by taking final action on a matter that was not sufficiently identified on the meeting agenda.","disposition":"violation_found","primary_statute":"5 ILCS 120/3, 5 ILCS 120/1, 5 ILCS 120/2, 135 ILCS 120/2, 205 ILCS 120/2, 225 ILCS 120/2(c), 5 ILCS 120/2(b), 5 ILCS 120/7, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"OMA","foia_exemption":[],"public_body":"Village of Okawville","requesting_party":"Marver and Mr. Jasper","pac_outcome":"VIOLATION","pac_law_type":"OMA","subject_category":"meeting notice","subject_description":"The adequacy of an agenda item description regarding the termination of a public employee.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2026-Binding-PAC-Opinions/Binding%20Opinion%2026-005.pdf","sha256":"4f54b42fc7dec8c364f306c6b34851d29adc1073c1b93c39de8777a3d78f6753","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["meeting agenda","public notice","personnel termination","Open Meetings Act"],"truncated_suspect":0,"site_category":"Meeting Notices & Agendas","full_text_pre_clean":"STATE OF ILLINOIS KWAME RAOUL ATTORNEY GENERAL May 15, 2026 PUBLIC ACCESS OPINION 26-005 (Request for Review 2026 PAC 92914) OPEN MEETINGS ACT: Taking Final Action on Matter Not Sufficiently Identified on Meeting Agenda Mr. Todd Marver 317 West Main Street Carlinville, Illinois 62626 The Honorable David Jasper Village President Village of Okawville 304 North Front Street P.O. Box 483 Okawville, Illinois 62271 Dear Mr. Marver and Mr. Jasper: This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Okawville (Village) Board of Trustees (Board) violated OMA in connection with its February 23, 2026, meeting by failing to provide the public with advance notice of its vote to terminate the employment of a Village police officer. 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 * Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.|llinoisAttorneyGeneral.gov Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 2 BACKGROUND On March 12, 2026, Mr. Todd Marver submitted a Request for Review alleging that the Board violated OMA during its February 23, 2026, meeting by voting to terminate the employment of a Village police officer without setting forth the general subject matter of that final action on the agenda.' Mr. Marver included a copy of the meeting agenda, which listed \"Personnel issues\" under a \"POLICE & LIQUOR\" heading; he argued that the agenda provided insufficient notice of the termination because it did not include the category of employee or type of personnel transaction that the Board intended to act upon.? On March 27, 2026, the Public Access Bureau e-mailed’ a copy of the Request for Review to the Board together with a letter asking the Board to provide a written response to Mr. Marver's allegation, as well as copies of the agenda, minutes, and any available recordings of the February 23, 2026, meeting.” On April 7, 2026, counsel for the Board e-mailed the minutes and recordings to this office® along with a written response that acknowledged this office previously received the agenda of the February 23, 2026, meeting. On that same date, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Marver and notified him of his opportunity to reply.’ He replied the same day.® On May 11, 2026, this office extended the time for issuing a binding opinion by 21 business days, to June 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the 'E-mail from Todd Marver to Public Access [Bureau, Office of the Attorney General] (March 12, 2026). Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). 3E-mail from Todd Marver to Public Access [Bureau, Office of the Attorney General] (March 12, 2026). ‘E-mail from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General, to [David] Jasper, [Village President, Village of Okawville] (March 27, 2026). ‘Letter from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to the Honorable David Jasper, Village President, Village of Okawville (March 27, 2026), at 1-2. °E-mail from Kiersten R. Stensland, Paralegal, Baker Sterchi Cowden & Rice LLC, to [Benjamin] Silver, [Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 7, 2026). Letter from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Todd Marver (April 7, 2026). 8E-mail from Todd Marver to [Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 7, 2026). Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 3 Attorney General may properly issue a binding opinion with respect to this matter.” ANALYSIS The intent of OMA is \"to protect the citizen's right to know[.|\" 5 ILCS 120/1 (West 2024). Thus, the General Assembly \"declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2024). Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2024)) provides that \"[a]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting.\" Further, section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2024)) provides that \"{a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis added.) The Board's February 23, 2026, meeting agenda listed \"Personnel issues\" under a heading for \"POLICE & LIQUOR[.]\"'® In its response to this office, the Board argued that \"the public was aware that the Village Board was to consider an employ [sic] or personnel matter that fell under the Police Department. (There are no Liquor employees in the Village.)[.]\"'! The Board further argued that it was not \"necessary under the Open Meetings Act to describe which department, which employee, nor if it was an adverse action.\"!* The Board cited In re Foxfield Subdivision v, Village of Campton Hills, 396 Ill. App. 3d 989 (2009), in support of its argument that the Board's February 23, 2026, agenda included sufficient description of its final action terminating a police officer's employment. In Foxfield, the Illinois Appellate Court analyzed whether the agenda item \"Discussion and Consideration of potential annexation of property’ provided sufficient advance notice that a village board would take action at a special meeting to annex a property. Foxfield, Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office oft he Attorney General, to Todd Marver and David B. Schneidewind, Baker Sterchi Cowden & Rice LLC (May 11, 2026). 'Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). \"Letter from David B. Schneidewind, Attorney for the Village of Okawville, Baker Sterchi Cowden & Rice, LLC, to Benjamin J. Silver, Supervising Attorney, Office of the Attorney General, State of Illinois, Public Access Bureau (April 7, 2026), at 2. Letter from David B. Schneidewind, Attorney for the Village of Okawville, Baker Sterchi Cowden & Rice, LLC, to Benjamin J. Silver, Supervising Attorney, Office of the Attorney General, State of Illinois, Public Access Bureau (April 7, 2026), at 2. Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 4 396 Ill. App. 3d at 995-97. The version of section 2.02(a) of OMA! that was in effect at the time of the meeting provided, in relevant part, that \"[p]ublic notice of any special meeting * * * shall be given at least 48 hours before such meeting, which notice shall also include the agenda forthe special * * * meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda.\" (Emphasis added.) Interpreting this earlier version of section 2.02, the court noted that \"loJur Open Meetings Act does not require that an agenda be specifically detailed or that it be tailored to reach those specific individuals whose private interests are most likely to be affected by the actions of the public body. It requires only that the action taken at a special meeting be germane to the agenda listed in the notice.\"'* Accordingly, the court concluded that a village board provided sufficient advance notice under the plain language of section 2.02(a) [...] inois, Public Access Bureau (April 7, 2026), at 2. 205 ILCS 120/2a (West 2024). *!Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). 225 ILCS 120/2(c)(1) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. *3The exceptions that permit public bodies to close meetings to the public \"are in derogation of the requirement that public bodies meet in the oPpp en, and therefore, the excepPptions are to be strictly construed, extending only to subjects clearly within their scope.\" 5 ILCS 120/2(b) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 7 FINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 12, 2026, Mr. Todd Marver submitted a Request for Review alleging that during its February 23, 2026, meeting, the Village of Okawville Board of Trustees voted to terminate the employment of a Village police officer without listing the general subject matter of that action on its meeting agenda. Mr. Marver's Request for Review, which included a copy of the meeting agenda, was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)). 2) On March 27, 2026, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the agenda, minutes, and any recordings of the Board's February 23, 2026, meeting, and a written response to the allegations in Mr. Marver's Request for Review. 3) On April 7, 2026, the Board provided this office with a written response to the allegations and the requested minutes and recordings; the response acknowledged that this office previously received a copy of the meeting agenda. 4) On that same date, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Marver and notified him of his opportunity to reply. He replied the same day. 5) On May 11, 2026, this office extended the time for issuing a binding opinion by 21 business days, to June 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.02(c) of OMA requires that a meeting agenda \"set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" This provision requires public bodies to include on agendas sufficient detail to notify members of the public of the types of final actions that public bodies anticipate taking at their meetings. 7) The term \"general subject matter\" is ambiguous. The Senate debate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added section 2.02(c) to OMA, indicates that the General Assembly intended this provision to ensure that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipated taking at their meetings. By choosing the language \"general subject matter,\" the General Assembly signified that it intended a public body to provide the public with more detailed advance notice of its upcoming actions than the previous version of OMA, which required only that an action be \"germane to a subject on the agenda.\" Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 8 8) The Board's February 23, 2026, meeting agenda listed \"Personnel issues\" under a heading for \"POLICE & LIQUOR.\" The Board's meeting agenda also included a reference to holding a closed session to discuss \"personnel\" under the exception in section 2(c)(1) of OMA. 9) During the meeting, the Board voted to terminate the employment of a Village police officer. 10) The meeting agenda did not set forth the general subject matter of the Board's vote to terminate the employment of a Village police officer. The agenda item identified neither the category of employee at issue nor the type of personnel transaction to be considered. Because a member of the public who read the agenda before the meeting would not have generally known what the Board would be acting upon, the Board failed to provide sufficient advance notice for the termination of a police officer's employment as required by section AOAC), In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by re-voting on the termination of the employee after posting a meeting agenda that provides sufficient detail to identify the general subject of that final action. Ata minimum, the relevant agenda item should identify the category of employee and the type of personnel action to be considered. As required by section 3.5(e) of OMA, the Board shall either take the necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2024). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Todd Marver as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: (Pry We R. Douglas Rees Chief Deputy Attorney General Mr. Todd Marver The Honorable David Jasper May 15, 2026 Page 9 oc Mr. David B. Schneidewind Baker Sterchi Cowden & Rice LLC 23 Public Square, Suite 400 Belleville, Illinois 62220-1627 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-005) upon: Mr. Todd Marver 317 West Main Street Carlinville, Illinois 62626 tdmarve@outlook.com The Honorable David Jasper Village President Village of Okawville 304 North Front Street P.O. Box 483 Okawville, Illinois 62271 villageofokawville@gmail.com Mr. David B. Schneidewind Baker Sterchi Cowden & Rice LLC 23 Public Square, Suite 400 Belleville, Illinois 62220-1627 david.schneidewind@bakersterchi.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 15, 2026. ie ites. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Village of Okawville Board of Trustees voted to fire a police officer during a meeting, but their agenda only listed \"Personnel issues\" as a topic. The Attorney General ruled that this was too vague and violated the Open Meetings Act, which requires public bodies to provide clear notice of the specific actions they intend to take so the public knows what is being discussed.","card_headline":"A village board's agenda description of an employee termination","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2026-pac-92914/","full_text":"This binding opinion is issued pursuant to section 3.5(e) of the Open Meetings Act (OMA) (5 ILCS 120/3.5(e) (West 2024)). For the reasons discussed below, this office concludes that the Village of Okawville (Village) Board of Trustees (Board) violated OMA in connection with its February 23, 2026, meeting by failing to provide the public with advance notice of its vote to terminate the employment of a Village police officer. 500 South 2nd Street 115 South LaSalle Street 1745 Innovation Drive, Suite C Springfield, Illinois 62701 Chicago, Illinois 60603 Carbondale, Illinois 62903 (217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 * Fax: (618) 529-6416 Individuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service. www.|llinoisAttorneyGeneral.gov Mr. Todd Marver The Honorable David Jasper \n\nBACKGROUND On March 12, 2026, Mr. Todd Marver submitted a Request for Review alleging that the Board violated OMA during its February 23, 2026, meeting by voting to terminate the employment of a Village police officer without setting forth the general subject matter of that final action on the agenda.' Mr. Marver included a copy of the meeting agenda, which listed \"Personnel issues\" under a \"POLICE & LIQUOR\" heading; he argued that the agenda provided insufficient notice of the termination because it did not include the category of employee or type of personnel transaction that the Board intended to act upon.? On March 27, 2026, the Public Access Bureau e-mailed’ a copy of the Request for Review to the Board together with a letter asking the Board to provide a written response to Mr. Marver's allegation, as well as copies of the agenda, minutes, and any available recordings of the February 23, 2026, meeting.” On April 7, 2026, counsel for the Board e-mailed the minutes and recordings to this office® along with a written response that acknowledged this office previously received the agenda of the February 23, 2026, meeting. On that same date, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Marver and notified him of his opportunity to reply.’ He replied the same day.® On May 11, 2026, this office extended the time for issuing a binding opinion by 21 business days, to June 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the 'E-mail from Todd Marver to Public Access [Bureau, Office of the Attorney General] (March 12, 2026). Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). 3E-mail from Todd Marver to Public Access [Bureau, Office of the Attorney General] (March 12, 2026). ‘E-mail from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Illinois Attorney General, to [David] Jasper, [Village President, Village of Okawville] (March 27, 2026). ‘Letter from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to the Honorable David Jasper, Village President, Village of Okawville (March 27, 2026), at 1-2. °E-mail from Kiersten R. Stensland, Paralegal, Baker Sterchi Cowden & Rice LLC, to [Benjamin] Silver, [Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 7, 2026). Letter from Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General, to Todd Marver (April 7, 2026). 8E-mail from Todd Marver to [Benjamin Silver, Supervising Attorney, Public Access Bureau, Office of the Attorney General] (April 7, 2026). Mr. Todd Marver The Honorable David Jasper \n\nAttorney General may properly issue a binding opinion with respect to this matter.” ANALYSIS The intent of OMA is \"to protect the citizen's right to know[.|\" 5 ILCS 120/1 (West 2024). Thus, the General Assembly \"declares it to be the public policy of this State that its citizens shall be given advance notice of and the right to attend all meetings at which any business of a public body is discussed or acted upon in any way.\" 5 ILCS 120/1 (West 2024). Section 2.02(a) of OMA (5 ILCS 120/2.02(a) (West 2024)) provides that \"[a]n agenda for each regular meeting shall be posted at the principal office of the public body and at the location where the meeting is to be held at least 48 hours in advance of the holding of the meeting.\" Further, section 2.02(c) of OMA (5 ILCS 120/2.02(c) (West 2024)) provides that \"{a]ny agenda required under this Section shall set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" (Emphasis added.) The Board's February 23, 2026, meeting agenda listed \"Personnel issues\" under a heading for \"POLICE & LIQUOR[.]\"'® In its response to this office, the Board argued that \"the public was aware that the Village Board was to consider an employ [sic] or personnel matter that fell under the Police Department. (There are no Liquor employees in the Village.)[.]\"'! The Board further argued that it was not \"necessary under the Open Meetings Act to describe which department, which employee, nor if it was an adverse action.\"!* The Board cited In re Foxfield Subdivision v, Village of Campton Hills, 396 Ill. App. 3d 989 (2009), in support of its argument that the Board's February 23, 2026, agenda included sufficient description of its final action terminating a police officer's employment. In Foxfield, the Illinois Appellate Court analyzed whether the agenda item \"Discussion and Consideration of potential annexation of property’ provided sufficient advance notice that a village board would take action at a special meeting to annex a property. Foxfield, Letter from Benjamin J. Silver, Supervising Attorney, Public Access Bureau, Office oft he Attorney General, to Todd Marver and David B. Schneidewind, Baker Sterchi Cowden & Rice LLC (May 11, 2026). 'Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). \"Letter from David B. Schneidewind, Attorney for the Village of Okawville, Baker Sterchi Cowden & Rice, LLC, to Benjamin J. Silver, Supervising Attorney, Office of the Attorney General, State of Illinois, Public Access Bureau (April 7, 2026), at 2. Letter from David B. Schneidewind, Attorney for the Village of Okawville, Baker Sterchi Cowden & Rice, LLC, to Benjamin J. Silver, Supervising Attorney, Office of the Attorney General, State of Illinois, Public Access Bureau (April 7, 2026), at 2. Mr. Todd Marver The Honorable David Jasper \n\n396 Ill. App. 3d at 995-97. The version of section 2.02(a) of OMA! that was in effect at the time of the meeting provided, in relevant part, that \"[p]ublic notice of any special meeting * * * shall be given at least 48 hours before such meeting, which notice shall also include the agenda forthe special * * * meeting, but the validity of any action taken by the public body which is germane to a subject on the agenda shall not be affected by other errors or omissions in the agenda.\" (Emphasis added.) Interpreting this earlier version of section 2.02, the court noted that \"loJur Open Meetings Act does not require that an agenda be specifically detailed or that it be tailored to reach those specific individuals whose private interests are most likely to be affected by the actions of the public body. It requires only that the action taken at a special meeting be germane to the agenda listed in the notice.\"'* Accordingly, the court concluded that a village board provided sufficient advance notice under the plain language of section 2.02(a) [...] inois, Public Access Bureau (April 7, 2026), at 2. 205 ILCS 120/2a (West 2024). *!Village of Okawville, unnumbered Agenda Item, Village Board Meeting (February 23, 2026). 225 ILCS 120/2(c)(1) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. *3 The exceptions that permit public bodies to close meetings to the public \"are in derogation of the requirement that public bodies meet in the oPpp en, and therefore, the excepPptions are to be strictly construed, extending only to subjects clearly within their scope.\" 5 ILCS 120/2(b) (West 2024), as amended by Public Act 104-438, effective January 1, 2026. Mr. Todd Marver The Honorable David Jasper \n\nFINDINGS AND CONCLUSIONS After full examination and giving due consideration to the information submitted, the Public Access Counselor's review, and the applicable law, the Attorney General finds that: 1) On March 12, 2026, Mr. Todd Marver submitted a Request for Review alleging that during its February 23, 2026, meeting, the Village of Okawville Board of Trustees voted to terminate the employment of a Village police officer without listing the general subject matter of that action on its meeting agenda. Mr. Marver's Request for Review, which included a copy of the meeting agenda, was timely filed and otherwise complies with the requirements of section 3.5(a) of OMA (5 ILCS 120/3.5(a) (West 2024)). 2) On March 27, 2026, the Public Access Bureau sent a copy of the Request for Review to the Board. The Public Access Bureau also sent the Board a letter requesting copies of the agenda, minutes, and any recordings of the Board's February 23, 2026, meeting, and a written response to the allegations in Mr. Marver's Request for Review. 3) On April 7, 2026, the Board provided this office with a written response to the allegations and the requested minutes and recordings; the response acknowledged that this office previously received a copy of the meeting agenda. 4) On that same date, the Public Access Bureau forwarded a copy of the Board's written response to Mr. Marver and notified him of his opportunity to reply. He replied the same day. 5) On May 11, 2026, this office extended the time for issuing a binding opinion by 21 business days, to June 10, 2026, pursuant to section 3.5(e) of OMA. Accordingly, the Attorney General may properly issue a binding opinion with respect to this matter. 6) Section 2.02(c) of OMA requires that a meeting agenda \"set forth the general subject matter of any resolution or ordinance that will be the subject of final action at the meeting.\" This provision requires public bodies to include on agendas sufficient detail to notify members of the public of the types of final actions that public bodies anticipate taking at their meetings. 7) The term \"general subject matter\" is ambiguous. The Senate debate on House Bill No. 4687, which as Public Act 97-827, effective January 1, 2013, added section 2.02(c) to OMA, indicates that the General Assembly intended this provision to ensure that agendas provide sufficient detail to notify members of the public of the types of final actions public bodies anticipated taking at their meetings. By choosing the language \"general subject matter,\" the General Assembly signified that it intended a public body to provide the public with more detailed advance notice of its upcoming actions than the previous version of OMA, which required only that an action be \"germane to a subject on the agenda.\" Mr. Todd Marver The Honorable David Jasper \n\n8) The Board's February 23, 2026, meeting agenda listed \"Personnel issues\" under a heading for \"POLICE & LIQUOR.\" The Board's meeting agenda also included a reference to holding a closed session to discuss \"personnel\" under the exception in section 2(c)(1) of OMA. 9) During the meeting, the Board voted to terminate the employment of a Village police officer. 10) The meeting agenda did not set forth the general subject matter of the Board's vote to terminate the employment of a Village police officer. The agenda item identified neither the category of employee at issue nor the type of personnel transaction to be considered. Because a member of the public who read the agenda before the meeting would not have generally known what the Board would be acting upon, the Board failed to provide sufficient advance notice for the termination of a police officer's employment as required by section AOAC), In accordance with these findings of fact and conclusions of law, the Board is directed to remedy this violation by re-voting on the termination of the employee after posting a meeting agenda that provides sufficient detail to identify the general subject of that final action. Ata minimum, the relevant agenda item should identify the category of employee and the type of personnel action to be considered. As required by section 3.5(e) of OMA, the Board shall either take the necessary action as soon as practical to comply with the directives of this opinion or shall initiate administrative review under section 7.5 of OMA. 5 ILCS 120/7.5 (West 2024). This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2024). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review with the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois and Mr. Todd Marver as defendants. See 5 ILCS 120/7.5 (West 2024). Sincerely, KWAME RAOUL ATTORNEY GENERAL By: (Pry We R. Douglas Rees Chief Deputy Attorney General Mr. Todd Marver The Honorable David Jasper \n\noc Mr. David B. Schneidewind Baker Sterchi Cowden & Rice LLC 23 Public Square, Suite 400 Belleville, Illinois 62220-1627 CERTIFICATE OF SERVICE Steve Silverman, Deputy Division Chief, Public Access & Opinions Division, Chicago, hereby certifies that he has served a copy of the foregoing Binding Opinion (Public Access Opinion 26-005) upon: Mr. Todd Marver 317 West Main Street Carlinville, Illinois 62626 tdmarve@outlook.com The Honorable David Jasper Village President Village of Okawville 304 North Front Street P.O. Box 483 Okawville, Illinois 62271 villageofokawville@gmail.com Mr. David B. Schneidewind Baker Sterchi Cowden & Rice LLC 23 Public Square, Suite 400 Belleville, Illinois 62220-1627 david.schneidewind@bakersterchi.com by causing a true copy thereof to be sent electronically to the addresses as listed above and by causing to be mailed a true copy thereof in correctly addressed, prepaid envelopes to be deposited in the United States mail at Chicago, Illinois on May 15, 2026. ie ites. Steve Silverman Deputy Division Chief Steve Silverman Deputy Division Chief Public Access & Opinions Division, Chicago Office of the Attorney General 115 South LaSalle Street Chicago, Illinois 60603 (312) 814-6756"}
{"id":216,"orig_master_id":19417,"dup_master_id":19190,"dup_sha256":"fe93e724ccd4da8854dc3c2f9855807ddbe6f6da32ad54fc7121402c65992915","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-02-23","case_number":"2010 PAC 5688","request_numbers":null,"title":"Duty of Public Body to Furnish Copies","filename":"PUBLIC ACCESS OPINION No. 10-001  (Request for Review 2010 PAC 5688).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 10-001  (Request for Review 2010 PAC 5688).pdf","word_count":1551,"summary":"This document is a Public Access Opinion regarding a Freedom of Information Act request made by Edward Fleck to the Village of Wapella for a copy of his water meter card. The Village responded that they are only obligated to provide the documents for inspection and photocopying, not to furnish copies.","plain_summary":"The requester, a member of the public, sought copies of his water meter readings, and a village refused to provide copies at all, insisting it was only obligated to make records available for inspection during a narrow one-hour window. The Public Access Counselor held that FOIA's plain language requires a public body to provide copies of nonexempt records upon request and does not allow a public body to limit requesters to on-site inspection alone. The village was directed to immediately provide copies of the requested records, subject to permissible fees.","holding":"The Village of Wapella violated FOIA by refusing to provide copies of requested public records, as Section 3(b) mandates that public bodies must furnish copies when requested.","legal_question":"Whether the Village of Wapella is obligated to provide copies of documents requested under the Freedom of Information Act.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3(b), 5 ILCS 140/11, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Wapella c","requesting_party":"Justice","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The Village of Wapella refused to provide physical copies of water meter records to a requester, asserting that it was only obligated to allow inspection.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2010-Binding-PAC-Opinions/2010-001.pdf","sha256":"1ab824747811ecc05819d30749b4f37632eda0adfa60406f44465238bed5b84e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["copies of records","inspection of records","FOIA request","public records access"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNE\\' (;ENERAL March 29, 2010 PUBLIC ACCESS OPINION No. 10-001 (Request for Review 2010 PAC 5688) FREEDOM OF INFORMATION ACT: Duty of Public Body to Furnish Copies Jeff Justice Village Attorney Village of Wapella c/o Shade & Justice 132 South Water Street 515 Millikin Court Decatur, Illinois 62523 Dear Mr. Justice: This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (hereinafter \"FOIA\") (5 ILCS 140/9.5(f)). Findings of Fact On January 6, 20 I0, Edward Fleck (\"Requester\") sent a letter to the Village of Wapella (\"Wapella\") requesting a copy of the Requester's \"water meter card\" showing all readings from June 2009 through December 2009. In a letter dated January 12, 2010, Vernon Meadows, Village President of Wapella, responded that Wapella required five additional business days to gather the requested information. In addition, Mr. Meadows stated: Please be advised that there is no obligation on the part of the Village to make copies for you. The Village is only obligated to make the documents available for inspection and photocopying. These documents will be available for inspection and photocopying at the Wapella Village Hall. (Emphasis added.) 500 South Second Street, Springfield, Illinois 62706 • (217) 7t\\2-1090 • Try (tl77) 1544-5461 • Fax: (217) 7t\\2-7046 lOO West Randolph Street, Chicago, IIlinnis 60601 • (312) 1514-3000 • Try (HOO) 964-30J3 • F~x: (,\\12) 1514-.3806 1001 East i'vlain, Carbondale, 11linois 62901 • (618) 529-6400 • 'ITY: (877) 675-9339 • Fax: (618) 529-6416 - - ------------- Jeff Justice Village of Wapella March 29, 2010 Page 2 On January 19, 2010, Mr. Meadows sent a second letter to the Requester stating that the Requester's FOIA request was denied. He again reiterated that \"[t]here is no obligation on the part of the Village to make copies for you. The Village is only obligated to make the document available for inspection and photocopying.\" Mr. Meadows further stated that the requested documents would be available for inspection and copying by the Requester on Friday, January 22, 2010, between 9 am and 10 am at the Wapella Village Hall. The Requester filed a Request for Review regarding his January 6, 2010, FOIA request to Wapella, which was received by the Public Access Counselor (\"the PAC\") on February 3,2010. The Requester stated that Wapella was not justified in requesting an additional 5 days for response because there are \"no more than 300 water meter cards for the whole village, contained in three 2-ring binders[.]\" The Requester also stated that he was not allowed to inspect his original water meter card, instead being shown a copy of his card, which, according to the Requester, was more difficult for him to read. Ultimately, the Requester copied his meter card during the limited time that the documents were available for inspection. On February 16, 2010, we sent a letter to Mr. Meadows notifying Wapella of the receipt of the Requester's Request for Review and advising that further inquiry was necessary to determine whether a violation ofFOIA had occurred. Pursuant to Section 9.5(c) ofFOIA (5 ILCS 140/9.5(c)), we requested that Wapella respond to the allegations included in the Request for Review within 7 working days after receipt. On February 24, 2010, Jeff Justice, an attorney representing Wapella, sent a letter to the PAC responding to the allegations set forth in the Request for Review. In his letter, Mr. Justice stated that Wapella had requested a 5-day extension to the FOIA request because Wapella has no full-time or part-time administrative or secretarial personnel. With respect to the allegation that the Requester was not allowed to inspect his original water meter card, Mr. Justice responded that because the Requester never specified that he wanted to view original documents, his request was fulfilled by producing a copy for inspection. Further, Mr. Justice stated that due to the large number of FOIA requests Wapella receives and its lack of support staff, Wapella \"exercised [its] rights under paragraph 3 of [FOIA] to make documents available for inspection and photocopying on a machine provided by the village in the same room.\" Applicable Statutes The authority of the Public Access Counselor to issue a binding opinion is set out in Section 9.5 of the Freedom of Information Act (5 ILCS 140/9.5). Pursuant to Section 9.5, a person whose request to inspect or copy a public record has been denied by a public body may, not later than 60 days after the date of the final denial, file a written request for review with the Public Access Counselor established in the Office of the Jeff Justice Village of Wapella March 29,2010 Page 3 Attorney General. If the Public Access Counselor determines that the alleged violation warrants further review, the Attorney General shall examine the issues and the records, shall make findings of fact and conclusions of law, and shall issue to the requester and the public body an opinion in response to the request for review. The opinion shall be binding upon both the requester and the public body, subject to administrative review. We find that the Request for Review was timely filed and otherwise complies with the requirements of Section 9.5 ofFOIA. With respect to the specific issue raised in this Request for Review, Section 3(b) of FOIA (5 ILCS 140/3(b)) provides as follows: (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) When the language of a statute is clear and unambiguous, it must be given effect as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The language of Section 3(b) is clear and unambiguous: it is the duty of a public body, when requested and upon payment of applicable fees, if any, to provide the requester with a copy of any record that is not exempt from disclosure under FOIA. Section 3(b) does not provide a public body with the option to decline to provide copies when copies are requested. Although a public body may offer the requester an opportunity to inspect and make copies if he or she elects to do so, it may not properly refuse to provide copies if requested to do so. Conclusions of Law Wapella has taken the position with respect to this FOIA request and several others' that it is under no obligation to provide copies of public documents to requesters. It has I We have received numerous requests for review of FOIA responses from Wapella in which the village refused to furnish copies of public records to requesters and, instead, informed the requesters that they could view documents and make copies between 9:00 am and 10:00 am on a specified date. Wapella responded in this way, for example, to FOIA requests dated January 3 and 6, 2010, seeking copies of village bank statements (2010 PAC 5490); January 5, 20 I0, seeking copies of receipts and deposit records for specific village payments as well as records relating to pubIicly-owned materials discarded as scrap (2010 PAC 5496); January 4, 20 I0, seeking a copy of the village's year end financial report (20 to PAC 5621); January 20 and February 3, 20 I0, seeking water rate reports, a water meter card and account history for the requester, the treasurer's check register and specific invoices to the village (20 10 PAC 5881); and Jeff Justice Village of Wapella March 29, 2010 Page 4 asserted that FOIA provides public bodies the option of simply making public records available for inspection and copying. Wapella's interpretation is unsupported by law. To the contrary, Section 3(b) of FOIA clearly requires public bodies to furnish copies of 2 records in response to requests therefore. We find and conclude that the Village of Wapella has violated Section 3(b) of FOIA by refusing to provide copies of public records to Edward Fleck upon his request. In accordance with this Opinion, the Village of Wapella is directed to immediately provide copies of the records requested by Mr. Fleck, subject only to the payment of any fee properly imposed pursuant to FOIA. Under Section 9.5(f) of FOIA, the Village of Wapella shall either take necessary action immediately to comply with this opinion or shall initiate administrative review under Section 11.5 of FOIA (5 ILCS 140/11.5). This opInIOn shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law, 735 ILCS 5/Art. III. Sincerely, LISA MADIGAN By: Cara Smith Public Access Counselor cc: Edward Fleck 13 Thomas Court Wapella, IL 61777 February J2, 2010, seeking one page of the water deposit receipt report for specific months (20 I0 PAC 6051). 2 More recently, Wapella has responded to FOJA requests by refusing to furnish copies of public records and informing requesters that the responsive records are available for viewing on the village website. (Wapella response to February 23, 2010 FOJA request, 2010 PAC 6 J10; Wapella response to March 7, 20 I0 FOIA request, 20 I0 PAC 6335). This approach also is unsupported by the law and violates Section 3(b)'s express requirement that public bodies furnish copies ofrecords when requesters seek copies.","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A resident asked the Village of Wapella for copies of his water meter records, but the Village told him he could only come to the office to look at them himself. The Attorney General's office ruled that the Village was wrong and that FOIA requires public bodies to provide copies of records when a person asks for them.","card_headline":"A village's water meter records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2010-pac-5688/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (hereinafter \"FOIA\") (5 ILCS 140/9.5(f)). Findings of Fact On January 6, 20 I0, Edward Fleck (\"Requester\") sent a letter to the Village of Wapella (\"Wapella\") requesting a copy of the Requester's \"water meter card\" showing all readings from June 2009 through December 2009. In a letter dated January 12, 2010, Vernon Meadows, Village President of Wapella, responded that Wapella required five additional business days to gather the requested information. In addition, Mr. Meadows stated: Please be advised that there is no obligation on the part of the Village to make copies for you. The Village is only obligated to make the documents available for inspection and photocopying. These documents will be available for inspection and photocopying at the Wape\n\nof Wapella \n\nOn January 19, 2010, Mr. Meadows sent a second letter to the Requester stating that the Requester's FOIA request was denied. He again reiterated that \"[t]here is no obligation on the part of the Village to make copies for you. The Village is only obligated to make the document available for inspection and photocopying.\" Mr. Meadows further stated that the requested documents would be available for inspection and copying by the Requester on Friday, January 22, 2010, between 9 am and 10 am at the Wapella Village Hall. The Requester filed a Request for Review regarding his January 6, 2010, FOIA request to Wapella, which was received by the Public Access Counselor (\"the PAC\") on February 3,2010. The Requester stated that Wapella was not justified in requesting an additional 5 days for response because there are \"no more than 300 water meter cards for the whole village, contained in three 2-ring binders[.]\" The Requester also stated that he was not allowed to inspect his original water meter card, instead being shown a copy of his card, which, according to the Requester, was more difficult for him to read. Ultimately, the Requester copied his meter card during the limited time that the documents were available for inspection. On February 16, 2010, we sent a letter to Mr. Meadows notifying Wapella of the receipt of the Requester's Request for Review and advising that further inquiry was necessary to determine whether a violation ofFOIA had occurred. Pursuant to Section 9.5(c) ofFOIA (5 ILCS 140/9.5(c)), we requested that Wapella respond to the allegations included in the Request for Review within 7 working days after receipt. On February 24, 2010, Jeff Justice, an attorney representing Wapella, sent a letter to the PAC responding to the allegations set forth in the Request for Review. In his letter, Mr. Justice stated that Wapella had requested a 5-day extension to the FOIA request because Wapella has no full-time or part-time administrative or secretarial personnel. With respect to the allegation that the Requester was not allowed to inspect his original water meter card, Mr. Justice responded that because the Requester never specified that he wanted to view original documents, his request was fulfilled by producing a copy for inspection. Further, Mr. Justice stated that due to the large number of FOIA requests Wapella receives and its lack of support staff, Wapella \"exercised [its] rights under paragraph 3 of [FOIA] to make documents available for inspection and photocopying on a machine provided by the village in the same room.\" Applicable Statutes The authority of the Public Access Counselor to issue a binding opinion is set out in Section 9.5 of the Freedom of Information Act (5 ILCS 140/9.5). Pursuant to Section 9.5, a person whose request to inspect or copy a public record has been denied by a public body may, not later than 60 days after the date of the final denial, file a written request for review with the Public Access Counselor established in the Office of the Jeff Justice Village of Wapella \n\nAttorney General. If the Public Access Counselor determines that the alleged violation warrants further review, the Attorney General shall examine the issues and the records, shall make findings of fact and conclusions of law, and shall issue to the requester and the public body an opinion in response to the request for review. The opinion shall be binding upon both the requester and the public body, subject to administrative review. We find that the Request for Review was timely filed and otherwise complies with the requirements of Section 9.5 ofFOIA. With respect to the specific issue raised in this Request for Review, Section 3(b) of FOIA (5 ILCS 140/3(b)) provides as follows: (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) When the language of a statute is clear and unambiguous, it must be given effect as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). The language of Section 3(b) is clear and unambiguous: it is the duty of a public body, when requested and upon payment of applicable fees, if any, to provide the requester with a copy of any record that is not exempt from disclosure under FOIA. Section 3(b) does not provide a public body with the option to decline to provide copies when copies are requested. Although a public body may offer the requester an opportunity to inspect and make copies if he or she elects to do so, it may not properly refuse to provide copies if requested to do so. Conclusions of Law Wapella has taken the position with respect to this FOIA request and several others' that it is under no obligation to provide copies of public documents to requesters. It has I We have received numerous requests for review of FOIA responses from Wapella in which the village refused to furnish copies of public records to requesters and, instead, informed the requesters that they could view documents and make copies between 9:00 am and 10:00 am on a specified date. Wapella responded in this way, for example, to FOIA requests dated January 3 and 6, 2010, seeking copies of village bank statements (2010 PAC 5490); January 5, 20 I0, seeking copies of receipts and deposit records for specific village payments as well as records relating to pubIicly-owned materials discarded as scrap (2010 PAC 5496); January 4, 20 I0, seeking a copy of the village's year end financial report (20 to PAC 5621); January 20 and February 3, 20 I0, seeking water rate reports, a water meter card and account history for the requester, the treasurer's check register and specific invoices to the village (20 10 PAC 5881); and Jeff Justice Village of Wapella \n\nasserted that FOIA provides public bodies the option of simply making public records available for inspection and copying. Wapella's interpretation is unsupported by law. To the contrary, Section 3(b) of FOIA clearly requires public bodies to furnish copies of 2 records in response to requests therefore. We find and conclude that the Village of Wapella has violated Section 3(b) of FOIA by refusing to provide copies of public records to Edward Fleck upon his request. In accordance with this Opinion, the Village of Wapella is directed to immediately provide copies of the records requested by Mr. Fleck, subject only to the payment of any fee properly imposed pursuant to FOIA. Under Section 9.5(f) of FOIA, the Village of Wapella shall either take necessary action immediately to comply with this opinion or shall initiate administrative review under Section 11.5 of FOIA (5 ILCS 140/11.5). This opInIOn shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law, 735 ILCS 5/Art. III. Sincerely, LISA MADIGAN By: Cara Smith Public Access Counselor cc: Edward Fleck 13 Thomas Court Wapella, IL 61777 February J2, 2010, seeking one page of the water deposit receipt report for specific months (20 I0 PAC 6051). 2 More recently, Wapella has responded to FOJA requests by refusing to furnish copies of public records and informing requesters that the responsive records are available for viewing on the village website. (Wapella response to February 23, 2010 FOJA request, 2010 PAC 6 J10; Wapella response to March 7, 20 I0 FOIA request, 20 I0 PAC 6335). This approach also is unsupported by the law and violates Section 3(b)'s express requirement that public bodies furnish copies ofrecords when requesters seek copies."}
{"id":217,"orig_master_id":19191,"dup_master_id":19420,"dup_sha256":"a6797b4c6bf8c365fb1a44027c2f35c025828aa127e40da520ea2ea51d92bb93","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-04-27","case_number":"2010 PAC 5745","request_numbers":null,"title":"No Authority for Public Body to Charge for Copies for Its Files","filename":"PUBLIC ACCESS OPINION No. 10-002 (Request for Review 2010 PAC 5745).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION No. 10-002 (Request for Review 2010 PAC 5745).pdf","word_count":2144,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a request for review under the Freedom of Information Act concerning the City of Kankakee's authority to charge for copies of public records.","plain_summary":"The requester sought copies of certified payroll and contract records for numerous city contractors, and the city charged him for a second, duplicate set of copies it said it needed to retain in its own FOIA files. The Public Access Counselor held that FOIA requires a public body to bear the cost of maintaining its own recordkeeping copies and does not authorize shifting that cost to the requester as a copying fee. The city was directed to provide the records for a single copying fee or refund the portion of fees attributable to the city's retained duplicate.","holding":"The City of Kankakee has no authority to charge for copies of its files.","legal_question":"Does the City of Kankakee have the authority to charge for copies of public records under the Freedom of Information Act?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140/6, 5 ILCS 140/1, 5 ILCS 140/11, 735 ILCS 5","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Kankakee","requesting_party":"Power","pac_outcome":"Improperly charged copying fees","pac_law_type":null,"subject_category":"fees","subject_description":"The City of Kankakee attempted to charge a FOIA requester for the cost of producing duplicate copies of records for the City's own retention.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2010-Binding-PAC-Opinions/2010-002.pdf","sha256":"903e915d3f1fb58e20af1839eaf6848ebe867aa2c9b2f2d4464e26eef457e61c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["fees","copying costs","FOIA request","public records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan April 27, 2010 ATTORNEY GENERAL PUBLIC ACCESS OPINION No. 10-002 (Request for Review 2010 PAC 5745) FREEDOM OF INFORMATION ACT: No Authority for Public Body to Charge for Copies for Its Files Mr. L. Patrick Power _ Assistant City Attorney City of Kankakee 304 South Indiana Avenue Kankakee, Illinois 60901-3904 Dear Mr. Power: This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (hereinafter FOIA) (5 ILCS 140/9.5(f), added by Public Act Public Act 96-542, effective January 1, 2010). | Findings of Fact On January 6, 2010, Mr. Terry Taylor submitted 15 separate FOIA requests to the City of Kankakee (City). Each FOIA request sought “[c]Jopies of certified payroll from May 1, 2008 to April 30, 2009” and “[c]lopies of contracts from May 1, 2008 to April 30, 2009” for a specified contractor.' On J anuary 8, 2010, Assistant City Attorney L. Patrick Power sent a letter to Mr. Taylor stating that the City would require “an additional five (5) days to respond” to the FOJA Requests. : On January 14, 2010, Mr. Power sent a second letter to Mr. Taylor, stating, in part: ' The 15 contractors included Tri-City Construction; Hoerr Construction, Inc.; Sanchez Environmental; Robert F. Smith Construction; Rick Jones Construction; Lead Abatement Associate; John Burns Construction; Gibson Custom Homes, Inc.; Eubanks Sewer Service; Einfeldt Construction, Inc.; Calhoun Construction; Bittman Tree Service; Ace Remodeling; Pat Hatting; and Pommier Construction Co. 500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © ‘ITY: (800) 964-3013 ¢ Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 ¢ (618) 529-6400 © TTY: (877) 675-9339 © Fax: (618) 529-6416 *Gap— a Mr. L. Patrick Power | City of Kankakee April 27, 2010 | Page 2 , | . | With regard to your request for copies of contracts, as well as statements of non- employee compensation, said copies are ready for you to pickup at the City of Kankakee Administration Building, Adjudication Dept. 2\" Floor. .. Enclosed is an Invoice from the City of Kankakee Community Development Agency for the above referred to copies. |Also enclosed is a second invoice for reproducing copies that need to be retained in the FOIA Department. Please bring a check with you when you pickup the above referred to copies.” (Emphasis added.) Pursuant to Section 9.5(a) of FOIA (5 ILCS 140/9.5(a)), on January 28, 2010, Mr. Taylor submitted a Request for Review (RFR) to the Public Access Counselor seeking our review of the City’s authority to require a requester to pay for copies of duplicate records to be retained by the City. On February 9, 2010, we sent a letter to Mr. Taylor and Mr. Power seeking to resolve the matter informally. In the letter, we noted that double chargingi s not proper for one set of records. Mr. Power responded by letter dated February 11, 201 0, and explained the City’s approach to this issue: | The Request for Review may indicate that Mr. Taylor was double charged, however, thati s not what occurred. As I read 5/ILCS 140/6(a) and (b), the Cityi s entitled to charge for documents 15¢ per page in excess of 50 pages of the copying of all black and white letter or legal size documents. In addition, our FOIA office must maintain a complete copy of all documents forwarded in response to any request. In essence, when a person requests records containing 50 pages, 100 pages must be copies [sic] in order for the City to comply. It’s our position that the bill sent to Mr: Taylor was in compliance with the statutes as we have interrupted it [sic]. | Applicable Statutes The authority of the Public Access Counselor to issue a binding opinion is set out in Section 9.5 of the Freedom of Information Act. Pursuant to Section 9.5, a person whose request to inspect or copy a public record has been denied by a public body may, not later than 60 days after the ? In its January 14 Letter, the City indicated that it had responsive documents for only nine of Mr. Taylor’s FOIA Requests. According to a January 13, 2010, invoice, the City’s Community Development Agency charged a total of $146.55 for 977 pages of documents. The City’s Freedom of Information (FOIA) Department’s additional invoice reflects a total charge of $148.05 for duplicate copies. Mr. L. Patrick Power City of Kankakee # April 27, 2010 Page 3 date of the final denial, file a written request for review with the Public Access Counselor establishedi n the Office of the Attorney General. if the Public Access Counselor determines that the alleged violation warrants further review, the Attorney General shall examine thei ssues and the records, shall make findings of fact and conclusions of law, and shalli ssue to the requester and the public body an opinion in response to the request for review. The opinion shall be binding upon both the requester and the public body, subject to administrative review. We find that the Request for Review was timely filed and otherwise complies with the requirements of Section 9.5 of FOIA. 3 | With respect to the substantive issue raised by Mr. Taylor’s Request For Review, Section 3 of FOIA (5 ILCS 140/3 (West 2008, as amended by Public Act 96-542, effective January 1, 2010), provides: (a) Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act. * KK ; (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) Section 6 of FOIA (5 ILCS 140/6 (West 2008, as amended by Public Act 96- 542, effective January 1, 2010), provides: | (b) Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. No fees shall be charged for the first 50 pages of ~ black and white, letter or legal sized copies requested by a requester. The fee for . black and white, letter or legal sized copies’ shall not exceed 15 cents per page. * * * The City has interpreted FOIA to require that a public body must, in every case, maintain an additional, separate copy of all documents furnished to a requester and may charge the requester a fee for creating this separate copy. Section 3.5 of FOIA (5 ILCS 140/3.5, added by Public Act - 96-542, effective January 1, 2010), provides: Upon receiving a request for a public record, the Freedom of Information officer shall: (1) note the date the public body receives the written request; (2) compute the day on which the period for response will expire and make a notation of that date on the written request; Mr. L. Patrick Power City of Kankakee April 27, 2010 Page 4 (3) maintain an electronic or paper copy of a written request, including all documents submitted with the request until the request has been complied with or denied; and (4) create a file for the retention of the original request, a copy of the response, a record of written communications with the requester, and a copy of . other communications. (Emphasis added.) This section requires that a Freedom of Information Officer (FOIA Officer) retain “a copy of the response” together with the original request. The term “a copy of the response” clearly includes the written document or documents responding to a FOIA request, which may grant the request, or deny it in whole or in part. Section 3.5 does not expressly require that a FOIA Officer retain an additional, separate copy of the documents furnished pursuant to a request. Rather, as long as the FOIA Officer maintains the specified information and communications, Section 3.5 of FOIA will be satisfied. As a practical matter, the FOIA Officer should be prepared to adequately identify and produce, if requested at a later time, the documents that the public body has furnished. For example, if a person requested copies of the minutes of all city council meetings for the previous year, the FOIA Officer is not required to keep a duplicate copy of the minutes that were furnished. Instead, it would be sufficient under the Act for the FOIA Officer to note in the response the specific documents that the public body produced and to maintain a copy of that response. If the FOIA Officer keeps a copy of the response sent to the requester and can identify with certainty the records furnished to the requester and locate those records in the files of the public body, Section 3.5 does not also require the public body to retain a duplicate copy of all of the documents furnished to the requester. We acknowledge that in certain circumstances it will be necessary for a FOIA Officer to retain a copy of a document that has been produced. For instance, where the public body redacts information from a record, retaining a copy of the redacted record would provide the best evidence of what was actually furnished. That does not mean, however, that the public body may shift the cost of preparing the duplicate record to the requester. Section 3(b) of FOIA requires the public body to provide the requester with a copy of any record, and Section 6(b) allows the public body to charge for the cost of reproducing the records. These provisions do not authorize a public body to charge a requester for preparing a duplicate record to maintain in its files. Section | of FOIA (5 ILCS 140/1 (West 2008, as amended by Public Act 96-542, effective January 1, 2010) provides: The General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements. The General Assembly declares that providing records in compliance with the requirements of this Act is a primary duty of public bodies to Mr. L. Patrick Power City of Kankakee April 27, 2010 Page 5 the people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding. The General Assembly clearly recognized in Section 1 that there are costs associated with the duties imposed by FOIA, and that those costs would rest primarily on public bodies. One of the obligations of a public body under Section 3.5 of FOIA is to keep necessary records of the body’s compliance with its requirements. The language of Section 3.5, along with language relating to copies and fees in Sections 3 and 6, does not support an interpretation that allows the public body to charge the requester a fee to create a duplicate set of records for the public body to maintain. As with other records required by law to be maintained by public bodies, the cost of creating and maintaining those records is borne by the public body. Had the General Assembly intended for a public body to be able to shift the costs of its recordkeeping to the requester, it could have expressly done so. It did not. | Conclusions of Law The Public Access Counselor finds and concludes that the City of Kankakee has violated Section 6 of the Freedom of Information Act by improperly charging a copying fee to Mr. Terry Taylor for the production of duplicate records for the use of the City. In accordance with this opinion, the City of Kankakee is directed: (1) to immediately provide copies of the records requested by Mr. Taylor, subject only to the payment of the fee properly imposed pursuant to FOIA for a single copy of each record (in excess of 50 pages); or (2) alternatively, if Mr. Taylor has paid the disputed fee, to refund to Mr. Taylor the amount of the copying fees attributable to copies produced for retention by the City. The City of Kankakee should discontinue its practice of charging copying fees to a requester for copies to be retained by the City. Under Section 9.5(f) of FOIA, the City of Kankakee shall either take necessary action immediately to comply with this opinion or shall initiate administrative review under Section 11.5 of FOIA (5 ILCS 140/11.5). This opinion shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law, 735 ILCS 5/Art. III. Sincerely, Lisa Madigan Attorney General By: Cara Smith Public Access Counselor","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen requested public records from the City of Kankakee, but the City attempted to charge him for the cost of making extra copies for the City's own internal records. The Attorney General ruled that the City cannot pass the cost of its own administrative record-keeping onto the person making the FOIA request. The City was ordered to provide the records without these extra fees or refund the requester if he had already paid them.","card_headline":"A city's charge for duplicate copies for its own retention","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2010-pac-5745/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (hereinafter FOIA) (5 ILCS 140/9.5(f), added by Public Act Public Act 96-542, effective January 1, 2010). | Findings of Fact On January 6, 2010, Mr. Terry Taylor submitted 15 separate FOIA requests to the City of Kankakee (City). Each FOIA request sought “[c]Jopies of certified payroll from May 1, 2008 to April 30, 2009” and “[c]lopies of contracts from May 1, 2008 to April 30, 2009” for a specified contractor.' On J anuary 8, 2010, Assistant City Attorney L. Patrick Power sent a letter to Mr. Taylor stating that the City would require “an additional five (5) days to respond” to the FOJA Requests.: On January 14, 2010, Mr. Power sent a second letter to Mr. Taylor, stating, in part: ' The 15 contractors included Tri-City Construction; Hoerr Construction, Inc.; Sanchez Environmental; Robert F. Smith Construction; Rick Jones Construction; Lead Abatement Associate; John Burns Construction; Gibson Custom Homes, Inc.; Eubanks Sewer Service; Einfeldt Construction, Inc.; Calhoun Construction; Bittman Tree Service; Ace Remodeling; Pat Ha\n\nKankakee April 27, 2010 | Page 2, |. | With regard to your request for copies of contracts, as well as statements of non- employee compensation, said copies are ready for you to pickup at the City of Kankakee Administration Building, Adjudication Dept. 2\" Floor... Enclosed is an Invoice from the City of Kankakee Community Development Agency for the above referred to copies. |Also enclosed is a second invoice for reproducing copies that need to be retained in the FOIA Department. Please bring a check with you when you pickup the above referred to copies.” (Emphasis added.) Pursuant to Section 9.5(a) of FOIA (5 ILCS 140/9.5(a)), on January 28, 2010, Mr. Taylor submitted a Request for Review (RFR) to the Public Access Counselor seeking our review of the City’s authority to require a requester to pay for copies of duplicate records to be retained by the City. On February 9, 2010, we sent a letter to Mr. Taylor and Mr. Power seeking to resolve the matter informally. In the letter, we noted that double chargingi s not proper for one set of records. Mr. Power responded by letter dated February 11, 201 0, and explained the City’s approach to this issue: | The Request for Review may indicate that Mr. Taylor was double charged, however, thati s not what occurred. As I read 5/ILCS 140/6(a) and (b), the Cityi s entitled to charge for documents 15¢ per page in excess of 50 pages of the copying of all black and white letter or legal size documents. In addition, our FOIA office must maintain a complete copy of all documents forwarded in response to any request. In essence, when a person requests records containing 50 pages, 100 pages must be copies [sic] in order for the City to comply. It’s our position that the bill sent to Mr: Taylor was in compliance with the statutes as we have interrupted it [sic]. | Applicable Statutes The authority of the Public Access Counselor to issue a binding opinion is set out in Section 9.5 of the Freedom of Information Act. Pursuant to Section 9.5, a person whose request to inspect or copy a public record has been denied by a public body may, not later than 60 days after the ? In its January 14 Letter, the City indicated that it had responsive documents for only nine of Mr. Taylor’s FOIA Requests. According to a January 13, 2010, invoice, the City’s Community Development Agency charged a total of $146.55 for 977 pages of documents. The City’s Freedom of Information (FOIA) Department’s additional invoice reflects a total charge of $148.05 for duplicate copies. Mr. L. Patrick Power City of Kankakee # \n\ndate of the final denial, file a written request for review with the Public Access Counselor establishedi n the Office of the Attorney General. if the Public Access Counselor determines that the alleged violation warrants further review, the Attorney General shall examine thei ssues and the records, shall make findings of fact and conclusions of law, and shalli ssue to the requester and the public body an opinion in response to the request for review. The opinion shall be binding upon both the requester and the public body, subject to administrative review. We find that the Request for Review was timely filed and otherwise complies with the requirements of Section 9.5 of FOIA. 3 | With respect to the substantive issue raised by Mr. Taylor’s Request For Review, Section 3 of FOIA (5 ILCS 140/3 (West 2008, as amended by Public Act 96-542, effective January 1, 2010), provides: (a) Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act. * KK; (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) Section 6 of FOIA (5 ILCS 140/6 (West 2008, as amended by Public Act 96- 542, effective January 1, 2010), provides: | (b) Except when a fee is otherwise fixed by statute, each public body may charge fees reasonably calculated to reimburse its actual cost for reproducing and certifying public records and for the use, by any person, of the equipment of the public body to copy records. No fees shall be charged for the first 50 pages of ~ black and white, letter or legal sized copies requested by a requester. The fee for. black and white, letter or legal sized copies’ shall not exceed 15 cents per page. * * * The City has interpreted FOIA to require that a public body must, in every case, maintain an additional, separate copy of all documents furnished to a requester and may charge the requester a fee for creating this separate copy. Section 3.5 of FOIA (5 ILCS 140/3.5, added by Public Act - 96-542, effective January 1, 2010), provides: Upon receiving a request for a public record, the Freedom of Information officer shall: (1) note the date the public body receives the written request; (2) compute the day on which the period for response will expire and make a notation of that date on the written request; Mr. L. Patrick Power City of Kankakee \n\n(3) maintain an electronic or paper copy of a written request, including all documents submitted with the request until the request has been complied with or denied; and (4) create a file for the retention of the original request, a copy of the response, a record of written communications with the requester, and a copy of. other communications. (Emphasis added.) This section requires that a Freedom of Information Officer (FOIA Officer) retain “a copy of the response” together with the original request. The term “a copy of the response” clearly includes the written document or documents responding to a FOIA request, which may grant the request, or deny it in whole or in part. Section 3.5 does not expressly require that a FOIA Officer retain an additional, separate copy of the documents furnished pursuant to a request. Rather, as long as the FOIA Officer maintains the specified information and communications, Section 3.5 of FOIA will be satisfied. As a practical matter, the FOIA Officer should be prepared to adequately identify and produce, if requested at a later time, the documents that the public body has furnished. For example, if a person requested copies of the minutes of all city council meetings for the previous year, the FOIA Officer is not required to keep a duplicate copy of the minutes that were furnished. Instead, it would be sufficient under the Act for the FOIA Officer to note in the response the specific documents that the public body produced and to maintain a copy of that response. If the FOIA Officer keeps a copy of the response sent to the requester and can identify with certainty the records furnished to the requester and locate those records in the files of the public body, Section 3.5 does not also require the public body to retain a duplicate copy of all of the documents furnished to the requester. We acknowledge that in certain circumstances it will be necessary for a FOIA Officer to retain a copy of a document that has been produced. For instance, where the public body redacts information from a record, retaining a copy of the redacted record would provide the best evidence of what was actually furnished. That does not mean, however, that the public body may shift the cost of preparing the duplicate record to the requester. Section 3(b) of FOIA requires the public body to provide the requester with a copy of any record, and Section 6(b) allows the public body to charge for the cost of reproducing the records. These provisions do not authorize a public body to charge a requester for preparing a duplicate record to maintain in its files. Section | of FOIA (5 ILCS 140/1 (West 2008, as amended by Public Act 96-542, effective January 1, 2010) provides: The General Assembly recognizes that this Act imposes fiscal obligations on public bodies to provide adequate staff and equipment to comply with its requirements. The General Assembly declares that providing records in compliance with the requirements of this Act is a primary duty of public bodies to Mr. L. Patrick Power City of Kankakee \n\nthe people of this State, and this Act should be construed to this end, fiscal obligations notwithstanding. The General Assembly clearly recognized in Section 1 that there are costs associated with the duties imposed by FOIA, and that those costs would rest primarily on public bodies. One of the obligations of a public body under Section 3.5 of FOIA is to keep necessary records of the body’s compliance with its requirements. The language of Section 3.5, along with language relating to copies and fees in Sections 3 and 6, does not support an interpretation that allows the public body to charge the requester a fee to create a duplicate set of records for the public body to maintain. As with other records required by law to be maintained by public bodies, the cost of creating and maintaining those records is borne by the public body. Had the General Assembly intended for a public body to be able to shift the costs of its recordkeeping to the requester, it could have expressly done so. It did not. | Conclusions of Law The Public Access Counselor finds and concludes that the City of Kankakee has violated Section 6 of the Freedom of Information Act by improperly charging a copying fee to Mr. Terry Taylor for the production of duplicate records for the use of the City. In accordance with this opinion, the City of Kankakee is directed: (1) to immediately provide copies of the records requested by Mr. Taylor, subject only to the payment of the fee properly imposed pursuant to FOIA for a single copy of each record (in excess of 50 pages); or (2) alternatively, if Mr. Taylor has paid the disputed fee, to refund to Mr. Taylor the amount of the copying fees attributable to copies produced for retention by the City. The City of Kankakee should discontinue its practice of charging copying fees to a requester for copies to be retained by the City. Under Section 9.5(f) of FOIA, the City of Kankakee shall either take necessary action immediately to comply with this opinion or shall initiate administrative review under Section 11.5 of FOIA (5 ILCS 140/11.5). This opinion shall be considered a final decision of an administrative agency, for purposes of administrative review under the Administrative Review Law, 735 ILCS 5/Art. III. Sincerely, Lisa Madigan Attorney General By: Cara Smith Public Access Counselor"}
{"id":218,"orig_master_id":19192,"dup_master_id":19425,"dup_sha256":"76661634f177e8497879f5e19db724e59dc7b754b88384673b38b23f13ee6171","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-10-25","case_number":"2010 PAC 11568","request_numbers":null,"title":"Disclosure of Number of Police Officers Assigned to Districts","filename":"PUBLIC ACCESS OPINION No. 11-002 (Request for Review - 2010 PAC 11568).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION No. 11-002 (Request for Review - 2010 PAC 11568).pdf","word_count":1732,"summary":"This document is a Public Access Opinion regarding a FOIA request submitted by Joseph Mahr of the Chicago Tribune for the number of police officers assigned to districts, which was initially denied by the Chicago Police Department.","plain_summary":"The requester, a newspaper reporter, sought the current total number of sworn police officers assigned to each police district, which a police department withheld in full as a vulnerability assessment or security measure. The Public Access Counselor held that the exemption applies only to measures designed to prevent attacks that could destroy or contaminate a community's population or infrastructure, and the department failed to show that disclosing district staffing totals would jeopardize any such security measure. The department was directed to provide the requested staffing records.","holding":"The Department's denial of the FOIA request was not justified under the exemption claimed.","legal_question":"Whether the Chicago Police Department's denial of the FOIA request for the number of sworn officers assigned to each district was justified.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/1, 735 ILCS 4/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(v)","public_body":"Chicago Police Department","requesting_party":"Joseph Mahr, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The disclosure of the number of sworn police officers assigned to specific police districts.","ocr_status":"ok","ocr_quality":91.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-002.pdf","sha256":"38fb68693f9dbdf6a6110c09cfba05b05c53db5a3a22708d354d35182b4ef020","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police records","FOIA request","public disclosure","police staffing"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL February 25, 2011 Officer Christopher Bove #8230 Assistant FOIA Officer Chicago Police Department 3510S. Michigan Ave. Chicago, IL 60653 PUBLIC ACCESS OPINION No. 11-002 (Request for Review 2010 PAC 11568) FREEDOM OF INFORMATION ACT: Disclosure of Number of Police Officers Assigned to Districts Dear Officer Bove: This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(, added by Public Act 96-542, effective January 1, 2010). Background On October 25, 2010, Joseph Mahr, a reporter with the Chicage Tribune (Tribune) submitted a FOIA request to the Department which sought records that contain the current sum of the number of sworn officers assigned to each district. On November 1, 2010, the Department denied this FOIA request, citing the Section 7(1)(v) (5 ILCS 140/7(1)(v)) exemption. On December 28, 2010, this Office received the 7ribune’s Request for Review. On January 7, 2011, we notified the Department that we would require additional information in order to determine whether the Department’s response complied with FOIA. Since that time, we have received a written response from the Department (including a partially redacted affidavit of Deputy Superintendent Ernest T. Brown, dated January 25, 2011) as well as additional correspondence from the Tribune, all of which we have considered in making a determination regarding this matter. Section 1.2 of FOIA (5 ILCS 140/1.2) provides that “[a]ll records in the custody or possession of a public body are presumed to be open to inspection and copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” Therefore, in the context of a Request for Review, the 500 South Second Street, Springfield, Illinois 62706 © (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 1001 East Main, Carbondale, [Minois 62901 © (618) 529-6400 © TTY: (877) 675-9339 ¢ Fax: (618) 529-6416 <iees issue is whether the public body has proved by clear and convincing evidence that the information it has withheld is exempt from disclosure under Section 7 of FOIA. As set forth more fully below, we find that the Department has not met its burden of demonstrating that the records responsive to Mr. Mahr’s FOIA Request are exempt under FOIA. The Department asserts that the requested records are exempt under Section 7(1)(v) of FOIA, which exempts from inspection and copying the following: Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations. In its initial response to Mr. Mahr’s FOIA request, the Department asserted: The information that you are requesting pertains to the mobilization and deployment of Chicago Police Department personnel. ... It can be reasonably expected that the information that you have requested could be used to undermine the effectiveness of the City’s security measures or the safety of the personnel who implement them, This would then constitute a clear and present danger to the health and safety of the community. In its Request for Review, the Tribune states that “[d]isclosing how many of the CPD’s approximately 13,000 sworn officers are assigned to each of 25 districts cannot possibly limit the effectiveness of security measures.” Moreover, it states that the Department misconstrues Section 7(1)(v) which, “[b]y its terms, . . . is limited to situations where destruction or contamination of facilities would cause a clear and present danger to public health.” In response to our request for additional information, the Department also argues that, because the Tribune seeks “details pertaining to the mobilization or deployment of personnel”, the requested records are exempt per se under Section 7(1)(v) . It argues further that, even if the requested records are not deemed exempt per se, those records fall within what the Department characterizes as “the first portion of the definition” in Section 7(1)(v). Deputy Superintendent Brown’s affidavit, submitted with this response, avers in part that: Although the number of sworn police officers is a generally static number for each of the 25 districts, the CPD Command Staff make decisions on deployment of resources, i.e., additional sworn police officers, that may be detailed or assigned to target a certain district and/or beat of a district in response to a large event, a series of violent incidents or other such threat to the public within that area, In reply, the Tribune states that the Department’s response effectively “attempts to read the second sentence of [Section] 7(1)(v) as if it were not qualified by the first sentence” and that the proper reading of Section 7(1)(v) dictates that “[t]he second sentence does not even enter the analysis if, as is the situation here, the criteria set forth in the first sentence are not met.” It also notes that it “does not seek the analysis behind staffing decisions—simply the number of sworn officers per district.” Analysis As noted above, Section 7(1)(v) exempts from disclosure: Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations. By its terms, this exemption applies to particular types of “vulnerability assessments, security measures, and response policies or plans”, namely those that are “designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community” and only in circumstances where “disclosure could reasonably be expected to jeopardize the effectiveness of [these] measures or the safety of the personnel who implement them or the public” protected by these measures. This exemption is applicable to assessments, measures, policies and plans designed to address those potential attacks targeted at the destruction or contamination of a community’s population or infrastructure. Contrary to the Department’s contention, the second sentence of this exemption does not modify the nature of the information made exempt under the first sentence. Thus, the second sentence does not generally exempt “details pertaining to the mobilization or deployment of personnel or equipment”. Rather, it only exempts such information to the extent disclosure “would constitute a clear and present danger to the health or safety of the community”, and “only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the [particular types of measures identified in the first sentence of the definition] or the safety of the personnel who implement them or the public.” Findings and Conclusions After full review and giving due consideration to the positions of the parties, the Attorney General finds that: 1) The Chicago Tribune’s Request for Review was timely filed and otherwise complies with the requirements of Section 9.5(a) of the Freedom of Information Act (5 ILCS 140/9.5(a)). Therefore, the Attorney General may properly issue a binding opinion with respect to the disclosure of the requested records. 2) The Chicago Police Department possesses records responsive to the Tribune’s request but has asserted that the records constitute “vulnerability assessments, security measures, [or] response policies or plans” that are exempt from disclosure pursuant to Section 7(1)(v) of the Freedom of Information Act. 3) The Department has failed to sustain its burden of demonstrating that the records in question constitute “vulnerability assessments, security measures, [or] response policies or plans” as described in the first sentence of Section 7(1)(v). Further, the Department has failed to demonstrate how the disclosure of records containing the current sum of the number of sworm officers assigned to each district could “reasonably be expected to jeopardize the effectiveness of [any security] measures or the safety of the personnel who implement them or the public.” 4) Accordingly, records of the Chicago Police Department containing the current sum of the number of sworn officers assigned to each district are not exempt from disclosure under Section 7(1)(v) of the Freedom of Information Act. Therefore, it is the opinion of the Attorney General that the Chicago Police Department has violated FOIA by improperly denying The Chicago Tribune’s request for records containing the current sum of the number of sworn officers assigned to each police district. The Department is required to provide copies of the requested records to Mr. Mahr pursuant to his October 25, 2010 request. Under Section 9.5(f) of FOIA, the Department must either immediately comply with this binding opinion or initiate administrative review under Section 11.5 of FOIA. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 4/3-101 et seg. An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of the decision naming the Attorney General of Illinois and Mr. Joseph Mahr as defendants. See 5 ILCS 140/11.5. Sincerely, LISA MADIGAN ATTORNEY GENERAL By: (Listee- Garde. Michael J. Luke Senior Assistant Attorney General Chief, Public Access and Opinions ° Division cc: Mr. Joseph Mahr Chicago Tribune Via e-mail to: jmahr@tribune.com Mr. Brendan Healey Senior Counsel/Media & Promotions Chicago Tribune Via e-mail to: bhealey@tribune.com 11568 rfr f pb ex improper pd","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A Chicago Tribune reporter asked the Chicago Police Department for the number of police officers assigned to each district, but the Department refused to release the information. The Attorney General's office reviewed the case and ruled that the Department did not have a valid legal reason to keep this information secret. Consequently, the Department was ordered to provide the requested records to the reporter.","card_headline":"Number of sworn officers per police district","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2010-pac-11568/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(, added by Public Act 96-542, effective January 1, 2010). Background On October 25, 2010, Joseph Mahr, a reporter with the Chicage Tribune (Tribune) submitted a FOIA request to the Department which sought records that contain the current sum of the number of sworn officers assigned to each district. On November 1, 2010, the Department denied this FOIA request, citing the Section 7(1)(v) (5 ILCS 140/7(1)(v)) exemption. On December 28, 2010, this Office received the 7ribune’s Request for Review. On January 7, 2011, we notified the Department that we would require additional information in order to determine whether the Department’s response complied with FOIA. Since that time, we have received a written response from the Department (including a partially redacted affidavit of Deputy Superintendent Ernest T. Brown, dated January 25, 2011) as well as additional correspondence from the Tribune, all of which we have considered in making a determination regarding this matter. Section 1.2 of FOIA (5 ILCS 140/1.2) provides that “[a]ll records in the custody or possession of a public body are presumed to be open to inspection and copying. Any public body that asserts that a record is exempt from disclosure has the burden of proving by clear and convincing evidence that it is exempt.” Therefore, in the c\n\nhas proved by clear and convincing evidence that the information it has withheld is exempt from disclosure under Section 7 of FOIA. As set forth more fully below, we find that the Department has not met its burden of demonstrating that the records responsive to Mr. Mahr’s FOIA Request are exempt under FOIA. The Department asserts that the requested records are exempt under Section 7(1)(v) of FOIA, which exempts from inspection and copying the following: Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations. In its initial response to Mr. Mahr’s FOIA request, the Department asserted: The information that you are requesting pertains to the mobilization and deployment of Chicago Police Department personnel.... It can be reasonably expected that the information that you have requested could be used to undermine the effectiveness of the City’s security measures or the safety of the personnel who implement them, This would then constitute a clear and present danger to the health and safety of the community. In its Request for Review, the Tribune states that “[d]isclosing how many of the CPD’s approximately 13,000 sworn officers are assigned to each of 25 districts cannot possibly limit the effectiveness of security measures.” Moreover, it states that the Department misconstrues Section 7(1)(v) which, “[b]y its terms,... is limited to situations where destruction or contamination of facilities would cause a clear and present danger to public health.” In response to our request for additional information, the Department also argues that, because the Tribune seeks “details pertaining to the mobilization or deployment of personnel”, the requested records are exempt per se under Section 7(1)(v). It argues further that, even if the requested records are not deemed exempt per se, those records fall within what the Department characterizes as “the first portion of the definition” in Section 7(1)(v). Deputy Superintendent Brown’s affidavit, submitted with this response, avers in part that: Although the number of sworn police officers is a generally static number for each of the 25 districts, the CPD Command Staff make decisions on deployment of resources, i.e., additional sworn police officers, that may be detailed or assigned to target a certain district and/or beat of a district in response to a large event, a series of violent incidents or other such threat to the public within that area, In reply, the Tribune states that the Department’s response effectively “attempts to read the second sentence of [Section] 7(1)(v) as if it were not qualified by the first sentence” and that the proper reading of Section 7(1)(v) dictates that “[t]he second sentence does not even enter the analysis if, as is the situation here, the criteria set forth in the first sentence are not met.” It also notes that it “does not seek the analysis behind staffing decisions—simply the number of sworn officers per district.” Analysis As noted above, Section 7(1)(v) exempts from disclosure: Vulnerability assessments, security measures, and response policies or plans that are designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community, but only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the measures or the safety of the personnel who implement them or the public. Information exempt under this item may include such things as details pertaining to the mobilization or deployment of personnel or equipment, to the operation of communication systems or protocols, or to tactical operations. By its terms, this exemption applies to particular types of “vulnerability assessments, security measures, and response policies or plans”, namely those that are “designed to identify, prevent, or respond to potential attacks upon a community’s population or systems, facilities or installations, the destruction or contamination of which would constitute a clear and present danger to the health or safety of the community” and only in circumstances where “disclosure could reasonably be expected to jeopardize the effectiveness of [these] measures or the safety of the personnel who implement them or the public” protected by these measures. This exemption is applicable to assessments, measures, policies and plans designed to address those potential attacks targeted at the destruction or contamination of a community’s population or infrastructure. Contrary to the Department’s contention, the second sentence of this exemption does not modify the nature of the information made exempt under the first sentence. Thus, the second sentence does not generally exempt “details pertaining to the mobilization or deployment of personnel or equipment”. Rather, it only exempts such information to the extent disclosure “would constitute a clear and present danger to the health or safety of the community”, and “only to the extent that disclosure could reasonably be expected to jeopardize the effectiveness of the [particular types of measures identified in the first sentence of the definition] or the safety of the personnel who implement them or the public.” Findings and Conclusions After full review and giving due consideration to the positions of the parties, the Attorney General finds that: 1) The Chicago Tribune’s Request for Review was timely filed and otherwise complies with the requirements of Section 9.5(a) of the Freedom of Information Act (5 ILCS 140/9.5(a)). Therefore, the Attorney General may properly issue a binding opinion with respect to the disclosure of the requested records. 2) The Chicago Police Department possesses records responsive to the Tribune’s request but has asserted that the records constitute “vulnerability assessments, security measures, [or] response policies or plans” that are exempt from disclosure pursuant to Section 7(1)(v) of the Freedom of Information Act. 3) The Department has failed to sustain its burden of demonstrating that the records in question constitute “vulnerability assessments, security measures, [or] response policies or plans” as described in the first sentence of Section 7(1)(v). Further, the Department has failed to demonstrate how the disclosure of records containing the current sum of the number of sworm officers assigned to each district could “reasonably be expected to jeopardize the effectiveness of [any security] measures or the safety of the personnel who implement them or the public.” 4) Accordingly, records of the Chicago Police Department containing the current sum of the number of sworn officers assigned to each district are not exempt from disclosure under Section 7(1)(v) of the Freedom of Information Act. Therefore, it is the opinion of the Attorney General that the Chicago Police Department has violated FOIA by improperly denying The Chicago Tribune’s request for records containing the current sum of the number of sworn officers assigned to each police district. The Department is required to provide copies of the requested records to Mr. Mahr pursuant to his October 25, 2010 request. Under Section 9.5(f) of FOIA, the Department must either immediately comply with this binding opinion or initiate administrative review under Section 11.5 of FOIA. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 4/3-101 et seg. An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of the decision naming the Attorney General of Illinois and Mr. Joseph Mahr as defendants. See 5 ILCS 140/11.5. Sincerely, LISA MADIGAN ATTORNEY GENERAL By: (Listee- Garde. Michael J. Luke Senior Assistant Attorney General Chief, Public Access and Opinions ° Division cc: Mr. Joseph Mahr Chicago Tribune Via e-mail to: jmahr@tribune.com Mr. Brendan Healey Senior Counsel/Media & Promotions Chicago Tribune Via e-mail to: bhealey@tribune.com 11568 rfr f pb ex improper pd"}
{"id":219,"orig_master_id":19422,"dup_master_id":19193,"dup_sha256":"b75662eff111e64f089fae630b2bb24138be0e2cc07faaada907a2505d3649e7","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-12-29","case_number":"2010 PAC 10658","request_numbers":null,"title":"Settlement Agreements","filename":"PUBLIC ACCESS OPINION No. 10-004 (Request for Review 2010 PAC 10658).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 10-004 (Request for Review 2010 PAC 10658).pdf","word_count":2856,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a request for review related to settlement agreements under the Freedom of Information Act.","plain_summary":"The requester, a newspaper reporter, sought a settlement agreement resolving an employment discrimination lawsuit against a village, which the village claimed it did not possess because its insurer had negotiated the settlement without the village's input. The Public Access Counselor held that settlement agreements entered into on a public body's behalf are public records under FOIA regardless of who drafted them or whether the village retained a copy, and that the village forfeited any exemption claim by failing to identify or produce the agreement for confidential review. The village was directed to furnish the settlement agreement, subject to redaction of the other party's private information.","holding":"The Village of McCook must disclose the settlement agreement entered into on its behalf with Margaret Foster, as it is a public record under Section 2.20 of FOIA, subject to redaction of information exempt under Section 7.","legal_question":"Whether settlement agreements are subject to disclosure under the Freedom of Information Act.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Village of McCook","requesting_party":"Mr. Steve Warmbir (Chicago Sun-Times)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"settlement agreements","subject_description":"The request sought a settlement agreement between the Village of McCook and a plaintiff in an employment discrimination lawsuit.","ocr_status":"ok","ocr_quality":91.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2010-Binding-PAC-Opinions/2010-004.pdf","sha256":"2563a9d1f7cc92417a4ad71f7096074cf60c8bf5677f1100f888b66a2875d6a1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["settlement agreement","public record","employment discrimination","FOIA disclosure"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nDecember 29, 2010\nMs. Renee Botica\nFreedom of Information Officer\nVillage of McCook\n[street address redacted for site publication -- see original PDF]\nPUBLIC ACCESS OPINION No. 10-004\n(Request for Review 2010 PAC 10658)\nFREEDOM OF INFORMATION ACT:\nSettlement Agreements\nDear Ms. Botica:\nThis binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (5\nILCS 140/9.5(f), added by Public Act 96-542, effective January 1, 2010).\nBackground\nOn March 2, 2009, Margaret Foster filed an employment discrimination action against the\nVillage of McCook (Village), its Acting Mayor, and its Police Chief in the United States District\nCourt for the Northern District of Illinois, Eastern Division.' Gregory Stephen Mathews of the\nlaw firm of Ancel, Glink, Diamond, Bush, DiCianni, & Krafthefter, P.C. entered an appearance\nin the action as the attorney for the Village of McCook.\nOn June 23, 2010, the district court entered an order dismissing the Mayor as a party pursuant to\nthe plaintiffs notice of voluntary dismissal. Five days later, the’ remaining parties filed a\nStipulation to dismiss the action with prejudice. The stipulation recited that all matters in\ncontroversy between Ms. Foster and the Village had been “settled and compromised.” On June\n' Margaret Foster v. Village of McCook, et al., Docket No. 09-cv-0325 (N.D. Ill.).\n500 South Second Street, Springfield, IMinois 62700 © (217) 782-1090 ¢ TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60001 © (312) 814-3000 ¢ PTY: (800) 964-3013 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Hlinois 62901 © (618) 529-6400 © TTY: (877) 675-9339 © Fax: (618) 5279-0416 ies\nMs. Renee Botica\nDecember 29, 2010\nPage 2\n30, 2010, the district court dismissed the action with prejudice pursuant to the stipulation to\ndismiss. This office takes official notice of the aforementioned district court orders and filings.”\nChicago Sun-Times reporter Steve Warmbir submitted a FOIA request to the Village by e-mail\ndated October 4, 2010. Mr. Warmbir requested “[a] copy of any and all records reflecting the\nsettlement or payment made to Margaret Foster and/or her attorney in the matter of federal court\ncase 1:09-cv-1325 as well as a copy of any and all settlement agreements signed by the parties in\nthe case.” After invoking Section 3(e) of FOIA (5 ILCS 140/3(e)) to extend its response time for\nfive additional days, the Village sent Mr. Warmbir a letter dated October 18, 2010 stating that\nthere were “no documents responsive to your request in the Village’s possession.”\nMr. Warmbir then sent the Village another e-mail dated October 20, 2010 in which he stated that\nhe would modify his FOIA request “possibly to clarify it,” and stated that he believed that the\nVillage did have the document that he had requested. He referenced the June 28, 2010\nstipulation that the parties had entered into to dismiss Ms. Foster’s federal court action, and\nnoted that the stipulation began by stating, “[a]ll matters in controversy having been settled.”\nMr. Warmbir then stated, “under Illinois FOIA, I am asking for a copy of any and all documents\nor e-mails reflecting a settlement between the Village of McCook and Margaret Foster in the\nvillage’s possession or in the possession of an agent of the village.”\nIn response, the Village sent Mr. Warmbir a letter dated November 4, 2010 stating that it\npossessed a court order and three reports from the Village’s insurance carrier that were\nresponsive to his request, and that those documents were enclosed. The court order was the June\n23, 2010 order dismissing the Mayor of McCook as a party to Foster’s federal court action. The\nVillage’s letter further stated that, to the extent Mr. Warmbir sought records that are exempt\nfrom disclosure under Section 7(1)(m) of FOIA (5 ILCS 140/7(1)(m)), his request was denied.\nSection 7(1)(m) exempts from disclosure “[c]ommunications between a public body and an\nattorney or auditor representing the public body that would not be subject to discovery in\nlitigation, and materials prepared by or compiled by or for a public body in anticipation of a\ncriminal, civil, or administrative proceeding upon the request of an attorney advising the public\nbody, and materials prepared or compiled with respect to internal audits of public bodies.”\nMr. Warmbir then sent the Village an e-mail dated November 5, 2010 which stated that the\ndocuments he had received from the Village did not include a copy of the settlement agreement\nbetween Ms. Foster and the Village. The e-mail stated that, if Mr. Warmbir did not receive a\ncopy of the settlement agreement by 5:00 p.m. the following Monday (November 8, 2010), he\n2 See People v. One 1999 Lexus, VIN JT8BH68X2X0018305, 367 Ill. App. 3d 687, 690, 855 N.E.2d 194, 199 (2TM4\nDist. 2006) (judicial notice may be taken of court records); 5 ILCS 100/10-40 (West 2008) (codifying general\nprinciple that administrative agencies may take official notice of matters of which the circuit courts may take\njudicial notice).\nMs. Renee Botica\nDecember 29, 2010\nPage 3\nwould proceed accordingly. On November 9, 2010, Mr. Warmbir submitted a Request for\nReview to the Public Access Counselor.\nThis office issued a further inquiry letter to the Village on November 19, 2010. See 5 ILCS\n140/9.5(b). The further inquiry letter requested that the Village do four things. First, it requested\nthat the Village “state in writing whether a settlement agreement exists with regard to the\nlitigation between the Village and Margaret Foster.” Second it stated that, if such an agreement\nexists, “we ask the Village to explain in detail why it did not provide a copy of the settlement\nagreement to Mr. Warmbir.” Third, it asked “that the Village send this office a copy of the\nsettlement agreement.” Finally, it asked that, if “the Village believes that any portions of the\nsettlement agreement should be redacted because those portions contain information that is\nexempt from disclosure under Section 7 of FOIA, then it should specify those portions of the\nagreement and state the specific basis for its claim that those portions are exempt from\ndisclosure.”\nIn its December 2, 2010 response to the further inquiry letter, the Village stated that Ms. Foster’s\nlawsuit had been referred to the Illinois Municipal League Risk Management Association, which\ndefended the Village under the terms of an insurance policy. The Village then stated that the\ninsurance policy empowered the Association “to defend and settle the lawsuit without additional\ninput or approval from the Village.” The Village further stated that it does not “have a copy of\nany settlement agreement reached by the Association, on behalf of the Village, and Ms. Foster.”\nThe Village did not enclose a copy of the settlement agreement nor did it specify any portions\nthat should be redacted because they contain information thaits exempt under Section 7 of\nFOIA.\nOn December .14, 2010, Mr. Warmbir responded in writing to the Village’s response. See 5\nILCS 140/9.5(d). Mr. Warmbir noted that the Village had not disputed that there is a settlement\nagreement between Ms. Foster and the Village. Furthermore, the Village had not claimed in its\nresponse that any FOIA exemptions applied. Instead, the Village had stated that it does not\npossess the document, and its attorney does. The Village then sent this office a letter dated\nDecember 20, 2010 in which it responded to Mr. Warmbir. The Village stated that it had never\nclaimed that the settkement agreement sought by Mr. Warmbir was in the possession of an\nattorney representing the Village. The Village reiterated that the settlement agreement was\nprepared by the Illinois Municipal League Risk Management Association, which defended and\nsettled the lawsuit without the Village’s input and approval.\nAnalysis\nThe issue in this matter is whether FOIA requires the Village to disclose a copy of the settlement\nagreement that resolved the federal court litigation between Ms. Foster and the Village. Section\n2.20 of FOIA (5 ILCS 140/2.20) states that “[a]ll settlement agreements entered into by or on\nbehalf of a public body are public records subject to inspection and copying by the public,\nMs. Renee Botica\nDecember 29, 2010\nPage 4\nprovided that information exempt from disclosure under section 7 of this Act may be redacted.”\nThe cardinal rule of statutory construction is to determine and effectuate the legislature’s intent.\nAcme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 37, 923 N.E.2d 718, 724 (2009). The best source\nof legislative intent is the plain and ordinary meaning of the statutory language. Callanan, 236\nIll. 2d at 37-38. When statutory language is plain and unambiguous, it must be applied as written\nwithout departing from the terms of the provision by reading in exceptions, limitations or\nconditions that conflict with the express legislative intent. Jd. at 38.\nSection 2.20 of FOIA plainly states that settlement agreements entered into by a public body or\non its behalf “are public records subject to inspection and copying by the public”. That clear,\nunambiguous statutory language must be enforced as written. Under Section 2.20, the Village\nmust make the settlement agreement requested by Mr. Warmbir available for inspection and\ncopying.\nThe Village’s asserted justifications for failing to make the settlement agreement available to Mr.\nWarmbir for inspection and copying are unavailing. The Village asserts that the settlement\nagreement is not in the Village’s possession. The Village further asserts that the Village’s\ninsurer, the Illinois Municipal League Risk Management Association, arranged the settlement\nagreement with Ms. Foster, and the Village had no input. But under the plain language of\nSection 2.20, “[a]ll settlement agreements entered into by or on behalf of a public body are\npublic records subject to inspection and copying by the public” subject to appropriate redactions\nunder Section 7 (emphasis added). Under this clear, unambiguous language, the settlement\nagreement is a public record that must be disclosed because it was entered into on the Village’s\nbehalf, even if the Village lacked input, and even if the Village does not currently possess the\ndocument. The Village cannot avoid compliance with the clear language of FOIA by declining\nto maintain in its files a copy of the settlement agreement entered into on its behalf.\nAside from the plain language of Section 2.20, a contrary result would have absurd consequences\nthat would be inconsistent with FOIA’s purpose of promoting the transparency and\naccountability of public bodies through access to public records. 5 ILCS 140/1. Courts in other\njurisdictions have observed that there is a strong public interest in disclosure of settlement\nagreements entered into by or on behalf of public bodies. See, e.g., Miami Herald Publ’g Co. v.\nCollazo, 329 So. 2d 333, 338 (Fla. App. 1976); Tribune-Review Publishing Co. v. Westmoreland\nCounty Housing Authority, 374 Pa. 661, 669-70, 833 A.2d 112, 117 (2003). As the\nPennsylvania Supreme Court stated, “[t]hose interests are: 1) the public’s right to know whether\na public official or employee has been charged with official misconduct and 2) the financial\nimpact upon the public of a litigation settlement that is paid either with public funds or with\ninsurance proceeds generated by publicly financed insurance premiums” which often influence\nthe public bodies’ future insurance rates. Tribune-Review Publishing Co., 833 A.2d at 117.\nMs. Renee Botica\nDecember 29, 2010\nPage 5\nLike the Village, the county housing authority in Tribune-Review Publishing Co. attempted to\njustify nondisclosure of a settlement agreement by arguing that it did not possess a copy of the\nagreement. Jd. In rejecting this argument, the court stated that, under the housing authority’s\nlogic, “any public entity could thwart disclosure required by the Act by having an attorney or an\ninsurer’s attorney prepare every writing that the public entity wishes to keep confidential.” Jd. at\n118. This would be an absurd result that is inconsistent with FOIA’s purpose of promoting the\ntransparency and accountability of public bodies through access to public records. 5 ILCS 140/1.\nThe relevant statutory provisions should be construed so as to avoid the absurd results suggested\nby the Village. See Burger v. Lutheran Gen’l Hospital, 198 Il. 2d 21, 59, 759 N.E.2d 533, 555\n(2001).\nAs noted above, Section 2.20 provides that “information exempt from disclosure under section 7\nof this Act may be redacted” from settlement agreements before public bodies disclose them to\nFOIA requesters. In its further inquiry letter of November 19, 2010, this office asked the Village\nto send it a copy of the settlement agreement and to specify any portions that should be redacted\nunder Section 7. The Village failed to do so, and it has thereby forfeited the opportunity to\nclaim that the agreement or any portion therof is exempt from disclosure.’\nAlthough the Village has not raised any Section 7 exemptions, we note that it is possible that the\nsettlement agreement contains private information about Ms. Foster, such as her social security\nnumber. Ms. Foster should not suffer the consequences of the Village’s failure to abide by the\ndirectives in this office’s further inquiry letter. Accordingly, the Village may redact from the\nsettlement agreement any private information of Ms. Foster that is exempt under Section 7(1)(b)\nof FOIA (5 ILCS 140/7(1)(b)), including her social security number, and her home address.\nFindings and Conclusions\nAfter full review and giving due consideration to the arguments of the parties, the Public Access\nCounselor’s findings, and the applicable law, the Attorney General finds that:\n3 In responding to Mr. Warmbir’s FOIA request, the Village appeared to claim that the settlement agreement was\nexempt under Section 7(1)(m) of FOIA (5 ILCS 140/7(1)am)), but it has made no such contention in response to his\nRequest for Review. Furthermore, any such assertion would be unavailing. Section 7(1)(m) exempts from\ndisclosure “[c]ommunications between a public body and an attorney or auditor representing the public body that\nwould not be subject to discovery in litigation, and materials prepared by or compiled by or for a public body in\nanticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public\nbody, and materials prepared or compiled with respect to internal audits of public bodies.” The Village contends\nthat the settlement agreement was reached without any input from the Village so it cannot possibly constitute a\ncommunication between the Village and its attorney. Further, the Village has made no showing that the settlement\nagreement was prepared by or for the Village in anticipation of the Foster litigation.\nMs. Renee Botica\nDecember 29, 2010\nPage 6\n1). Mr. Warmbir’s Request for Review was timely filed and otherwise complies with Section 9.5\nof FOIA (5 ILCS 140/9.5). Therefore, the Attorney General may properly issue a binding\nopinion with respect to the disclosure of the record in issue.\n2). The Village has not produced to Mr. Warmbir for inspection or copying the requested\nsettlement agreement entered into by the Village or on the Village’s behalf with Ms. Margaret\nFoster with regard to the litigation in case number 09-CV-1325 filed by Ms. Foster in the United\nStates District Court for the Northern District of Illinois, Eastern Division.\n3). The Village has, as a matter of law, denied Mr. Warmbir’s FOIA requests by failing to\nfurnish the settlement agreement within the response period set forth in Section 3(d) of FOIA (5\nILCS 140/3(d)).\n4). The settlement agreement requested by Mr. Warmbir is a public record that the Village is\nrequired to produce to Mr. Warmbir for inspection and copying under Section 2.20 of FOIA (5\nILCS 140/2.20).\n5) Before producing the settlement agreement for inspection and copying by Mr. Warmbir, the\nVillage may redact any private information of Ms. Margaret Foster that is exempt from\ndisclosure under Section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b)).\nIn conclusion, it is the opinion of the Attorney General that the Village has, in violation of the\nrequirements of the Freedom of Information Act, improperly denied Mr. Warmbir’s request for\naccess to and/or a copy of the settlement agreement between the Village and Ms. Margaret Foster\nwith regard to the litigation in case number 09-CV-1325 filed by Ms. Foster in the United States\nDistrict Court for the Northern District of Illinois, Eastern Division. Accordingly, the Village is\ndirected to take immediate and appropriate action to comply with this opinion by furnishing the\nsettlement agreement to Mr. Warmbir. The Village may redact any private information of Ms.\nMargaret Foster that is exempt from disclosure under Section 7(1)(b) of FOIA (5 ILCS\n140/7(1)(b)).\nThis opinion shall be considered a final decision of an administrative agency for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. An\naggrieved party may obtain judicial review of the decision by filing a complaint for\nadministrative review in the Circuit Court of Cook or Sangamon County within 35 days of the\ndate of this decision naming the Attorney General of Illinois and Mr. Steve Warmbir as\ndefendants. See 5 ILCS 140/11.5.\nMs. Renee Botica\nDecember 29, 2010\nPage 7\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nSenior Assistant Attorney General\nChief, Public Access and Opinions Division\ncc: Mr. Steve Warmbir\nChicago Sun-Times\n35 Orleans St.\nChicago, Illinois 60654\nMs. Amber Munday\nDel Galdo Law Group, LLC\n1441 South Harlem Ave.\nBerwyn, Illinois 60402","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested a copy of a settlement agreement between the Village of McCook and Margaret Foster, who had filed an employment discrimination lawsuit against the Village. The Village refused to release it, stating it did not possess the document because the settlement was handled by its insurer. The Attorney General issued a binding opinion that under Section 2.20 of FOIA, settlement agreements entered into by or on behalf of a public body are public records that must be disclosed, even if the public body does not possess the document. The opinion ordered the Village to make the settlement agreement available for inspection and copying, subject to redaction of information exempt under Section 7 of FOIA.","card_headline":"A settlement agreement in an employment discrimination lawsuit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2010-pac-10658/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (5\nILCS 140/9.5(f), added by Public Act 96-542, effective January 1, 2010).\nBackground\nOn March 2, 2009, Margaret Foster filed an employment discrimination action against the\nVillage of McCook (Village), its Acting Mayor, and its Police Chief in the United States District\nCourt for the Northern District of Illinois, Eastern Division.' Gregory Stephen Mathews of the\nlaw firm of Ancel, Glink, Diamond, Bush, DiCianni, & Krafthefter, P.C. entered an appearance\nin the action as the attorney for the Village of McCook.\nOn June 23, 2010, the district court entered an order dismissing the Mayor as a party pursuant to\nthe plaintiffs notice of voluntary dismissal. Five days later, the’ remaining parties filed a\nStipulation to dismiss the action with prejudice. The stipulation recited that all matters in\ncontroversy between Ms. Foster and the Village had been “settled and compromised.” On June\n' Margaret Foster v. Village of McCook, et al., Docket No. 09-cv-0325 (N.D. Ill.).\n500 \n\n30, 2010, the district court dismissed the action with prejudice pursuant to the stipulation to\ndismiss. This office takes official notice of the aforementioned district court orders and filings.”\nChicago Sun-Times reporter Steve Warmbir submitted a FOIA request to the Village by e-mail\ndated October 4, 2010. Mr. Warmbir requested “[a] copy of any and all records reflecting the\nsettlement or payment made to Margaret Foster and/or her attorney in the matter of federal court\ncase 1:09-cv-1325 as well as a copy of any and all settlement agreements signed by the parties in\nthe case.” After invoking Section 3(e) of FOIA (5 ILCS 140/3(e)) to extend its response time for\nfive additional days, the Village sent Mr. Warmbir a letter dated October 18, 2010 stating that\nthere were “no documents responsive to your request in the Village’s possession.”\nMr. Warmbir then sent the Village another e-mail dated October 20, 2010 in which he stated that\nhe would modify his FOIA request “possibly to clarify it,” and stated that he believed that the\nVillage did have the document that he had requested. He referenced the June 28, 2010\nstipulation that the parties had entered into to dismiss Ms. Foster’s federal court action, and\nnoted that the stipulation began by stating, “[a]ll matters in controversy having been settled.”\nMr. Warmbir then stated, “under Illinois FOIA, I am asking for a copy of any and all documents\nor e-mails reflecting a settlement between the Village of McCook and Margaret Foster in the\nvillage’s possession or in the possession of an agent of the village.”\nIn response, the Village sent Mr. Warmbir a letter dated November 4, 2010 stating that it\npossessed a court order and three reports from the Village’s insurance carrier that were\nresponsive to his request, and that those documents were enclosed. The court order was the June\n23, 2010 order dismissing the Mayor of McCook as a party to Foster’s federal court action. The\nVillage’s letter further stated that, to the extent Mr. Warmbir sought records that are exempt\nfrom disclosure under Section 7(1)(m) of FOIA (5 ILCS 140/7(1)(m)), his request was denied.\nSection 7(1)(m) exempts from disclosure “[c]ommunications between a public body and an\nattorney or auditor representing the public body that would not be subject to discovery in\nlitigation, and materials prepared by or compiled by or for a public body in anticipation of a\ncriminal, civil, or administrative proceeding upon the request of an attorney advising the public\nbody, and materials prepared or compiled with respect to internal audits of public bodies.”\nMr. Warmbir then sent the Village an e-mail dated November 5, 2010 which stated that the\ndocuments he had received from the Village did not include a copy of the settlement agreement\nbetween Ms. Foster and the Village. The e-mail stated that, if Mr. Warmbir did not receive a\ncopy of the settlement agreement by 5:00 p.m. the following Monday (November 8, 2010), he\n2 See People v. One 1999 Lexus, VIN JT8BH68X2X0018305, 367 Ill. App. 3d 687, 690, 855 N.E.2d 194, 199 (2TM4\nDist. 2006) (judicial notice may be taken of court records); 5 ILCS 100/10-40 (West 2008) (codifying general\nprinciple that administrative agencies may take official notice of matters of which the circuit courts may take\n\nwould proceed accordingly. On November 9, 2010, Mr. Warmbir submitted a Request for\nReview to the Public Access Counselor.\nThis office issued a further inquiry letter to the Village on November 19, 2010. See 5 ILCS\n140/9.5(b). The further inquiry letter requested that the Village do four things. First, it requested\nthat the Village “state in writing whether a settlement agreement exists with regard to the\nlitigation between the Village and Margaret Foster.” Second it stated that, if such an agreement\nexists, “we ask the Village to explain in detail why it did not provide a copy of the settlement\nagreement to Mr. Warmbir.” Third, it asked “that the Village send this office a copy of the\nsettlement agreement.” Finally, it asked that, if “the Village believes that any portions of the\nsettlement agreement should be redacted because those portions contain information that is\nexempt from disclosure under Section 7 of FOIA, then it should specify those portions of the\nagreement and state the specific basis for its claim that those portions are exempt from\ndisclosure.”\nIn its December 2, 2010 response to the further inquiry letter, the Village stated that Ms. Foster’s\nlawsuit had been referred to the Illinois Municipal League Risk Management Association, which\ndefended the Village under the terms of an insurance policy. The Village then stated that the\ninsurance policy empowered the Association “to defend and settle the lawsuit without additional\ninput or approval from the Village.” The Village further stated that it does not “have a copy of\nany settlement agreement reached by the Association, on behalf of the Village, and Ms. Foster.”\nThe Village did not enclose a copy of the settlement agreement nor did it specify any portions\nthat should be redacted because they contain information thaits exempt under Section 7 of\nFOIA.\nOn December.14, 2010, Mr. Warmbir responded in writing to the Village’s response. See 5\nILCS 140/9.5(d). Mr. Warmbir noted that the Village had not disputed that there is a settlement\nagreement between Ms. Foster and the Village. Furthermore, the Village had not claimed in its\nresponse that any FOIA exemptions applied. Instead, the Village had stated that it does not\npossess the document, and its attorney does. The Village then sent this office a letter dated\nDecember 20, 2010 in which it responded to Mr. Warmbir. The Village stated that it had never\nclaimed that the settkement agreement sought by Mr. Warmbir was in the possession of an\nattorney representing the Village. The Village reiterated that the settlement agreement was\nprepared by the Illinois Municipal League Risk Management Association, which defended and\nsettled the lawsuit without the Village’s input and approval.\nAnalysis\nThe issue in this matter is whether FOIA requires the Village to disclose a copy of the settlement\nagreement that resolved the federal court litigation between Ms. Foster and the Village. Section\n2.20 of FOIA (5 ILCS 140/2.20) states that “[a]ll settlement agreements entered into by or on\nbehalf of a public body are public records subject to inspection and copying by the public,\n\nprovided that information exempt from disclosure under section 7 of this Act may be redacted.”\nThe cardinal rule of statutory construction is to determine and effectuate the legislature’s intent.\nAcme Markets, Inc. v. Callanan, 236 Ill. 2d 29, 37, 923 N.E.2d 718, 724 (2009). The best source\nof legislative intent is the plain and ordinary meaning of the statutory language. Callanan, 236\nIll. 2d at 37-38. When statutory language is plain and unambiguous, it must be applied as written\nwithout departing from the terms of the provision by reading in exceptions, limitations or\nconditions that conflict with the express legislative intent. Jd. at 38.\nSection 2.20 of FOIA plainly states that settlement agreements entered into by a public body or\non its behalf “are public records subject to inspection and copying by the public”. That clear,\nunambiguous statutory language must be enforced as written. Under Section 2.20, the Village\nmust make the settlement agreement requested by Mr. Warmbir available for inspection and\ncopying.\nThe Village’s asserted justifications for failing to make the settlement agreement available to Mr.\nWarmbir for inspection and copying are unavailing. The Village asserts that the settlement\nagreement is not in the Village’s possession. The Village further asserts that the Village’s\ninsurer, the Illinois Municipal League Risk Management Association, arranged the settlement\nagreement with Ms. Foster, and the Village had no input. But under the plain language of\nSection 2.20, “[a]ll settlement agreements entered into by or on behalf of a public body are\npublic records subject to inspection and copying by the public” subject to appropriate redactions\nunder Section 7 (emphasis added). Under this clear, unambiguous language, the settlement\nagreement is a public record that must be disclosed because it was entered into on the Village’s\nbehalf, even if the Village lacked input, and even if the Village does not currently possess the\ndocument. The Village cannot avoid compliance with the clear language of FOIA by declining\nto maintain in its files a copy of the settlement agreement entered into on its behalf.\nAside from the plain language of Section 2.20, a contrary result would have absurd consequences\nthat would be inconsistent with FOIA’s purpose of promoting the transparency and\naccountability of public bodies through access to public records. 5 ILCS 140/1. Courts in other\njurisdictions have observed that there is a strong public interest in disclosure of settlement\nagreements entered into by or on behalf of public bodies. See, e.g., Miami Herald Publ’g Co. v.\nCollazo, 329 So. 2d 333, 338 (Fla. App. 1976); Tribune-Review Publishing Co. v. Westmoreland\nCounty Housing Authority, 374 Pa. 661, 669-70, 833 A.2d 112, 117 (2003). As the\nPennsylvania Supreme Court stated, “[t]hose interests are: 1) the public’s right to know whether\na public official or employee has been charged with official misconduct and 2) the financial\nimpact upon the public of a litigation settlement that is paid either with public funds or with\ninsurance proceeds generated by publicly financed insurance premiums” which often influence\n\nLike the Village, the county housing authority in Tribune-Review Publishing Co. attempted to\njustify nondisclosure of a settlement agreement by arguing that it did not possess a copy of the\nagreement. Jd. In rejecting this argument, the court stated that, under the housing authority’s\nlogic, “any public entity could thwart disclosure required by the Act by having an attorney or an\ninsurer’s attorney prepare every writing that the public entity wishes to keep confidential.” Jd. at\n118. This would be an absurd result that is inconsistent with FOIA’s purpose of promoting the\ntransparency and accountability of public bodies through access to public records. 5 ILCS 140/1.\nThe relevant statutory provisions should be construed so as to avoid the absurd results suggested\nby the Village. See Burger v. Lutheran Gen’l Hospital, 198 Il. 2d 21, 59, 759 N.E.2d 533, 555\n(2001).\nAs noted above, Section 2.20 provides that “information exempt from disclosure under section 7\nof this Act may be redacted” from settlement agreements before public bodies disclose them to\nFOIA requesters. In its further inquiry letter of November 19, 2010, this office asked the Village\nto send it a copy of the settlement agreement and to specify any portions that should be redacted\nunder Section 7. The Village failed to do so, and it has thereby forfeited the opportunity to\nclaim that the agreement or any portion therof is exempt from disclosure.’\nAlthough the Village has not raised any Section 7 exemptions, we note that it is possible that the\nsettlement agreement contains private information about Ms. Foster, such as her social security\nnumber. Ms. Foster should not suffer the consequences of the Village’s failure to abide by the\ndirectives in this office’s further inquiry letter. Accordingly, the Village may redact from the\nsettlement agreement any private information of Ms. Foster that is exempt under Section 7(1)(b)\nof FOIA (5 ILCS 140/7(1)(b)), including her social security number, and her home address.\nFindings and Conclusions\nAfter full review and giving due consideration to the arguments of the parties, the Public Access\nCounselor’s findings, and the applicable law, the Attorney General finds that:\n3 In responding to Mr. Warmbir’s FOIA request, the Village appeared to claim that the settlement agreement was\nexempt under Section 7(1)(m) of FOIA (5 ILCS 140/7(1)am)), but it has made no such contention in response to his\nRequest for Review. Furthermore, any such assertion would be unavailing. Section 7(1)(m) exempts from\ndisclosure “[c]ommunications between a public body and an attorney or auditor representing the public body that\nwould not be subject to discovery in litigation, and materials prepared by or compiled by or for a public body in\nanticipation of a criminal, civil, or administrative proceeding upon the request of an attorney advising the public\nbody, and materials prepared or compiled with respect to internal audits of public bodies.” The Village contends\nthat the settlement agreement was reached without any input from the Village so it cannot possibly constitute a\ncommunication between the Village and its attorney. Further, the Village has made no showing that the settlement\n\n1). Mr. Warmbir’s Request for Review was timely filed and otherwise complies with Section 9.5\nof FOIA (5 ILCS 140/9.5). Therefore, the Attorney General may properly issue a binding\nopinion with respect to the disclosure of the record in issue.\n2). The Village has not produced to Mr. Warmbir for inspection or copying the requested\nsettlement agreement entered into by the Village or on the Village’s behalf with Ms. Margaret\nFoster with regard to the litigation in case number 09-CV-1325 filed by Ms. Foster in the United\nStates District Court for the Northern District of Illinois, Eastern Division.\n3). The Village has, as a matter of law, denied Mr. Warmbir’s FOIA requests by failing to\nfurnish the settlement agreement within the response period set forth in Section 3(d) of FOIA (5\nILCS 140/3(d)).\n4). The settlement agreement requested by Mr. Warmbir is a public record that the Village is\nrequired to produce to Mr. Warmbir for inspection and copying under Section 2.20 of FOIA (5\nILCS 140/2.20).\n5) Before producing the settlement agreement for inspection and copying by Mr. Warmbir, the\nVillage may redact any private information of Ms. Margaret Foster that is exempt from\ndisclosure under Section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b)).\nIn conclusion, it is the opinion of the Attorney General that the Village has, in violation of the\nrequirements of the Freedom of Information Act, improperly denied Mr. Warmbir’s request for\naccess to and/or a copy of the settlement agreement between the Village and Ms. Margaret Foster\nwith regard to the litigation in case number 09-CV-1325 filed by Ms. Foster in the United States\nDistrict Court for the Northern District of Illinois, Eastern Division. Accordingly, the Village is\ndirected to take immediate and appropriate action to comply with this opinion by furnishing the\nsettlement agreement to Mr. Warmbir. The Village may redact any private information of Ms.\nMargaret Foster that is exempt from disclosure under Section 7(1)(b) of FOIA (5 ILCS\n140/7(1)(b)).\nThis opinion shall be considered a final decision of an administrative agency for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. An\naggrieved party may obtain judicial review of the decision by filing a complaint for\nadministrative review in the Circuit Court of Cook or Sangamon County within 35 days of the\n\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nMichael J. Luke\nSenior Assistant Attorney General\nChief, Public Access and Opinions Division\ncc: Mr. Steve Warmbir\nChicago Sun-Times\n35 Orleans St.\nChicago, Illinois 60654\nMs. Amber Munday\nDel Galdo Law Group, LLC\n1441 South Harlem Ave.\nBerwyn, Illinois 60402"}
{"id":220,"orig_master_id":19421,"dup_master_id":19194,"dup_sha256":"5d5a529bdcd6cc34f77a06bcacde7a5053b9ce2ff9227f11ad32a316e039f67f","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-02-18","case_number":"2010 PAC 10242","request_numbers":null,"title":"Section 2.15 of FOIA Requires Disclosure of Arrest Reports.","filename":"PUBLIC ACCESS OPINION No. 11-001 (Request for Review - 2010 PAC 10242).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 11-001 (Request for Review - 2010 PAC 10242).pdf","word_count":2357,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for arrest records and a gunshot residue test report submitted by Mr. Flynard Miller to the Chicago Police Department.","plain_summary":"The requester, a member of the public, sought the arrest records of four named individuals and a gunshot residue test report, which a police department denied in full as protected criminal history information and an invasion of privacy. The Public Access Counselor held that section 2.15(a) of FOIA affirmatively requires disclosure of specified arrest and criminal history information, that neither cited state law prohibited disclosure, and that the strong public interest in arrest information outweighed any privacy interest. The department was directed to disclose the required arrest information, subject to permitted redactions of other private information; its denial of the gunshot residue report it did not possess was upheld.","holding":"Section 2.15 of FOIA requires disclosure of arrest reports.","legal_question":"Whether the Chicago Police Department is required to disclose arrest records under Section 2.15 of the Freedom of Information Act.","disposition":"violation_found","primary_statute":["5 ILCS 140/2.15"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Chicago Police Department","requesting_party":"Mr. Flynard Miller","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned the disclosure of arrest records and a gunshot residue test report.","ocr_status":"ok","ocr_quality":91.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-001.pdf","sha256":"b628d795bca7de469b3c61726474ed5b5d074b8c749df7f9a7534ad6b3674e19","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["police report","arrest records","FOIA","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nFebruary 18, 2011\nTerrence Collins\nOffice of Legal Affairs\nChicago Police Department\n[street address redacted for site publication -- see original PDF]\nPUBLIC ACCESS OPINION No. 11-001\n(Request for Review 2010 PAC 10242)\nFREEDOM OF INFORMATION ACT:\nSection 2.15 of FOIA Requires Disclosure of Arrest Reports.\nDear Mr. Collins:\nThis binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act\n(FOIA) (5 ILCS 140/9.5(£), added by Public Act 96-542, effective January 1, 2010).\nBackground\nOn September 22, 2010, Mr. Flynard Miller submitted a FOIA request to the Chicago Police\nDepartment seeking a copy of the arrest records of four named individuals and the gunshot\nresidue test report for one of those named individuals. On September 24, 2010, the Department\ndenied this request and stated:\nThe requested records are criminal history records that do not meet any of the\nthree criteria for disclosure as outlined in 5 ILCS 140/2.15(b). The three criteria\nfor disclosure are as follows:\n(i) court records that are public;\n(ii) __ records that are otherwise available; or\n(iii) records in which the requesting party is the individual identified,\nexcept as provided under Section 7(1)(d)(vi).\n500 South Second Street, Springfield, Illinois 62706 © (217) 782-1090 * TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 © TTY: (800) 964-3013 * Pax: (312) 814-3806\n1001 East Main, Carbondale, Hlinois 62901 © (618) 529-6400 © TTY: (877) 675-9339 * Fax: (618) 529-6416\nPO\nChicago Police Department\nFebruary 18, 2011\nPage 2\nThe Department denied the request for the gunshot residue test report, stating that the\nDepartment does not possess any records responsive to this request and that this report would\nlikely be in the possession of the Illinois State Police Crime Lab.\nIn a letter dated October 5, 2010, Mr. Miller requested that the Public Access Counselor review\nthe Department’s denial of his FOIA request. This letter did not include a copy of his original\nFOIA request or the Department’s response to that request. FOIA requires that Requests for\nReview include a copy of the original request and any responses from the public body (5 ILCS\n140/9.5(a)), and therefore we informed Mr. Miller that we could not analyze his Request for\nReview until we received a copy of his original request and the Department’s response. On\nNovember 22, 2010, we received these copies from Mr. Miller. Because we received his\ncomplete Request for Review within 60 days of the Department’s denial of his FOIA request,\nMr. Miller’s Request for Review was timely filed.\nOn December 13, 2010, we determined that further inquiry was warranted and forwarded the\nRequest for Review to the Department. See 5 ILCS 140/9.5(c). This correspondence noted that\nSection 2.15(b) of FOIA does not contain an exemption to FOIA’s disclosure requirement.\nRather, it provides only for disclosure of certain categories of criminal history records. We also\nasked the Department for a detailed explanation of its basis for withholding these records.\nIn its response, dated January 11, 2011, the Department argued that arrest reports are “criminal\nhistory records,” and that “under 5 ILCS 140/2.15(b)(iii), criminal history records will only be\ndisclosed to an individual if the requesting party is the individual identified in the record.” Thus,\nthe Department denied the request because Mr. Miller is not the individual identified in the\nreports that he requested. The Department stated that “an individual identified in an arrest report\nmay later be acquitted of the crime and should be afforded the right to privacy. The public’s\ninterest in such an instance does not outweigh that of the individual.”\nThe Department also argues that the arrest reports are exempt from disclosure under Section\n7(1)(a) of FOIA, which exempts “[i]nformation specifically prohibited from disclosure by\nfederal or State law or rules and regulations implementing federal or State law.” The\nDepartment argues that the Criminal Identification Act (20 ILCS 2630/0.01 to 2630/14) and the\nIllinois Uniform Conviction Information Act (20 ILCS 2635/1) prohibit disclosure of these\nrecords. Finally, the Department asserts that these records are exempt under Section 7(1)(c) of\nFOIA, which exempts “[p]ersonal information contained within public records, the disclosure of\nwhich would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure\nis consented to in writing by the individual subjects of the information.” 5 ILCS 140/7(1)(c).\nAnalysis\nFOIA provides that “[e]ach public body shall make available to any person for inspection or\ncopying all public records, except as otherwise provided in Section 7 of [the] Act.” 5 ILCS\n140/3(a). Section 7 of FOIA contains exemptions to the Act’s general disclosure requirement,\nbut these exemptions are to be narrowly construed. 5 ILCS 140/1. The Act states that “[a]ll\nrecords in the custody or possession of a public body are presumed to be open to inspection or\nChicago Police Department\nFebruary 18, 2011\nPage 3\ncopying” and that “[a]ny public body that asserts that a record is exempt from disclosure has the\nburden of proving by clear and convincing evidence that it is exempt.” 5 ILCS 140/1.2. The\nDepartment has not met this burden.\nArrest Records are Not Exempt Under Section 7(1)(a) of FOIA.\nWe first address the Department’s argument that the Criminal Identification Act and the Illinois\nUniform Conviction Information Act specifically prohibit the Department from disclosing these\narrest reports. The Criminal Identification Act provides: “No file or record of the Department\nhereby created shall be made public, except as provided in the ‘Illinois Uniform Conviction\nInformation Act’ or other Illinois law... and no information of any character relating to its\nrecords shall be given or furnished by said Department to any person, bureau or institution other\nthan as provided in this Act or other State law. ...” 20 ILCS 2630/7. For the purposes of the\nCriminal Identification Act, “Department” refers to the Department of State Police. 20 ILCS\n2630/1. Based on its plain language, Section 7 of the Criminal Identification Act applies to the\nDepartment of State Police, not the Chicago Police Department. Even if this provision did apply\nto the Department, it does not prohibit disclosure of information when other Illinois law provides\nfor disclosure. The Freedom of Information Act is “other Illinois law” that provides for\ndisclosure of arrest reports.\nSection 2.15(a) of FOIA provides:\nArrest reports. The following chronologically maintained arrest and criminal\nhistory information maintained by State or local criminal justice agencies shall be\nfurnished as soon as practical, but in no event later than 72 hours after the arrest,\nnotwithstanding the time limits otherwise provided for in Section 3 of this Act:\n(i) information that identifies the individual, including the name, age, address, and\nphotograph, when and if available; (ii) information detailing any charges relating\nto the arrest; (iii)the time and location of the arrest; (iv) the name of the\ninvestigating or arresting law enforcement agency; (v)if the individual is\nincarcerated, the amount of any bail or bond; and (vi)if the individual is\nincarcerated, the time and date that the individual was received into, discharged\nfrom, or transferred from the arresting agency’s custody. 5 ILCS 140/2.15(a).\nBecause this section of FOIA requires disclosure of specific arrest and criminal history\ninformation, Section 7 of the Criminal Identification Act does not prohibit disclosure of this\ninformation. While Section 13(c) of the Criminal Identification Act provides that sealed or\nimpounded records are exempt from disclosure under FOIA (20 ILCS 2630/13(c)), the\nDepartment has not asserted that these records are sealed or impounded. Nothing else in the\nCriminal Identification Act prohibits local law enforcement agencies from disclosing records.\nWe could find nothing in the Illinois Uniform Conviction Information Act (the Act) that\nprohibits the Department from disclosing arrest records, and the Department has not identified\nany specific section of the Act that it claims applies here. Rather, Section 23(C) of the Act\nprovides that “[nJothing in this Act shall be construed as restricting or prohibiting... the\nChicago Police Department\nFebruary 18, 2011\nPage 4\ndissemination of local criminal history record information maintained by criminal justice\nagencies on behalf of units of local government to members of the general public requesting such\ninformation.” 20 ILCS 2635/23(C). Thus, the Act makes clear that it does not prohibit the\nDepartment from providing arrest records to members of the general public. Because neither the\nCriminal Identification Act nor the Illinois Uniform Conviction Act specifically prohibit the\nDepartment from disclosing arrest records, and the Department has not identified any other\nstatute or rule that prohibits disclosure of arrest records, the Department has failed to establish\nthat these arrest records are exempt from disclosure under Section 7(1)(a) of FOIA.\nSection 2.15 of FOIA requires disclosure of arrest records.\nThe Department further asserts that Section 2.15(b) allows the Department to withhold the arrest\nrecords that Mr. Miller requested. Section 2.15(b) states:\n(b) Criminal history records. The following documents maintained by a public body\npertaining to criminal history record information are public records subject to\ninspection and copying by the public pursuant to this Act: (i) court records that\nare public; (ii) records that are otherwise available under State or local law; and\n(iit) records in which the requesting party is the individual identified, except as\nprovided under Section 7(1)(d)(vi). 5 ILCS 140/2.15(b).\nThe Department asserts that criminal history records, including arrest reports, may only be\nreleased if they fit into one of the categories in subsections (i), (ii) and (iii) of this section.\nSection 2.15(b), however, does not contain the word “only” or any other language limiting the\nrelease of criminal history records. Instead, the plain language of this section mandates\ndisclosure of records in specific circumstances. Nothing in this section allows public bodies to\nwithhold information. When the language of a statute is clear and unambiguous, it must be\napplied as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Based on its plain language,\nSection 2.15(b) does not allow the Department to withhold the requested arrest records.\nArrest records are not exempt under Section 7(1)(c) of FOIA.\nFinally, the Department asserts that all of the requested arrest records are exempt under Section\n7(1)(c) of FOIA, which exempts from inspection and copying “[p]ersonal information contained\nwithin public records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.” 5 ILCS 140/7(1)(c). The exemption defines “unwarranted invasion of personal\nprivacy” as the “disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject’s right to privacy outweighs any legitimate public interest in\nobtaining the information.” Jd.\nThe fact of an arrest and the circumstances surrounding an arrest may be highly personal to the\nindividuals involved. Section 2.15(a) of FOIA, however, requires State and local criminal justice\nagencies to disclose certain arrest and criminal history information notwithstanding such\nconcerns. This Section of FOIA clearly reflects the legislature’s recognition of a public interest\nChicago Police Department\nFebruary 18, 2011\nPage 5\nin disclosure of information regarding arrests. This strong public interest outweighs the\nindividuals’ right to privacy in this information. Because the Department has not met its burden\nto establish that the privacy interests of these arrested individuals outweigh the public interest in\ndisclosure, the types of information listed in Section 2.15(a) of FOIA are not exempt from\ndisclosure under Section 7(1)(c) of FOIA and must be released.\nThe Department’s Denial of Mr. Miller’s Request for a Gunshot Residue Test Report was\nPermissible.\nIn response to Mr. Miller’s request for a gunshot residue test report, the Department stated that it\ndoes not possess such a report. FOIA does not require public bodies to create or maintain\nrecords that they would not otherwise create or maintain. See 5 ILCS 140/1. As a result, the\nDepartment’s denial of the request for the gunshot residue test report was clearly permissible.\nFindings and Conclusions\n1) Mr. Miller’s Request for Review was timely filed and otherwise complies with Section 9.5(a)\nof FOIA (5 ILCS 140/9.5(a)). This Office received Mr. Miller’s complete Request for\nReview on November 22, 2010, and properly extended the deadline in which to issue a\nbinding opinion by 21 business days until February 23, 2011. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to the disclosure of the requested\narrest records.\n2) Neither the Criminal Identification Act nor the Illinois Uniform Conviction Information Act\nspecifically prohibits the Department from releasing the requested arrest records. Therefore,\nthe Department has failed to prove by clear and convincing evidence that the arrest records\nare exempt from disclosure under Section 7(1)(a) of FOIA.\n3) Section 2.15(a) of FOIA requires State and local criminal justice agencies to release certain\ntypes of information related to arrests. Section 2.15(b) does not allow public bodies to\nwithhold arrest records.\n4) Arrest records are not exempt from disclosure under Section 7(1)(c) of FOIA.\nIn conclusion, it is the opinion of the Attorney General that the Department has violated FOIA\nby improperly denying Mr. Miller’s request for arrest records. Accordingly, the Department\nmust provide to Mr. Miller copies of the requested arrest records without redacting the\ninformation that Section 2.15(a) of FOIA requires be released. The Department may redact other\nprivate information in those records that is exempt under Section 7(1)(b) of FOIA (5 ILCS\n140/7(1)(b)). Under Section 9.5(f) of FOIA, the Department must either immediately comply\nwith this binding opinion or initiate administrative review under Section 11.5 of FOIA.\nThis opinion shall be considered a final decision of an administrative agency for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 4/3-101 et seg. An\naggrieved party may obtain judicial review of the decision by filing a complaint for\nChicago Police Department\nFebruary 18, 2011\nPage 6\nadministrative review in the Circuit Court of Cook or Sangamon County within 35 days of the\ndate of the decision naming the Attorney General of Illinois and Mr. Flynard Miller as\ndefendants. See 5 ILCS 140/11.5.\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nBy:\nMichael J. Luke\nSenior Assistant Attorney General\nChief, Public Access and Opinions Division\nce: Flynard Miller R25894\nP.O. Box 112\nJoliet, IL 60434","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Mr. Flynard Miller requested arrest records and a gunshot residue test report from the Chicago Police Department, which the Department denied. The Public Access Counselor of the Illinois Attorney General's office issued a binding opinion finding that the Department had not met its burden to prove the arrest records were exempt from disclosure under FOIA, and that Section 2.15 of FOIA requires disclosure of arrest reports. The opinion did not address redaction of private information.","card_headline":"Arrest records and a gunshot residue test report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2010-pac-10242/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act\n(FOIA) (5 ILCS 140/9.5(£), added by Public Act 96-542, effective January 1, 2010).\nBackground\nOn September 22, 2010, Mr. Flynard Miller submitted a FOIA request to the Chicago Police\nDepartment seeking a copy of the arrest records of four named individuals and the gunshot\nresidue test report for one of those named individuals. On September 24, 2010, the Department\ndenied this request and stated:\nThe requested records are criminal history records that do not meet any of the\nthree criteria for disclosure as outlined in 5 ILCS 140/2.15(b). The three criteria\nfor disclosure are as follows:\n\nThe Department denied the request for the gunshot residue test report, stating that the\nDepartment does not possess any records responsive to this request and that this report would\nlikely be in the possession of the Illinois State Police Crime Lab.\nIn a letter dated October 5, 2010, Mr. Miller requested that the Public Access Counselor review\nthe Department’s denial of his FOIA request. This letter did not include a copy of his original\nFOIA request or the Department’s response to that request. FOIA requires that Requests for\nReview include a copy of the original request and any responses from the public body (5 ILCS\n140/9.5(a)), and therefore we informed Mr. Miller that we could not analyze his Request for\nReview until we received a copy of his original request and the Department’s response. On\nNovember 22, 2010, we received these copies from Mr. Miller. Because we received his\ncomplete Request for Review within 60 days of the Department’s denial of his FOIA request,\nMr. Miller’s Request for Review was timely filed.\nOn December 13, 2010, we determined that further inquiry was warranted and forwarded the\nRequest for Review to the Department. See 5 ILCS 140/9.5(c). This correspondence noted that\nSection 2.15(b) of FOIA does not contain an exemption to FOIA’s disclosure requirement.\nRather, it provides only for disclosure of certain categories of criminal history records. We also\nasked the Department for a detailed explanation of its basis for withholding these records.\nIn its response, dated January 11, 2011, the Department argued that arrest reports are “criminal\nhistory records,” and that “under 5 ILCS 140/2.15(b)(iii), criminal history records will only be\ndisclosed to an individual if the requesting party is the individual identified in the record.” Thus,\nthe Department denied the request because Mr. Miller is not the individual identified in the\nreports that he requested. The Department stated that “an individual identified in an arrest report\nmay later be acquitted of the crime and should be afforded the right to privacy. The public’s\ninterest in such an instance does not outweigh that of the individual.”\nThe Department also argues that the arrest reports are exempt from disclosure under Section\n7(1)(a) of FOIA, which exempts “[i]nformation specifically prohibited from disclosure by\nfederal or State law or rules and regulations implementing federal or State law.” The\nDepartment argues that the Criminal Identification Act (20 ILCS 2630/0.01 to 2630/14) and the\nIllinois Uniform Conviction Information Act (20 ILCS 2635/1) prohibit disclosure of these\nrecords. Finally, the Department asserts that these records are exempt under Section 7(1)(c) of\nFOIA, which exempts “[p]ersonal information contained within public records, the disclosure of\nwhich would constitute a clearly unwarranted invasion of personal privacy, unless the disclosure\nis consented to in writing by the individual subjects of the information.” 5 ILCS 140/7(1)(c).\nAnalysis\nFOIA provides that “[e]ach public body shall make available to any person for inspection or\ncopying all public records, except as otherwise provided in Section 7 of [the] Act.” 5 ILCS\n140/3(a). Section 7 of FOIA contains exemptions to the Act’s general disclosure requirement,\nbut these exemptions are to be narrowly construed. 5 ILCS 140/1. The Act states that “[a]ll\nrecords in the custody or possession of a public body are presumed to be open to inspection or\n\ncopying” and that “[a]ny public body that asserts that a record is exempt from disclosure has the\nburden of proving by clear and convincing evidence that it is exempt.” 5 ILCS 140/1.2. The\nDepartment has not met this burden.\nArrest Records are Not Exempt Under Section 7(1)(a) of FOIA.\nWe first address the Department’s argument that the Criminal Identification Act and the Illinois\nUniform Conviction Information Act specifically prohibit the Department from disclosing these\narrest reports. The Criminal Identification Act provides: “No file or record of the Department\nhereby created shall be made public, except as provided in the ‘Illinois Uniform Conviction\nInformation Act’ or other Illinois law... and no information of any character relating to its\nrecords shall be given or furnished by said Department to any person, bureau or institution other\nthan as provided in this Act or other State law....” 20 ILCS 2630/7. For the purposes of the\nCriminal Identification Act, “Department” refers to the Department of State Police. 20 ILCS\n2630/1. Based on its plain language, Section 7 of the Criminal Identification Act applies to the\nDepartment of State Police, not the Chicago Police Department. Even if this provision did apply\nto the Department, it does not prohibit disclosure of information when other Illinois law provides\nfor disclosure. The Freedom of Information Act is “other Illinois law” that provides for\ndisclosure of arrest reports.\nSection 2.15(a) of FOIA provides:\nArrest reports. The following chronologically maintained arrest and criminal\nhistory information maintained by State or local criminal justice agencies shall be\nfurnished as soon as practical, but in no event later than 72 hours after the arrest,\nnotwithstanding the time limits otherwise provided for in Section 3 of this Act:\n(i) information that identifies the individual, including the name, age, address, and\nphotograph, when and if available; (ii) information detailing any charges relating\nto the arrest; (iii)the time and location of the arrest; (iv) the name of the\ninvestigating or arresting law enforcement agency; (v)if the individual is\nincarcerated, the amount of any bail or bond; and (vi)if the individual is\nincarcerated, the time and date that the individual was received into, discharged\nfrom, or transferred from the arresting agency’s custody. 5 ILCS 140/2.15(a).\nBecause this section of FOIA requires disclosure of specific arrest and criminal history\ninformation, Section 7 of the Criminal Identification Act does not prohibit disclosure of this\ninformation. While Section 13(c) of the Criminal Identification Act provides that sealed or\nimpounded records are exempt from disclosure under FOIA (20 ILCS 2630/13(c)), the\nDepartment has not asserted that these records are sealed or impounded. Nothing else in the\nCriminal Identification Act prohibits local law enforcement agencies from disclosing records.\nWe could find nothing in the Illinois Uniform Conviction Information Act (the Act) that\nprohibits the Department from disclosing arrest records, and the Department has not identified\nany specific section of the Act that it claims applies here. Rather, Section 23(C) of the Act\nprovides that “[nJothing in this Act shall be construed as restricting or prohibiting... the\n\ndissemination of local criminal history record information maintained by criminal justice\nagencies on behalf of units of local government to members of the general public requesting such\ninformation.” 20 ILCS 2635/23(C). Thus, the Act makes clear that it does not prohibit the\nDepartment from providing arrest records to members of the general public. Because neither the\nCriminal Identification Act nor the Illinois Uniform Conviction Act specifically prohibit the\nDepartment from disclosing arrest records, and the Department has not identified any other\nstatute or rule that prohibits disclosure of arrest records, the Department has failed to establish\nthat these arrest records are exempt from disclosure under Section 7(1)(a) of FOIA.\nSection 2.15 of FOIA requires disclosure of arrest records.\nThe Department further asserts that Section 2.15(b) allows the Department to withhold the arrest\nrecords that Mr. Miller requested. Section 2.15(b) states:\n(b) Criminal history records. The following documents maintained by a public body\npertaining to criminal history record information are public records subject to\ninspection and copying by the public pursuant to this Act: (i) court records that\nare public; (ii) records that are otherwise available under State or local law; and\n(iit) records in which the requesting party is the individual identified, except as\nprovided under Section 7(1)(d)(vi). 5 ILCS 140/2.15(b).\nThe Department asserts that criminal history records, including arrest reports, may only be\nreleased if they fit into one of the categories in subsections (i), (ii) and (iii) of this section.\nSection 2.15(b), however, does not contain the word “only” or any other language limiting the\nrelease of criminal history records. Instead, the plain language of this section mandates\ndisclosure of records in specific circumstances. Nothing in this section allows public bodies to\nwithhold information. When the language of a statute is clear and unambiguous, it must be\napplied as written. DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006). Based on its plain language,\nSection 2.15(b) does not allow the Department to withhold the requested arrest records.\nArrest records are not exempt under Section 7(1)(c) of FOIA.\nFinally, the Department asserts that all of the requested arrest records are exempt under Section\n7(1)(c) of FOIA, which exempts from inspection and copying “[p]ersonal information contained\nwithin public records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.” 5 ILCS 140/7(1)(c). The exemption defines “unwarranted invasion of personal\nprivacy” as the “disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject’s right to privacy outweighs any legitimate public interest in\nobtaining the information.” Jd.\nThe fact of an arrest and the circumstances surrounding an arrest may be highly personal to the\nindividuals involved. Section 2.15(a) of FOIA, however, requires State and local criminal justice\nagencies to disclose certain arrest and criminal history information notwithstanding such\nconcerns. This Section of FOIA clearly reflects the legislature’s recognition of a public interest\n\nin disclosure of information regarding arrests. This strong public interest outweighs the\nindividuals’ right to privacy in this information. Because the Department has not met its burden\nto establish that the privacy interests of these arrested individuals outweigh the public interest in\ndisclosure, the types of information listed in Section 2.15(a) of FOIA are not exempt from\ndisclosure under Section 7(1)(c) of FOIA and must be released.\nThe Department’s Denial of Mr. Miller’s Request for a Gunshot Residue Test Report was\nPermissible.\nIn response to Mr. Miller’s request for a gunshot residue test report, the Department stated that it\ndoes not possess such a report. FOIA does not require public bodies to create or maintain\nrecords that they would not otherwise create or maintain. See 5 ILCS 140/1. As a result, the\nDepartment’s denial of the request for the gunshot residue test report was clearly permissible.\nFindings and Conclusions\n1) Mr. Miller’s Request for Review was timely filed and otherwise complies with Section 9.5(a)\nof FOIA (5 ILCS 140/9.5(a)). This Office received Mr. Miller’s complete Request for\nReview on November 22, 2010, and properly extended the deadline in which to issue a\nbinding opinion by 21 business days until February 23, 2011. Therefore, the Attorney\nGeneral may properly issue a binding opinion with respect to the disclosure of the requested\narrest records.\n2) Neither the Criminal Identification Act nor the Illinois Uniform Conviction Information Act\nspecifically prohibits the Department from releasing the requested arrest records. Therefore,\nthe Department has failed to prove by clear and convincing evidence that the arrest records\nare exempt from disclosure under Section 7(1)(a) of FOIA.\n3) Section 2.15(a) of FOIA requires State and local criminal justice agencies to release certain\ntypes of information related to arrests. Section 2.15(b) does not allow public bodies to\nwithhold arrest records.\n4) Arrest records are not exempt from disclosure under Section 7(1)(c) of FOIA.\nIn conclusion, it is the opinion of the Attorney General that the Department has violated FOIA\nby improperly denying Mr. Miller’s request for arrest records. Accordingly, the Department\nmust provide to Mr. Miller copies of the requested arrest records without redacting the\ninformation that Section 2.15(a) of FOIA requires be released. The Department may redact other\nprivate information in those records that is exempt under Section 7(1)(b) of FOIA (5 ILCS\n140/7(1)(b)). Under Section 9.5(f) of FOIA, the Department must either immediately comply\nwith this binding opinion or initiate administrative review under Section 11.5 of FOIA.\nThis opinion shall be considered a final decision of an administrative agency for the purposes of\n\nadministrative review in the Circuit Court of Cook or Sangamon County within 35 days of the\ndate of the decision naming the Attorney General of Illinois and Mr. Flynard Miller as\ndefendants. See 5 ILCS 140/11.5.\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nBy:\nMichael J. Luke\nSenior Assistant Attorney General\nChief, Public Access and Opinions Division\nce: Flynard Miller R25894\nP.O. Box 112\nJoliet, IL 60434"}
{"id":221,"orig_master_id":19419,"dup_master_id":19195,"dup_sha256":"dbc897edb205f5b436f87025acf9e7323d1245bfdcea049b6c5d3e713e795d4c","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2010-10-22","case_number":"2010 PAC 8890","request_numbers":null,"title":"Autopsy Reports","filename":"PUBLIC ACCESS OPINION No. 10-003 (Request for Review 2010 PAC 8890, 9217).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 10-003 (Request for Review 2010 PAC 8890, 9217).pdf","word_count":6475,"summary":"This document is a Public Access Opinion regarding a Freedom of Information Act request for autopsy reports related to the suicides of Christopher Kelly and Michael W. Scott. It addresses the binding opinion issued by the Attorney General's office on the matter.","plain_summary":"The requesters, newspaper reporters, sought the county medical examiner's autopsy reports, records, and photographs concerning the suicides of two prominent public figures, and the county sought to withhold all of the records as an unwarranted invasion of personal privacy. The Public Access Counselor held that the autopsy reports, supporting documents, and photographs of physical evidence were not exempt, but that graphic post-mortem photographs of the decedents' bodies would constitute a clearly unwarranted invasion of the surviving families' privacy. The county was directed to disclose the documents, reports, and physical-evidence photographs, but not the post-mortem photographs of the bodies.","holding":"The Attorney General's binding opinion requires the public body to either take necessary action immediately to comply with the directive of the opinion or initiate administrative review under Section 11.5 of FOIA.","legal_question":"Whether the autopsy reports requested under the Freedom of Information Act are subject to disclosure.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Cook County Medical Examiner","requesting_party":"Chris Fusco (Chicago Sun-Times) and Anne Sweeney (Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The disclosure of autopsy reports for high-profile individuals who died by suicide.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2010-Binding-PAC-Opinions/2010-003.pdf","sha256":"0a81972fa1ff96f4d5ac5861640165fa2a42bd69b4bd4d5b055d21a0a14dd516","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["autopsy reports","privacy exemption","public interest","medical examiner","FOIA"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL\nOctober 22, 2010\nPUBLIC ACCESS OPINION No. 10-003\n(Request for Review 2010 PAC 8890, 9217)\nFREEDOM OF INFORMATION ACT:\nAutopsy Reports\nMr. Richard Velasquez\nSpecial Counsel to the President\nFreedom of Information Act Officer\nGeorge Dunne, Cook County Administration Building\n[street address redacted for site publication -- see original PDF]\nDear Mr. Velasquez:\nThis binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (5\nILCS 140/9.5(f), added by Public Act 96-542, effective January 1, 2010).\nBackground\nOn September 12, 2009, Christopher Kelly, a businessman and fundraiser for former Governor\nRod Blagojevich, committed suicide. In an unrelated case, on November 16, 2009, Michael W.\nScott, the president of the Chicago Board of Education, committed suicide. The Office of the\nCook County Medical Examiner (Medical Examiner) conducted post-mortem inquiries into the\ncircumstances surrounding their deaths.’\nOn January 4, 2010, Chris Fusco, a reporter for the Chicago Sun-Times (referred to collectively\nas the Sun-Times), e-mailed a Freedom of Information Act (FOIA) request to Cook County\nseeking to inspect “all reports/documents/records [and] photographs regarding two cases the\nCook County Medical Examiner is believed to have closed.” Specifically, Mr. Fusco sought\n' For purposes of this Opinion, the term “County” includes both the Medical Examiner and Cook County, as the\ncontext requires,\n500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 2\naccess to “records [related to] the suicide of Christopher G. Kelly, deceased on Sept. 12, 2009”\nand “the suicide of Michael W. Scott, deceased on November 16, 2009.” On January 5, 2010,\nthe County submitted to the Public Access Counselor a document entitled “§ 9.5(b) Notice of\nIntent to Deny Pursuant to the § 7(1)(c) Privacy Exemption” (Notice of Intent to Deny) with\nregard to the Sun-Times request. Section 9.5(b) of FOIA (5 ILCS 140/9.5(b), added by Public\nAct 96-542, effective January 1, 2010), requires a public body that receives a request for records\nand asserts that the records are exempt from disclosure under, inter alia, Section 7(1)(c) of\nFOIA, to provide written notice of its intention to deny the request in whole or in part to both the\nrequester and the Public Access Counselor. At the request of the Public Access Counselor, the\n_ County supplemented its notice with copies of 24 documents” and 23 photographs from the\nMedical Examiner’s records relating to the investigation of Mr. Kelly, and 22 documents? and 17\nphotographs relating to the investigation of Mr. Scott, which the County proposed to withhold\nfrom disclosure.\nOn February 1, 2010, Anne M. Sweeney, a reporter for the Chicago Tribune (referred to\ncollectively as the Tribune), e-mailed a FOIA request to the County seeking copies of “any\ndocuments produced by the Special Counsel regarding any and all reports and documentation of\nthe Michael Scott death investigation examination and autopsy” and “of any intent to deny\nFreedom of Information requests from any other news outlet.” Ms. Sweeney sent a second e-\nmail to the County regarding Mr. Kelly’s autopsy. On February 3, 2010, the County provided\nBrendan J. Healey, Tribune Senior Counsel, with an electronic copy of the County’s notice to the\nSun-Times, which set out the County’s intention to deny media access to the Medical Examiner’s\nrecords relating to the deaths of Mr. Kelly and Mr. Scott.\nOn February 17, 2010, Ms. Sweeney sent an e-mail to the County attaching copies of two FOIA\nrequest letters. The first letter “seeks the autopsy/examination report related to the examination\nof Michael Scott, including but not limited to the First Call Sheet, Intake Sheet, Release\nDocuments, Investigator’s Report, Toxicology Report, Autopsy Report, Histology Report, letters\nor communications from the family, police or insurance companies, and photographs.” The\nsecond letter requests the same information related to the death of Mr. Kelly.\nOn February 25, 2010, the County submitted to the Public Access Counselor a second Notice of\nIntent to Deny, in this case asserting that the documents requested by the Tribune were also\nexempt from disclosure under Section 7(1)(c) of FOIA.\n* The documents in the County’s first supplemental production to this Office, which relate to Mr. Kelly consist of\nthe following: the First Call Sheet; a personal effects inventory; the deceased remains transportation report; the\nmedical examiner’s case checklist; the authorization for release and removal; the medical examiner case report; the\nreport of the postmortem examination; the results of toxicological analyses; and police reports.\n* The documents in the County’s second supplemental production to this Office, which relate to Mr. Scott, consist of\nthe following: the First Call Sheet; the deceased remains transportation report; the medical examiner’s case\nchecklist; a personal effects inventory; an identification certification; the authorization for release; the medical\nexaminer case report; the report of the postmortem examination; the results of toxicological analyses; the police\nreports; and a letter from the attorney for the Scott family.\n500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 «© TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 « Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 3\nSection 7(1)(c) (5 ILCS 140/7(1)(c), as amended by Public Act 96-542, effective January 1,\n2010) exempts from inspection and copying “[p]ersonal information contained within public\nrecords, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy, unless disclosure is consented to in writing by the individual subjects of the\ninformation.” The exemption defines “[u]nwarranted invasion of personal privacy” as “the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject’s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.” /d.\nOn June 4, 2010, and following review of the documents and photographs tendered by the\nMedical Examiner, the Public Access Counselor responded to the County’s Notice of Intent to\nDeny, granting in part and denying in part the County’s request to withhold these records and\nphotographs pursuant to Section 7(1)(c). Specifically, the Public Access Counselor denied the\nCounty’s request to withhold the autopsy reports and the accompanying documents for Mr. Kelly\nand Mr. Scott, as well as photographs of the physical evidence contained in the Medical\nExaminer’s file relating to the death of Mr. Kelly, but approved the County’s request to withhold\nthe post-mortem photographs depicting the bodies of Mr. Kelly and Mr. Scott.\" A copy of the\nPublic Access Counselor’s response is attached as Exhibit A and is incorporated herein by\nreference.\nOn August 3, 2010, Mr. Fusco informed this Office that the County had yet to supply him with\nthe autopsy reports, documents and the photographs of the physical evidence contained in the\nMedical Examiner’s files or to provide him with a formal denial of his FOIA request. On August\n20, 2010, Mr. Healey informed this Office that he likewise had received no records in response\nto his request. A failure to comply with a FOIA request within the requisite time period is\nconsidered a denial of the request. (5 ILCS 140/3(d), as amended by Public Act 96-542,\neffective January 1, 2010.) Although the time for a public body to respond to a FOIA request is\n_ tolled until the Public Access Counselor concludes his or her review of a notice of intent to deny\ndisclosure, the time for the County to respond had clearly lapsed by August 3 and 20, 2010.\nSection 9.5 of FOIA (5 ILCS 140/9.5, added by Public Act 96-542, effective January 1, 2010),\nprovides that a person whose request to inspect or copy a public record has been denied by a\npublic body may, no later than 60 days after the date of the final denial, file a written request for\nreview by the Public Access Counselor. Upon determining that further action is warranted, the\nAttorney General, acting through the Public Access Counselor, shall examine the issues and\nrecords, make findings of fact and conclusions of law, and issue a binding opinion to the\nrequester and the public body. Upon receipt of a binding opinion requiring the public body to\ndisclose records, “the public body shall either take necessary action immediately to comply with\nthe directive of the opinion or shall initiate administrative review under Section 11.5 of FOIA” (5\nILCS 140/11.5, added by Public Act 96-542, effective January 1, 2010).\nThis Office initiated further review with regard to the Sun-Times request on August 20, 2010 and\nwith regard to the Tribune request on August 25, 2010. On September 20, 2010, this Office sent\n* Unlike the file in Mr. Kelly’s case, the County provided this Office with no photographs of physical evidence\nrelating to Mr. Scott’s death. All photographs related to Mr. Scott depict Mr. Scott’s body post-mortem.\n500 South Second Street, Springfield, linois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Ilinois 62901 * (618) 529-6400 * TTY: (618) 529-6403 ¢ Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 4\na 21-day extension letter to the County pursuant to Section 9.5(f) of FOIA (5 ILCS 140/9.5(f),\nadded by Public Act 96-542, effective January 1, 2010) and forwarded the County’s response to\nboth the Tribune and the Sun-Times.\nSection 9.5(d) of the Freedom of Information Act (5 ILCS 140/9.5(d), added by Public Act 96-\n542, effective January 1, 2010) provides:\nWithin 7 working days after it receives a copy of a request for review and\nrequest for production of records from the Public Access Counselor’, the public\nbody may, but is not required to, answer the allegations of the request for review.\nThe answer may take the form of a letter, brief, or memorandum. The Public\nAccess Counselor shall forward a copy of the answer to the person submitting the\nrequest for review, with any alleged confidential information to which the request\npertains redacted from the copy. The requester may, but is not required to,\nrespond in writing to the answer within 7 working days and shall provide a copy\nof the response to the public body.\nThe County responded to the allegations in correspondence dated September 15, 2010. The\nCounty noted the following with regard to the Medical Examiner’s records relating to Mr. Scott\nand Mr. Kelly:\n[Tjhe County makes the standing argument that the Chicago Sun-Times and the\nChicago Tribune do not have a public interest greater than the interest in the privacy\nwhich the Scott and Kelly families have in the documents which are listed below as the\ninformation contained on the listed document do not shed light, whatsoever, on the\nworkings of government, but rather only provide information concerning Mr. Scott and\nMr. Kelly. Put another way, the private information contained in the following\ndocuments is not relevant to any function the County or any other public body. Just the\nsame, the Chicago Sun-Times and the Chicago Tribune have not expressed the basis of\nthe “legitimate public interest,” and merely contend that a public interest exists. Further,\nthe County’s review of the documents at issue has not been for the purpose of\ncommunicating the presence of private information which is exempt pursuant to Section\n7(1)(b); the County reserves the right to perform the redaction of private information on\nall records responsive to the Chicago Sun-Times and the Chicago Tribune’s FOIA\nrequests.\nOn October 8, 2010, Esther J. Seitz of the law firm of Donald M. Craven, P.C., submitted a\nwritten response on behalf of the Chicago Tribune. The Tribune agreed with the Public Access\nCounselor’s previous determination that the Medical Examiner’s documents, reports and\nphotographs of physical evidence are not exempt from disclosure under Section 7(1)(c). The\nTribune disagreed, however, with the Public Access Counselor’s determination regarding\nwithholding the post-mortem photographs of the bodies, stating:\n° In this case, the documents in question had already been furnished to the Public Access Counselor in connection\nwith its review of the County’s Notices of Intent to Deny.\n500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 « TTY: (618) 529-6403 * Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 5\n[W]e respectfully disagree with [the Public Access Counselor’s] strong reliance\non National Archives and Records Administration v. Favish, 541 U.S. 157 (2004)\nin interpreting section 7(1)(c) of the FOIA. Favish specifically construed the\nfederal FOIA’s privacy exemption which is expressly more expansive than the\nprivacy exemption articulated in the Illinois FOIA at issue here. Compare 5\nU.S.C. §552(b)(7\\(C), with 5 ILCS 140/7(1)\\(c). And the public interest in\ndisclosure asserted in Favish was of lesser import than the press’ right to gather\nand disseminate news implicated by this Request.\nAnalysis\nUnder Section 1.2 of FOIA (5 ILCS 140/1.2, added by Public Act 96-542, effective January 1,\n2010) “[a]ll records in the custody or possession of a public body are presumed to be open for\ninspection or copying.” Section 1.2 further requires that “[a]ny public body that asserts that a\nrecord is exempt from disclosure has the burden of proving by clear and convincing that it is\nexempt.”® The County has not asserted that the records in question are not “public records” to\nwhich the provisions of FOIA are generally applicable, but only that as public records they are\nsubject to exemption from inspection or production under Section 7(1)(c) of FOIA. Specifically,\nthe County asserts that the disclosure of any of the autopsy records and photographs would result\nin a clearly unwarranted invasion of the surviving family members’ personal privacy.\nThat the common law recognizes the existence of a right to personal privacy is axiomatic,\nalthough the boundaries of that right have yet to be fully defined. The Illinois Appellate Court\nhas not had occasion to determine whether the personal privacy interests of surviving family\nmembers may be considered in determining whether the disclosure of documents related to their\nrelative’s death would constitute an unwarranted invasion of personal privacy for purposes of\nFOIA. Illinois courts have recognized, however, that because Illinois’ FOIA statute is based\nupon the Federal FOIA statute, decisions construing the latter, while not controlling, may\nprovide relevant and helpful precedents in construing the State Act. Margolis v. Director, Illinois\nDept. of Revenue, 180 Tll.App.3d 1084, 1087, appeal denied, 126 Ill. 2d 560 (1989). Based on\nFederal precedent, Illinois’ courts have concluded that resolution of a personal privacy\nexemption claim requires the balancing of the public’s interest in disclosure against the\nindividual’s (or in this case, the family’s) interest in privacy. See Gibson v. Illinois State Board\nof Education, 289 lll. App. 3d 12, 20-21 (1997).\nFurther, under Federal FOIA, the courts have recognized that a decedent’s surviving family\nmembers do possess a separate personal privacy interest in “their close relative’s death-scene\nimages” and similar records. See National Archives & Records Administration v. Favish, 541\nU.S. 157, 123 S. Ct. 1570 (2004), rehearing denied, 541 U.S. 1057, 124 S. Ct. 2198 (2004) (a\ndecedent’s surviving family members have a personal privacy interest under Federal FOIA in\n“their closest relative’s death scene images”); see also Katz v. National Archives & Records\n° In its September 15 response, the County asserts that the “Chicago Sun-Times and the Chicago Tribune have not\nexpressed the basis of the ‘legitimate public interest,’ and merely contend that a public interest exists.” We note that\nSection I.2 states that the burden of demonstrating that a document is exempt from disclosure lies exclusively with\nthe public body. Accordingly, the Sun-Times and the Tribune are under no obligation to demonstrate that a\nlegitimate public interest exists.\n500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1690 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 « (618) 529-6400 * TTY: (618) 529-6403 * Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 6\nAdministration, 862 F.Supp 476, 485-86 (D.D.C. 1994), aff'd on other grounds, 68 F.3d 1348\n(D.C. Cir. 1995) (“allowing access to the autopsy photographs of [President Kennedy] would\nconstitute a clearly unwarranted invasion of the Kennedy family’s privacy under Federal FOIA);\nNew York Times Co. v. National Aeronatuics & Space Administration, 782 F.Supp. 628, 630\n(D.D.C. 1991) (sustaining the families’ claim under Federal FOIA to a privacy interest in “all\nvoice and communications” recorded aboard the space shuttle Challenger before it disintegrated).\nAutopsy Records (Other Than Post-Mortem Photographs)\nWhen a person in Illinois dies a “sudden or violent death, whether apparently suicidal, homicidal\nor accidental,” it is the duty of the coroner (or the Medical Examiner, in the case of Cook\nCounty’) to investigate the cause of death. 55 ILCS 5/3-3013 (West 2008). Both Mr. Kelly and\nMr. Scott’s deaths were the result of suicide. Thus, the circumstances surrounding their deaths\nnecessarily became a public matter, and the records relating to the investigation of their deaths\nconstitute public records which are generally subject to FOIA. These records are presumptively\nopen to inspection and copying. (5 ILCS 140/1.2, added by Public Act 96-542, effective January\n1, 2010.) The inquiry does not, however, end at this point. Cook County has asserted that the\ndisclosure of the autopsy records would result in a clearly unwarranted invasion of the surviving\nfamilies’ personal privacy rights, and that the records are therefore exempt from disclosure under\nSection 7(1)(c).8\nSurviving family members (including the families of Mr. Kelly and Mr. Scott) have a cognizable\npersonal privacy interest in autopsy records relating to the death of a close relative, which\ninterest must be considered. Accordingly, in order to determine whether Section 7(1)(c) of FOIA\nexempts those records from disclosure, the interests of the public in accessing the information\ncontained in the specific records requested must be balanced against the family members’\ninterests in limiting public dissemination of that information.” See, e.g., Schessler v. Department\nof Conservation, 256 Ill. App. 3d 198 (4\" Dist. 1994) (In determining whether the disclosure of\ninformation would constitute a clearly unwarranted invasion of personal privacy, the courts\napply a balancing test in which the following factors are considered: (1) the plaintiff’s interest in\ndisclosure; (2) the public interest in disclosure; (3) the degree of invasion of privacy; and (4) the\navailability of alternative means of obtaining the records.)\nWith respect to Mr. Kelly’s investigation, Cook County provided to the Public Access Counselor\nfor review copies of 24 documents and 23 photographs (9 of which depict the autopsy, and\nwhich will be addressed below.) The documents consist of: the first call sheet; a personal effects\n’ The Office of the Medical Examiner of Cook County was established December 6, 1976, following a referendum\nto abolish the Office of the Coroner. The Medical Examiner has essentially the same duties and responsibilities as a\ncoroner.\n® The County has not offered specific arguments regarding any particular information in the records. Instead, the\nCounty has made the assertion that all of the records are exempt under Section 7(1)\\(c).\n* It is not necessary, for resolution of this question, to determine to what degree of affinity the right to privacy\nextends. In both of these circumstances, the interests of surviving spouses and/or children of the decedents are\nimplicated.\n500 South Second Street, Springfield, Hlinois 62706 + (217) 782-1090 + TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, [linois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 « TTY: (618) 529-6403 « Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 7\ninventory; the deceased remains transportation report; the medical examiner’s case checklist;\nauthorization for release and removal; the medical examiner’s case report; the report of the\npostmortem examination; the results of toxicological analyses; the police reports; and the\nphotographs of physical evidence secured by investigators. With respect to Mr. Scott’s\ninvestigation, Cook County provided for review 22 documents and 17 photographs (all of which\ndepict Mr. Scott post-mortem). The documents consist of: the first call sheet; the deceased\nremains transportation report; the medical examiner's case checklist; a personal effects inventory;\nan identification certification; the authorization for release; the medical examiner’s case report;\nthe report of the postmortem examination; the results of toxicological analyses; the police\nreports; and a letter from the attorney for the Scott family. (For a more detailed catalogue of the\ngeneral contents of the Medical Examiner’s documents, see Exhibit A at 4.)\nAs previously noted, because of the nature of the deaths of Mr. Kelly and Mr. Scott, the law\nrequired the Medical Examiner to investigate. The duty to investigate deaths that occur under\nquestionable or suspicious circumstances is a duty to the public generally, and the public has a\nlegitimate interest in accessing the records that result from the performance of these public\nduties, at least to the extent that personal privacy rights are not affected or are outweighed by the\npublic’s interest.\nWith regard to the documents and physical evidence photographs contained in the Medical\nExaminer’s files, the County has failed to meet its burden of demonstrating by clear and\nconvincing evidence that these documents are highly personal or that disclosure of these\ndocuments would be objectionable to a reasonable person, for purposes of Section 7(1)(c). The\ndocuments simply record various aspects of the Medical Examiner’s investigation and the results\nthereof. Although the disclosure of some of the information contained in these records could be\nundesirable to surviving family members, on balance the rights of the public to a full and\ncomplete account of the investigation of Mr. Kelly’s and Mr. Scott’s deaths outweigh the privacy\nrights of the surviving family members.\nIn its Notice of Intent to Deny, the County also cited Trent v. Office of Coroner of Peoria\nCounty, 349 IllLApp.3d 276 (2004). In Trent, the Court found that the disclosure of an\nindividual’s medical records would constitute an unwarranted invasion of personal privacy.\nTrent, 349 Ill.App.3d 276, 279.'° Upon review of the documents and the reports in the Medical\nExaminer’s files in both Mr. Kelly and Mr. Scott’s cases, however, the Public Access Counselor\nconcluded that such documents and reports are not “medical records.” The County has provided\nno additional support for its claim that they are such records.\nPost-mortem Photographs\nWith respect to disclosure of the post-mortem photographs depicting the bodies of Mr. Kelly and\nMr. Scott, other factors must be considered. Unlike the documentary records discussed\nimmediately above, autopsy photographs are, by nature, graphic and gruesome. Further,\n10 The court’s opinion in Trent does not describe the “medical records” at issue in that case. The concurrence,\nhowever, implies that the “medical records” are records that were obtained by the coroner from attending physicians\nwho rendered medical treatment to the decedent. Trent, 349 Il_App.3d at 282.\n500 South Second Street, Springfield, Mlinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 ¢ Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Mlinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (618) 529-6403 « Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 8\nsurviving family members have legally-recognized rights in the depiction of a decedent’s\nremains. As the court stated in Melton v. Board of County Commissioners, 267 F. Supp.2d 859,\n864 (S. D. Ohio, 2003):\nIt is not difficult in the light of Brotherton [v. Cleveland, 923 F.2d 477 (6\" Cir.,\n1991) (holding that under Ohio law a spouse had a “legitimate claim of\nentitlement” in the body of her husband, such that her rights to that body were\nprotected by the due process clause of the Fourteenth Amendment)] to find that\nfamilies have a right not to be embarrassed or humiliated by the outrageous\ndisplay or exposure to public view of the remains of a loved one. This is not to\nsay that the official photography of decedent at the scene of death or in an autopsy\nreport would provide the basis for * * * a claim [of invasion of privacy], as long\nas such official photos remained in the files of the coroner and they were not\nreleased to the public. (Emphasis added.)\nIllinois law likewise recognizes that the nearest surviving relatives of a decedent have a “quasi-\nproperty” right in the decedent’s body. See In re Estate of Medlen, 286 I1].App.3d 860, 864\n(1997).\nThe Public Access Counselor followed the Federal FOIA precedent in National Archives and\nRecords Administration v. Favish, 541 U.S. 157 (2004), in making the following determinations\nin response to the County’s Notice of Intent to Deny:\nThe Kelly family has a cognizable, personal privacy interest in the release\nof the Medical Examiner’s photographs. In determining whether these records are\nsubject to disclosure, this privacy interest must be weighed against “any\nlegitimate public interest in obtaining the information.” In seeking access to all of\nthe information in the Medical Examiner’s files, the Tribune asserted that because\nKelly was involved in public controversies and his death was highly publicized,\nthe public has an interest in information regarding his death. While Kelly was a\npublic figure, there has been no showing that the disclosure of photographs of his\nbody during the autopsy is likely to advance the public interests referenced in the\nTribune’s FOIA request. See generally Favish, 541 U.S. at 172-73, 124 S. Ct. at\n1580-81. In this regard, at least one Illinois court has noted in construing the\npersonal privacy exemption that FOIA is intended to ”guarantee *that the\nGovernment’s activities be opened to the sharp eye of public scrutiny, not that\ninformation about private citizens that happens to be in the warehouse of the\nGovernment be so disclosed.’”(Emphasis in original.) Trent vy. Office of Coroner\nof Peoria County, 349 Ill. App. 3d 276, 281 (2004), appeal denied, 212 Ill. 2d 556\n(2004), citing Lakin Law Firm vy. Federal Trade Comm'n, 352 F.3d 1122, 1123\n(7\" Cir. 2003). On balance, the privacy interests of the Kelly family in the graphic\nphotographs of Mr. Kelly’s body postmortem outweigh the very generalized public\ninterest in obtaining access to these photographs. Accordingly, the County’s request to\ndeny the disclosure of the autopsy photographs of Mr. Kelly’s body is approved.\n500 South Second Street, Springfield, Iinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Ilinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Ilinois 62901 * (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 9\nThe Public Access Counselor applied a similar analysis with respect to the post-mortem\nphotographs of Mr. Scott’s body:\nSimilarly, the County’s use of the section 7(1)(c) exemption with regard to\nthe Medical Examiner’s photographs of Scott's body is approved. Based on our\nreview of the Medical Examiner’s files, each of the 17 photographs that depict\nScott’s body postmortem. As noted above, the courts have determined that\nautopsy photographs are records that are highly personal and their release would\nbe objectionable to reasonable persons. Further, you have indicated that the Scott\nfamily has requested privacy. In fact, on behalf of the Scott family, their attorney\nsubmitted a letter to the County \"requesting that any and all records compiled by\nyour office or in your possession relating to or in any way connected with the\ndeath of Michael W. Scott be withheld from public dissemination.” See Letter\nfrom Enrico J. Mirabelli, Nadler, Pritikin& Mirabelli, LLC, to Dr. Mitra B.\nKalelkar, Office of Cook County Medical Examiner (December 17, 2009).\nLike Mr. Kelly, Scott was also a public figure. In seeking access to the Medical\nExaminer’s records, the Tribune noted that Scott was linked to public controversies and\nhis death was highly publicized. Based on this, the Tribune asserts that “much remains to\nbe learned about” his death and the public has an interest in this information. There has\nbeen no showing, however, that the disclosure of the autopsy photographs of Scott’s body\nis likely to advance the general public interest referenced in the Tribune’s FOIA request.\nFederal precedent establishes that under the Federal FOIA, Mr. Kelly’s and Mr. Scott’s surviving\nfamily members have a protectable privacy interest against the disclosure of post-mortem\nphotographs of the decedents. This precedent provides persuasive guidance in interpreting the\nsimilar language in Illinois’ Freedom of Information Act. Margolis, 180 Ill.App.3d at 1087. In\nthe absence of a clear indication of a contrary intent on the part of the Illinois General Assembly\nin enacting and amending the Illinois FOIA, the analysis in Favish will apply to these\ncircumstances.\nThe Tribune argues, however, that the specific language of Section 7(1)(c) is narrower than that\nof the Federal FOIA. Specifically, the Tribune argues that the term “the subject’s right to\nprivacy,” in Section 7(1)(c)’s definition of unwarranted invasion of personal privacy, limits the\napplication of that section to the privacy rights of the “subjects” of the photographs, in this case\nthe two decedents, and that because a person’s privacy rights do not survive his or her death,\nthere can be no protectable privacy interest.!\nThe California Court of Appeals recently addressed a similar claim in Catsouras v. California\nHighway Patrol, 181 Cal. App. 4\" 856 (2010), noting the unique nature of the privacy interests\nattaching to post-mortem photographs:\nCalifornia law clearly provides that surviving family members have no right of\nprivacy in the context of written media discussing, or pictorial media portraying,\n'' In making its argument that personal privacy interests do not survive death, the Tribune relies exclusively on tort\nprinciples, which do not limit the rights and duties established by FOIA.\n500 South Second Street, Springfield, [linois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n106 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 10\nthe life of a decedent. Any cause of action for invasion of privacy in that context\nbelongs to the decedent and expires along with him or her. (Flynn v. Higham,\n(1983) 149 Cal. App. 3d 677, 197 Cal. Rptr. 145.) The publication of death\nimages is another matter, however. How can a decedent be injured in his or her\nprivacy by the publication of death images, which only come into being once the\ndecedent has passed on? The dissemination of death images can only affect the\nliving. As cases from other jurisdictions make plain, family members have a\ncommon law privacy right in the death images of a decedent, subject to certain\nlimitations. (Emphasis added.)\nAs the Supreme Court noted in Favish, with respect to the Federal personal privacy exemption\nupon which Illinois’ Section 7(1)(c) was patterned:\nWe have observed that the statutory privacy right protected by Exemption 7(C)\ngoes beyond the common law and the Constitution. See Reporters Committee,\n489 U.S., at 762, n. 13, 109 S.Ct. 1468 (contrasting the scope of the privacy\nprotection under FOIA with the analogous protection under the common law and\nthe Constitution); see also Marzen v. Department of Health and Human Servs.,\n825 F.2d 1148, 1152 (C.A.7 1987) (“[T]he privacy interest protected under FOIA\nextends beyond the common law”). Jt would be anomalous to hold in the instant\ncase that the statute provides even less protection than does the common law.\n(Emphasis added.)\nThe same is true of Section 7(1)(c) of the Illinois FOIA. Section 7(1){c) is intended to provide\nprotection against clearly unwarranted invasions of privacy that might otherwise occur due to\ngovernment action, not to diminish privacy rights that arise from other sources, such as the\ncommon law. To accept the Tribune ’s argument would result in precisely the “anomalous result”\nthat the Court rejected in Favish: the deprivation of a recognized privacy interest by a statute\nintended to protect those interests. Accordingly, under the specific facts of this request, we reject\nan interpretation of the phrase “the subject’s right to privacy” that would disregard the\nrecognized privacy interests of close family members in the post-mortem photographs of their\nrelatives’ bodies.\nThe Tribune also argues that the language “would constitute a clearly unwarranted invasion of\npersonal privacy” in Section 7(1)(c) of the Illinois FOIA sets a more restrictive standard than the\nFederal FOIA’s “could reasonably be expected to constitute” an invasion of privacy language.\nUnder these facts, it is unnecessary to resolve this issue because we have concluded that\ndisclosure of the very graphic post-mortem photographs of the bodies of Mr. Kelly and Mr. Scott\nwould constitute an actual unwarranted invasion of the surviving family members’ privacy, not\nthat disclosure “could” or “might” do so.\nThe Tribune also argues that because the deaths of Mr. Kelly and Mr. Scott were “newsworthy,”\ndisclosure of records concerning their deaths “can not support an invasion of privacy.” While\nthat argument may be apropos with respect to the recovery of damages for the fort of “invasion\nof privacy,” it does not control the privacy interests protected by FOIA. Indeed, FOIA extends\nprotection to information the release of which might not be actionable in tort. For example,\n500 South Second Street, Springfield, Ilinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 » Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 ¢ TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 © Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 11\nSection 7(1)(b) of FOIA protects from disclosure “private information,” which is defined to\ninclude a number of unique identifiers. Although the improper disclosure of “private\ninformation” might not rise to the level of an invasion of privacy under tort law, FOIA\nnonetheless protects against it. Likewise, an “unwarranted invasion of personal privacy,” for\npurposes of FOIA, is not limited to circumstances that would constitute the tort of “invasion of\nprivacy” under common law principles.\nFurther, the requesting parties have not asserted that access to the post-mortem photographs of\nthe bodies of Mr. Kelly and Mr. Scott would provide any information regarding the causes of\ndeath that cannot be gleaned from the documentary records. Although the deaths of Mr. Kelly\nand Mr. Scott may have been newsworthy, as the Tribune posits, the fact that the public is\ninterested in the circumstances regarding their deaths does not open the door to any and all\ninformation in the custody of public officials, and, in this case, it does not open the door to the\ndisclosure of graphic photographs of their bodies. The rights of the public to access documents\npertaining to events must be balanced, in this case, against the rights of the surviving family\nmembers.\nFindings and Conclusions\nAfter full review and giving due consideration to the arguments of the parties, the Public Access\nCounselor’s findings, and the applicable law, the Attorney General finds that:\n1). The Requests for Review were timely filed and otherwise comply with Section 9.5 of FOIA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to the\ndisclosure of the records in issue.\n2). The County has not produced to the requesters for inspection or copying the requested\ndocuments and photographs, notwithstanding the Public Access Counselor’s denial of the\nCounty’s request to withhold the documents (other than the post-mortem photographs of the\ndecedents) pursuant to Section 7(1)(c) of FOIA.\n3). Cook County has, as a matter of law, denied the FOIA requests of the Tribune and the Sun-\nTimes by failing to furnish the requested documents (except for the post-mortem photographs,\nwhich the Public Access Counselor determined were exempt from disclosure) within the\nresponse period.\n4). The County has failed to sustain its burden of demonstrating that the documents and reports\nin the Medical Examiner’s files for both Mr. Kelly and Mr. Scott, together with the photographs\nof physical evidence relating to the death of Mr. Kelly, are exempt from disclosure under Section\n7(1)(c) of FOIA.\n5). The County has sustained its burden of demonstrating that the release of the post-mortem\nphotographs of the bodies of Mr. Kelly and Mr. Scott would constitute a clearly unwarranted\ninvasion of the surviving family members’ personal privacy.\n500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Iinois, 60601 * (312) 814-3000 « TTY: (312) 814-3374 * Fax: (312) 814-3806\n1001 East Main, Carbondale, Hlinois 62901 + (618) 529-6400 « TTY: (618) 529-6403 « Fax: (618) 529-6416\nRichard Velasquez\nOctober 22, 2010\nPage 12\nIn conclusion, it is the opinion of the Attorney General that the County has, in violation of the\nrequirements of the Freedom of Information Act, improperly denied the Tribune ’s and the Sun-\nTimes’ requests for access to and/or copies of documents (other than post-mortem photographs\nof the decedents) relating to the deaths of Christopher Kelly and Michael W. Scott. Accordingly,\nthe County is directed to take immediate and appropriate action to comply with this opinion by\nfurnishing to Mr. Fusco and Ms. Sweeney the documents, reports and photographs in the\nMedical Examiner’s files relating to both Mr. Kelly and Mr. Scott (other than the post-mortem\nphotographs of the decedents). The County may redact any “private information” contained in\nthese records pursuant to Section 7(1)(b) of FOIA (5 ILCS 140/7(1 )(b)).\nThis opinion shall be considered a final decision of an administrative agency, for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 5/Art.II.\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\npy: Catan, Soern\nMichael J. Luke\nSenior Assistant Attorney General\nChief, Public Access and Opinions Division\ncc: Brendan Healey\nSenior Counsel/Media and Promotions\n435 N. Michigan Avenue\nChicago, Illinois 60611-4066\nChris Fusco\ncfusco@suntimes.com\nAnne Sweeney\nChicago Tribune\n435 N. Michigan Avenue\nChicago, Illinois 60611-4066\n$00 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7646\n100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 » Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 ¢ (618) 529-6400 * TTY: (618) 529-6403 « Fax: (618) 529-6416","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Reporters from the Chicago Sun-Times and Chicago Tribune requested autopsy reports and related records for two high-profile individuals who died by suicide. The Cook County Medical Examiner refused to release them, citing privacy concerns under FOIA. The Public Access Counselor initially determined that the autopsy reports and some photographs should be disclosed, but allowed the withholding of post-mortem photographs of the bodies. The Attorney General then issued a binding opinion on October 22, 2010, which requires the public body to either comply immediately or seek administrative review.","card_headline":"Autopsy reports for high-profile suicide deaths","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2010-pac-8890/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act (5\nILCS 140/9.5(f), added by Public Act 96-542, effective January 1, 2010).\nBackground\nOn September 12, 2009, Christopher Kelly, a businessman and fundraiser for former Governor\nRod Blagojevich, committed suicide. In an unrelated case, on November 16, 2009, Michael W.\nScott, the president of the Chicago Board of Education, committed suicide. The Office of the\nCook County Medical Examiner (Medical Examiner) conducted post-mortem inquiries into the\ncircumstances surrounding their deaths.’\nOn January 4, 2010, Chris Fusco, a reporter for the Chicago Sun-Times (referred to collectively\nas the Sun-Times), e-mailed a Freedom of Information Act (FOIA) request to Cook County\nseeking to inspect “all reports/documents/records [and] photographs regarding two cases the\nCook County Medical Examiner is believed to have closed.” Specifically, Mr. Fusco sought\n' For purposes of this Opinion, the term “County” includes both the Medical Examiner and Cook County, as the\n\naccess to “records [related to] the suicide of Christopher G. Kelly, deceased on Sept. 12, 2009”\nand “the suicide of Michael W. Scott, deceased on November 16, 2009.” On January 5, 2010,\nthe County submitted to the Public Access Counselor a document entitled “§ 9.5(b) Notice of\nIntent to Deny Pursuant to the § 7(1)(c) Privacy Exemption” (Notice of Intent to Deny) with\nregard to the Sun-Times request. Section 9.5(b) of FOIA (5 ILCS 140/9.5(b), added by Public\nAct 96-542, effective January 1, 2010), requires a public body that receives a request for records\nand asserts that the records are exempt from disclosure under, inter alia, Section 7(1)(c) of\nFOIA, to provide written notice of its intention to deny the request in whole or in part to both the\nrequester and the Public Access Counselor. At the request of the Public Access Counselor, the\n_ County supplemented its notice with copies of 24 documents” and 23 photographs from the\nMedical Examiner’s records relating to the investigation of Mr. Kelly, and 22 documents? and 17\nphotographs relating to the investigation of Mr. Scott, which the County proposed to withhold\nfrom disclosure.\nOn February 1, 2010, Anne M. Sweeney, a reporter for the Chicago Tribune (referred to\ncollectively as the Tribune), e-mailed a FOIA request to the County seeking copies of “any\ndocuments produced by the Special Counsel regarding any and all reports and documentation of\nthe Michael Scott death investigation examination and autopsy” and “of any intent to deny\nFreedom of Information requests from any other news outlet.” Ms. Sweeney sent a second e-\nmail to the County regarding Mr. Kelly’s autopsy. On February 3, 2010, the County provided\nBrendan J. Healey, Tribune Senior Counsel, with an electronic copy of the County’s notice to the\nSun-Times, which set out the County’s intention to deny media access to the Medical Examiner’s\nrecords relating to the deaths of Mr. Kelly and Mr. Scott.\nOn February 17, 2010, Ms. Sweeney sent an e-mail to the County attaching copies of two FOIA\nrequest letters. The first letter “seeks the autopsy/examination report related to the examination\nof Michael Scott, including but not limited to the First Call Sheet, Intake Sheet, Release\nDocuments, Investigator’s Report, Toxicology Report, Autopsy Report, Histology Report, letters\nor communications from the family, police or insurance companies, and photographs.” The\nsecond letter requests the same information related to the death of Mr. Kelly.\nOn February 25, 2010, the County submitted to the Public Access Counselor a second Notice of\nIntent to Deny, in this case asserting that the documents requested by the Tribune were also\nexempt from disclosure under Section 7(1)(c) of FOIA.\n* The documents in the County’s first supplemental production to this Office, which relate to Mr. Kelly consist of\nthe following: the First Call Sheet; a personal effects inventory; the deceased remains transportation report; the\nmedical examiner’s case checklist; the authorization for release and removal; the medical examiner case report; the\nreport of the postmortem examination; the results of toxicological analyses; and police reports.\n* The documents in the County’s second supplemental production to this Office, which relate to Mr. Scott, consist of\nthe following: the First Call Sheet; the deceased remains transportation report; the medical examiner’s case\nchecklist; a personal effects inventory; an identification certification; the authorization for release; the medical\nexaminer case report; the report of the postmortem examination; the results of toxicological analyses; the police\n\nSection 7(1)(c) (5 ILCS 140/7(1)(c), as amended by Public Act 96-542, effective January 1,\n2010) exempts from inspection and copying “[p]ersonal information contained within public\nrecords, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy, unless disclosure is consented to in writing by the individual subjects of the\ninformation.” The exemption defines “[u]nwarranted invasion of personal privacy” as “the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject’s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.” /d.\nOn June 4, 2010, and following review of the documents and photographs tendered by the\nMedical Examiner, the Public Access Counselor responded to the County’s Notice of Intent to\nDeny, granting in part and denying in part the County’s request to withhold these records and\nphotographs pursuant to Section 7(1)(c). Specifically, the Public Access Counselor denied the\nCounty’s request to withhold the autopsy reports and the accompanying documents for Mr. Kelly\nand Mr. Scott, as well as photographs of the physical evidence contained in the Medical\nExaminer’s file relating to the death of Mr. Kelly, but approved the County’s request to withhold\nthe post-mortem photographs depicting the bodies of Mr. Kelly and Mr. Scott.\" A copy of the\nPublic Access Counselor’s response is attached as Exhibit A and is incorporated herein by\nreference.\nOn August 3, 2010, Mr. Fusco informed this Office that the County had yet to supply him with\nthe autopsy reports, documents and the photographs of the physical evidence contained in the\nMedical Examiner’s files or to provide him with a formal denial of his FOIA request. On August\n20, 2010, Mr. Healey informed this Office that he likewise had received no records in response\nto his request. A failure to comply with a FOIA request within the requisite time period is\nconsidered a denial of the request. (5 ILCS 140/3(d), as amended by Public Act 96-542,\neffective January 1, 2010.) Although the time for a public body to respond to a FOIA request is\n_ tolled until the Public Access Counselor concludes his or her review of a notice of intent to deny\ndisclosure, the time for the County to respond had clearly lapsed by August 3 and 20, 2010.\nSection 9.5 of FOIA (5 ILCS 140/9.5, added by Public Act 96-542, effective January 1, 2010),\nprovides that a person whose request to inspect or copy a public record has been denied by a\npublic body may, no later than 60 days after the date of the final denial, file a written request for\nreview by the Public Access Counselor. Upon determining that further action is warranted, the\nAttorney General, acting through the Public Access Counselor, shall examine the issues and\nrecords, make findings of fact and conclusions of law, and issue a binding opinion to the\nrequester and the public body. Upon receipt of a binding opinion requiring the public body to\ndisclose records, “the public body shall either take necessary action immediately to comply with\nthe directive of the opinion or shall initiate administrative review under Section 11.5 of FOIA” (5\nILCS 140/11.5, added by Public Act 96-542, effective January 1, 2010).\nThis Office initiated further review with regard to the Sun-Times request on August 20, 2010 and\nwith regard to the Tribune request on August 25, 2010. On September 20, 2010, this Office sent\n* Unlike the file in Mr. Kelly’s case, the County provided this Office with no photographs of physical evidence\nrelating to Mr. Scott’s death. All photographs related to Mr. Scott depict Mr. Scott’s body post-mortem.\n\na 21-day extension letter to the County pursuant to Section 9.5(f) of FOIA (5 ILCS 140/9.5(f),\nadded by Public Act 96-542, effective January 1, 2010) and forwarded the County’s response to\nboth the Tribune and the Sun-Times.\nSection 9.5(d) of the Freedom of Information Act (5 ILCS 140/9.5(d), added by Public Act 96-\n542, effective January 1, 2010) provides:\nWithin 7 working days after it receives a copy of a request for review and\nrequest for production of records from the Public Access Counselor’, the public\nbody may, but is not required to, answer the allegations of the request for review.\nThe answer may take the form of a letter, brief, or memorandum. The Public\nAccess Counselor shall forward a copy of the answer to the person submitting the\nrequest for review, with any alleged confidential information to which the request\npertains redacted from the copy. The requester may, but is not required to,\nrespond in writing to the answer within 7 working days and shall provide a copy\nof the response to the public body.\nThe County responded to the allegations in correspondence dated September 15, 2010. The\nCounty noted the following with regard to the Medical Examiner’s records relating to Mr. Scott\nand Mr. Kelly:\n[Tjhe County makes the standing argument that the Chicago Sun-Times and the\nChicago Tribune do not have a public interest greater than the interest in the privacy\nwhich the Scott and Kelly families have in the documents which are listed below as the\ninformation contained on the listed document do not shed light, whatsoever, on the\nworkings of government, but rather only provide information concerning Mr. Scott and\nMr. Kelly. Put another way, the private information contained in the following\ndocuments is not relevant to any function the County or any other public body. Just the\nsame, the Chicago Sun-Times and the Chicago Tribune have not expressed the basis of\nthe “legitimate public interest,” and merely contend that a public interest exists. Further,\nthe County’s review of the documents at issue has not been for the purpose of\ncommunicating the presence of private information which is exempt pursuant to Section\n7(1)(b); the County reserves the right to perform the redaction of private information on\nall records responsive to the Chicago Sun-Times and the Chicago Tribune’s FOIA\nrequests.\nOn October 8, 2010, Esther J. Seitz of the law firm of Donald M. Craven, P.C., submitted a\nwritten response on behalf of the Chicago Tribune. The Tribune agreed with the Public Access\nCounselor’s previous determination that the Medical Examiner’s documents, reports and\nphotographs of physical evidence are not exempt from disclosure under Section 7(1)(c). The\nTribune disagreed, however, with the Public Access Counselor’s determination regarding\nwithholding the post-mortem photographs of the bodies, stating:\n° In this case, the documents in question had already been furnished to the Public Access Counselor in connection\n\n[W]e respectfully disagree with [the Public Access Counselor’s] strong reliance\non National Archives and Records Administration v. Favish, 541 U.S. 157 (2004)\nin interpreting section 7(1)(c) of the FOIA. Favish specifically construed the\nfederal FOIA’s privacy exemption which is expressly more expansive than the\nprivacy exemption articulated in the Illinois FOIA at issue here. Compare 5\nU.S.C. §552(b)(7\\(C), with 5 ILCS 140/7(1)\\(c). And the public interest in\ndisclosure asserted in Favish was of lesser import than the press’ right to gather\nand disseminate news implicated by this Request.\nAnalysis\nUnder Section 1.2 of FOIA (5 ILCS 140/1.2, added by Public Act 96-542, effective January 1,\n2010) “[a]ll records in the custody or possession of a public body are presumed to be open for\ninspection or copying.” Section 1.2 further requires that “[a]ny public body that asserts that a\nrecord is exempt from disclosure has the burden of proving by clear and convincing that it is\nexempt.”® The County has not asserted that the records in question are not “public records” to\nwhich the provisions of FOIA are generally applicable, but only that as public records they are\nsubject to exemption from inspection or production under Section 7(1)(c) of FOIA. Specifically,\nthe County asserts that the disclosure of any of the autopsy records and photographs would result\nin a clearly unwarranted invasion of the surviving family members’ personal privacy.\nThat the common law recognizes the existence of a right to personal privacy is axiomatic,\nalthough the boundaries of that right have yet to be fully defined. The Illinois Appellate Court\nhas not had occasion to determine whether the personal privacy interests of surviving family\nmembers may be considered in determining whether the disclosure of documents related to their\nrelative’s death would constitute an unwarranted invasion of personal privacy for purposes of\nFOIA. Illinois courts have recognized, however, that because Illinois’ FOIA statute is based\nupon the Federal FOIA statute, decisions construing the latter, while not controlling, may\nprovide relevant and helpful precedents in construing the State Act. Margolis v. Director, Illinois\nDept. of Revenue, 180 Tll.App.3d 1084, 1087, appeal denied, 126 Ill. 2d 560 (1989). Based on\nFederal precedent, Illinois’ courts have concluded that resolution of a personal privacy\nexemption claim requires the balancing of the public’s interest in disclosure against the\nindividual’s (or in this case, the family’s) interest in privacy. See Gibson v. Illinois State Board\nof Education, 289 lll. App. 3d 12, 20-21 (1997).\nFurther, under Federal FOIA, the courts have recognized that a decedent’s surviving family\nmembers do possess a separate personal privacy interest in “their close relative’s death-scene\nimages” and similar records. See National Archives & Records Administration v. Favish, 541\nU.S. 157, 123 S. Ct. 1570 (2004), rehearing denied, 541 U.S. 1057, 124 S. Ct. 2198 (2004) (a\ndecedent’s surviving family members have a personal privacy interest under Federal FOIA in\n“their closest relative’s death scene images”); see also Katz v. National Archives & Records\n° In its September 15 response, the County asserts that the “Chicago Sun-Times and the Chicago Tribune have not\nexpressed the basis of the ‘legitimate public interest,’ and merely contend that a public interest exists.” We note that\nSection I.2 states that the burden of demonstrating that a document is exempt from disclosure lies exclusively with\nthe public body. Accordingly, the Sun-Times and the Tribune are under no obligation to demonstrate that a\n\nAdministration, 862 F.Supp 476, 485-86 (D.D.C. 1994), aff'd on other grounds, 68 F.3d 1348\n(D.C. Cir. 1995) (“allowing access to the autopsy photographs of [President Kennedy] would\nconstitute a clearly unwarranted invasion of the Kennedy family’s privacy under Federal FOIA);\nNew York Times Co. v. National Aeronatuics & Space Administration, 782 F.Supp. 628, 630\n(D.D.C. 1991) (sustaining the families’ claim under Federal FOIA to a privacy interest in “all\nvoice and communications” recorded aboard the space shuttle Challenger before it disintegrated).\nAutopsy Records (Other Than Post-Mortem Photographs)\nWhen a person in Illinois dies a “sudden or violent death, whether apparently suicidal, homicidal\nor accidental,” it is the duty of the coroner (or the Medical Examiner, in the case of Cook\nCounty’) to investigate the cause of death. 55 ILCS 5/3-3013 (West 2008). Both Mr. Kelly and\nMr. Scott’s deaths were the result of suicide. Thus, the circumstances surrounding their deaths\nnecessarily became a public matter, and the records relating to the investigation of their deaths\nconstitute public records which are generally subject to FOIA. These records are presumptively\nopen to inspection and copying. (5 ILCS 140/1.2, added by Public Act 96-542, effective January\n1, 2010.) The inquiry does not, however, end at this point. Cook County has asserted that the\ndisclosure of the autopsy records would result in a clearly unwarranted invasion of the surviving\nfamilies’ personal privacy rights, and that the records are therefore exempt from disclosure under\nSection 7(1)(c).8\nSurviving family members (including the families of Mr. Kelly and Mr. Scott) have a cognizable\npersonal privacy interest in autopsy records relating to the death of a close relative, which\ninterest must be considered. Accordingly, in order to determine whether Section 7(1)(c) of FOIA\nexempts those records from disclosure, the interests of the public in accessing the information\ncontained in the specific records requested must be balanced against the family members’\ninterests in limiting public dissemination of that information.” See, e.g., Schessler v. Department\nof Conservation, 256 Ill. App. 3d 198 (4\" Dist. 1994) (In determining whether the disclosure of\ninformation would constitute a clearly unwarranted invasion of personal privacy, the courts\napply a balancing test in which the following factors are considered: (1) the plaintiff’s interest in\ndisclosure; (2) the public interest in disclosure; (3) the degree of invasion of privacy; and (4) the\navailability of alternative means of obtaining the records.)\nWith respect to Mr. Kelly’s investigation, Cook County provided to the Public Access Counselor\nfor review copies of 24 documents and 23 photographs (9 of which depict the autopsy, and\nwhich will be addressed below.) The documents consist of: the first call sheet; a personal effects\n’ The Office of the Medical Examiner of Cook County was established December 6, 1976, following a referendum\nto abolish the Office of the Coroner. The Medical Examiner has essentially the same duties and responsibilities as a\ncoroner.\n® The County has not offered specific arguments regarding any particular information in the records. Instead, the\nCounty has made the assertion that all of the records are exempt under Section 7(1)\\(c).\n* It is not necessary, for resolution of this question, to determine to what degree of affinity the right to privacy\nextends. In both of these circumstances, the interests of surviving spouses and/or children of the decedents are\n\ninventory; the deceased remains transportation report; the medical examiner’s case checklist;\nauthorization for release and removal; the medical examiner’s case report; the report of the\npostmortem examination; the results of toxicological analyses; the police reports; and the\nphotographs of physical evidence secured by investigators. With respect to Mr. Scott’s\ninvestigation, Cook County provided for review 22 documents and 17 photographs (all of which\ndepict Mr. Scott post-mortem). The documents consist of: the first call sheet; the deceased\nremains transportation report; the medical examiner's case checklist; a personal effects inventory;\nan identification certification; the authorization for release; the medical examiner’s case report;\nthe report of the postmortem examination; the results of toxicological analyses; the police\nreports; and a letter from the attorney for the Scott family. (For a more detailed catalogue of the\ngeneral contents of the Medical Examiner’s documents, see Exhibit A at 4.)\nAs previously noted, because of the nature of the deaths of Mr. Kelly and Mr. Scott, the law\nrequired the Medical Examiner to investigate. The duty to investigate deaths that occur under\nquestionable or suspicious circumstances is a duty to the public generally, and the public has a\nlegitimate interest in accessing the records that result from the performance of these public\nduties, at least to the extent that personal privacy rights are not affected or are outweighed by the\npublic’s interest.\nWith regard to the documents and physical evidence photographs contained in the Medical\nExaminer’s files, the County has failed to meet its burden of demonstrating by clear and\nconvincing evidence that these documents are highly personal or that disclosure of these\ndocuments would be objectionable to a reasonable person, for purposes of Section 7(1)(c). The\ndocuments simply record various aspects of the Medical Examiner’s investigation and the results\nthereof. Although the disclosure of some of the information contained in these records could be\nundesirable to surviving family members, on balance the rights of the public to a full and\ncomplete account of the investigation of Mr. Kelly’s and Mr. Scott’s deaths outweigh the privacy\nrights of the surviving family members.\nIn its Notice of Intent to Deny, the County also cited Trent v. Office of Coroner of Peoria\nCounty, 349 IllLApp.3d 276 (2004). In Trent, the Court found that the disclosure of an\nindividual’s medical records would constitute an unwarranted invasion of personal privacy.\nTrent, 349 Ill.App.3d 276, 279.'° Upon review of the documents and the reports in the Medical\nExaminer’s files in both Mr. Kelly and Mr. Scott’s cases, however, the Public Access Counselor\nconcluded that such documents and reports are not “medical records.” The County has provided\nno additional support for its claim that they are such records.\nPost-mortem Photographs\nWith respect to disclosure of the post-mortem photographs depicting the bodies of Mr. Kelly and\nMr. Scott, other factors must be considered. Unlike the documentary records discussed\nimmediately above, autopsy photographs are, by nature, graphic and gruesome. Further,\n10 The court’s opinion in Trent does not describe the “medical records” at issue in that case. The concurrence,\nhowever, implies that the “medical records” are records that were obtained by the coroner from attending physicians\n\nsurviving family members have legally-recognized rights in the depiction of a decedent’s\nremains. As the court stated in Melton v. Board of County Commissioners, 267 F. Supp.2d 859,\n864 (S. D. Ohio, 2003):\nIt is not difficult in the light of Brotherton [v. Cleveland, 923 F.2d 477 (6\" Cir.,\n1991) (holding that under Ohio law a spouse had a “legitimate claim of\nentitlement” in the body of her husband, such that her rights to that body were\nprotected by the due process clause of the Fourteenth Amendment)] to find that\nfamilies have a right not to be embarrassed or humiliated by the outrageous\ndisplay or exposure to public view of the remains of a loved one. This is not to\nsay that the official photography of decedent at the scene of death or in an autopsy\nreport would provide the basis for * * * a claim [of invasion of privacy], as long\nas such official photos remained in the files of the coroner and they were not\nreleased to the public. (Emphasis added.)\nIllinois law likewise recognizes that the nearest surviving relatives of a decedent have a “quasi-\nproperty” right in the decedent’s body. See In re Estate of Medlen, 286 I1].App.3d 860, 864\n(1997).\nThe Public Access Counselor followed the Federal FOIA precedent in National Archives and\nRecords Administration v. Favish, 541 U.S. 157 (2004), in making the following determinations\nin response to the County’s Notice of Intent to Deny:\nThe Kelly family has a cognizable, personal privacy interest in the release\nof the Medical Examiner’s photographs. In determining whether these records are\nsubject to disclosure, this privacy interest must be weighed against “any\nlegitimate public interest in obtaining the information.” In seeking access to all of\nthe information in the Medical Examiner’s files, the Tribune asserted that because\nKelly was involved in public controversies and his death was highly publicized,\nthe public has an interest in information regarding his death. While Kelly was a\npublic figure, there has been no showing that the disclosure of photographs of his\nbody during the autopsy is likely to advance the public interests referenced in the\nTribune’s FOIA request. See generally Favish, 541 U.S. at 172-73, 124 S. Ct. at\n1580-81. In this regard, at least one Illinois court has noted in construing the\npersonal privacy exemption that FOIA is intended to ”guarantee *that the\nGovernment’s activities be opened to the sharp eye of public scrutiny, not that\ninformation about private citizens that happens to be in the warehouse of the\nGovernment be so disclosed.’”(Emphasis in original.) Trent vy. Office of Coroner\nof Peoria County, 349 Ill. App. 3d 276, 281 (2004), appeal denied, 212 Ill. 2d 556\n\nThe Public Access Counselor applied a similar analysis with respect to the post-mortem\nphotographs of Mr. Scott’s body:\nSimilarly, the County’s use of the section 7(1)(c) exemption with regard to\nthe Medical Examiner’s photographs of Scott's body is approved. Based on our\nreview of the Medical Examiner’s files, each of the 17 photographs that depict\nScott’s body postmortem. As noted above, the courts have determined that\nautopsy photographs are records that are highly personal and their release would\nbe objectionable to reasonable persons. Further, you have indicated that the Scott\nfamily has requested privacy. In fact, on behalf of the Scott family, their attorney\nsubmitted a letter to the County \"requesting that any and all records compiled by\nyour office or in your possession relating to or in any way connected with the\ndeath of Michael W. Scott be withheld from public dissemination.” See Letter\nfrom Enrico J. Mirabelli, Nadler, Pritikin& Mirabelli, LLC, to Dr. Mitra B.\nKalelkar, Office of Cook County Medical Examiner (December 17, 2009).\nLike Mr. Kelly, Scott was also a public figure. In seeking access to the Medical\nExaminer’s records, the Tribune noted that Scott was linked to public controversies and\nhis death was highly publicized. Based on this, the Tribune asserts that “much remains to\nbe learned about” his death and the public has an interest in this information. There has\nbeen no showing, however, that the disclosure of the autopsy photographs of Scott’s body\nis likely to advance the general public interest referenced in the Tribune’s FOIA request.\nFederal precedent establishes that under the Federal FOIA, Mr. Kelly’s and Mr. Scott’s surviving\nfamily members have a protectable privacy interest against the disclosure of post-mortem\nphotographs of the decedents. This precedent provides persuasive guidance in interpreting the\nsimilar language in Illinois’ Freedom of Information Act. Margolis, 180 Ill.App.3d at 1087. In\nthe absence of a clear indication of a contrary intent on the part of the Illinois General Assembly\nin enacting and amending the Illinois FOIA, the analysis in Favish will apply to these\ncircumstances.\nThe Tribune argues, however, that the specific language of Section 7(1)(c) is narrower than that\nof the Federal FOIA. Specifically, the Tribune argues that the term “the subject’s right to\nprivacy,” in Section 7(1)(c)’s definition of unwarranted invasion of personal privacy, limits the\napplication of that section to the privacy rights of the “subjects” of the photographs, in this case\nthe two decedents, and that because a person’s privacy rights do not survive his or her death,\nthere can be no protectable privacy interest.!\nThe California Court of Appeals recently addressed a similar claim in Catsouras v. California\nHighway Patrol, 181 Cal. App. 4\" 856 (2010), noting the unique nature of the privacy interests\nattaching to post-mortem photographs:\nCalifornia law clearly provides that surviving family members have no right of\nprivacy in the context of written media discussing, or pictorial media portraying,\n'' In making its argument that personal privacy interests do not survive death, the Tribune relies exclusively on tort\n\nthe life of a decedent. Any cause of action for invasion of privacy in that context\nbelongs to the decedent and expires along with him or her. (Flynn v. Higham,\n(1983) 149 Cal. App. 3d 677, 197 Cal. Rptr. 145.) The publication of death\nimages is another matter, however. How can a decedent be injured in his or her\nprivacy by the publication of death images, which only come into being once the\ndecedent has passed on? The dissemination of death images can only affect the\nliving. As cases from other jurisdictions make plain, family members have a\ncommon law privacy right in the death images of a decedent, subject to certain\nlimitations. (Emphasis added.)\nAs the Supreme Court noted in Favish, with respect to the Federal personal privacy exemption\nupon which Illinois’ Section 7(1)(c) was patterned:\nWe have observed that the statutory privacy right protected by Exemption 7(C)\ngoes beyond the common law and the Constitution. See Reporters Committee,\n489 U.S., at 762, n. 13, 109 S.Ct. 1468 (contrasting the scope of the privacy\nprotection under FOIA with the analogous protection under the common law and\nthe Constitution); see also Marzen v. Department of Health and Human Servs.,\n825 F.2d 1148, 1152 (C.A.7 1987) (“[T]he privacy interest protected under FOIA\nextends beyond the common law”). Jt would be anomalous to hold in the instant\ncase that the statute provides even less protection than does the common law.\n(Emphasis added.)\nThe same is true of Section 7(1)(c) of the Illinois FOIA. Section 7(1){c) is intended to provide\nprotection against clearly unwarranted invasions of privacy that might otherwise occur due to\ngovernment action, not to diminish privacy rights that arise from other sources, such as the\ncommon law. To accept the Tribune ’s argument would result in precisely the “anomalous result”\nthat the Court rejected in Favish: the deprivation of a recognized privacy interest by a statute\nintended to protect those interests. Accordingly, under the specific facts of this request, we reject\nan interpretation of the phrase “the subject’s right to privacy” that would disregard the\nrecognized privacy interests of close family members in the post-mortem photographs of their\nrelatives’ bodies.\nThe Tribune also argues that the language “would constitute a clearly unwarranted invasion of\npersonal privacy” in Section 7(1)(c) of the Illinois FOIA sets a more restrictive standard than the\nFederal FOIA’s “could reasonably be expected to constitute” an invasion of privacy language.\nUnder these facts, it is unnecessary to resolve this issue because we have concluded that\ndisclosure of the very graphic post-mortem photographs of the bodies of Mr. Kelly and Mr. Scott\nwould constitute an actual unwarranted invasion of the surviving family members’ privacy, not\nthat disclosure “could” or “might” do so.\nThe Tribune also argues that because the deaths of Mr. Kelly and Mr. Scott were “newsworthy,”\ndisclosure of records concerning their deaths “can not support an invasion of privacy.” While\nthat argument may be apropos with respect to the recovery of damages for the fort of “invasion\nof privacy,” it does not control the privacy interests protected by FOIA. Indeed, FOIA extends\nprotection to information the release of which might not be actionable in tort. For example,\n\nSection 7(1)(b) of FOIA protects from disclosure “private information,” which is defined to\ninclude a number of unique identifiers. Although the improper disclosure of “private\ninformation” might not rise to the level of an invasion of privacy under tort law, FOIA\nnonetheless protects against it. Likewise, an “unwarranted invasion of personal privacy,” for\npurposes of FOIA, is not limited to circumstances that would constitute the tort of “invasion of\nprivacy” under common law principles.\nFurther, the requesting parties have not asserted that access to the post-mortem photographs of\nthe bodies of Mr. Kelly and Mr. Scott would provide any information regarding the causes of\ndeath that cannot be gleaned from the documentary records. Although the deaths of Mr. Kelly\nand Mr. Scott may have been newsworthy, as the Tribune posits, the fact that the public is\ninterested in the circumstances regarding their deaths does not open the door to any and all\ninformation in the custody of public officials, and, in this case, it does not open the door to the\ndisclosure of graphic photographs of their bodies. The rights of the public to access documents\npertaining to events must be balanced, in this case, against the rights of the surviving family\nmembers.\nFindings and Conclusions\nAfter full review and giving due consideration to the arguments of the parties, the Public Access\nCounselor’s findings, and the applicable law, the Attorney General finds that:\n1). The Requests for Review were timely filed and otherwise comply with Section 9.5 of FOIA.\nTherefore, the Attorney General may properly issue a binding opinion with respect to the\ndisclosure of the records in issue.\n2). The County has not produced to the requesters for inspection or copying the requested\ndocuments and photographs, notwithstanding the Public Access Counselor’s denial of the\nCounty’s request to withhold the documents (other than the post-mortem photographs of the\ndecedents) pursuant to Section 7(1)(c) of FOIA.\n3). Cook County has, as a matter of law, denied the FOIA requests of the Tribune and the Sun-\nTimes by failing to furnish the requested documents (except for the post-mortem photographs,\nwhich the Public Access Counselor determined were exempt from disclosure) within the\nresponse period.\n4). The County has failed to sustain its burden of demonstrating that the documents and reports\nin the Medical Examiner’s files for both Mr. Kelly and Mr. Scott, together with the photographs\nof physical evidence relating to the death of Mr. Kelly, are exempt from disclosure under Section\n7(1)(c) of FOIA.\n5). The County has sustained its burden of demonstrating that the release of the post-mortem\nphotographs of the bodies of Mr. Kelly and Mr. Scott would constitute a clearly unwarranted\n\nIn conclusion, it is the opinion of the Attorney General that the County has, in violation of the\nrequirements of the Freedom of Information Act, improperly denied the Tribune ’s and the Sun-\nTimes’ requests for access to and/or copies of documents (other than post-mortem photographs\nof the decedents) relating to the deaths of Christopher Kelly and Michael W. Scott. Accordingly,\nthe County is directed to take immediate and appropriate action to comply with this opinion by\nfurnishing to Mr. Fusco and Ms. Sweeney the documents, reports and photographs in the\nMedical Examiner’s files relating to both Mr. Kelly and Mr. Scott (other than the post-mortem\nphotographs of the decedents). The County may redact any “private information” contained in\nthese records pursuant to Section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b)).\nThis opinion shall be considered a final decision of an administrative agency, for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 5/Art.II.\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\npy: Catan, Soern\nMichael J. Luke\nSenior Assistant Attorney General\nChief, Public Access and Opinions Division\ncc: Brendan Healey\nSenior Counsel/Media and Promotions\n435 N. Michigan Avenue\nChicago, Illinois 60611-4066\nChris Fusco\ncfusco@suntimes.com\nAnne Sweeney\nChicago Tribune\n435 N. Michigan Avenue\nChicago, Illinois 60611-4066"}
{"id":222,"orig_master_id":19424,"dup_master_id":19196,"dup_sha256":"877cbb28d3841f38f1b3df0b1d56c4fc5685f38cd0a19962080a9ac69052856b","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-04-18","case_number":"2011 PAC 11946","request_numbers":null,"title":"Section 7(1)(s) Exemption ~ Nerve Conduction Velocity Test results obtained with respect to workers’ compensation claims are not exempt from disclosure","filename":"PUBLIC ACCESS OPINION No. 11-005  (Request for Review - 2011 PAC 11946).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 11-005  (Request for Review - 2011 PAC 11946).pdf","word_count":2573,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a request for disclosure of Nerve Conduction Velocity test results related to workers' compensation claims.","plain_summary":"The requester, a newspaper reporter, sought a sample of de-identified nerve-conduction-velocity test results submitted in support of state employees' workers' compensation claims, which a state agency withheld in full as proprietary risk-management information. The Public Access Counselor held that the agency's self-insurance workers' compensation program was not an intergovernmental risk-management pool and that the exemption protects only proprietary claims-management policies and procedures, not the anonymized results of individual claims. The agency was directed to furnish the requested test results, with personal identifiers redacted.","holding":"Nerve Conduction Velocity test results obtained with respect to workers’ compensation claims are not exempt from disclosure.","legal_question":"Are Nerve Conduction Velocity test results exempt from disclosure under the Freedom of Information Act?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(s)"],"public_body":"Department of Central Management Services","requesting_party":"Mr. George Pawlaczyk (Belleville News-Democrat)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(s)","subject_description":"The disclosure of medical test results related to state employee workers' compensation claims.","ocr_status":"ok","ocr_quality":88,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-005.pdf","sha256":"d9d7d3138617ae8440402173deb15373ad4974453f6e4644cbaf05f3ad8d16a1","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["workers compensation","medical records","FOIA","privacy","state employees"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OP THE ATTORNEY GENERAL.\nSTATE OF ILLINOIS\nLisa Madigan\nVETORNEY GEER SL\nApril 18,2011\nPUBLIC ACCESS OPINION No, 11-005\n(Request for Review 2011 PAC 11946}\nFREEDOM OF INFORMATION ACT:\nSection 7(1)(s) Exemption ~ Nerve Conduction Velocity\nTest results obtained with respect to workers’ compensation\nclaims are not exempt from disclosure\nMr. Robert Morgan\nDeputy General Counsel\nDepartment of Central Management Services\nRobert.Morgan@illinois.gov\nDear Mr. Morgan:\nThis binding opinion is issued pursuant to Section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5() (West 2009 Supp.)).\nBACKGROUND\nOn January 3, 2011, Mr. George Pawlaczyk, a stalf reporter for the Be/leville\nNews-Democrat (BND), submitted a request via e-mail to the Department of Central\nManagement Services (CMS) seeking copies ofa sample of the records showing the results of\nNerve Conduction Velocity (NCY) tests that were conducted as part of State employees’ claims\nfor workers’ compensation in 2009.’ Specifically, Mr. Pawlaczyk sought copies of approximately\n50 NCV test results that were conducted in connection with settled workers’ compensation claims\nfor repetitive trauma injuries by emplovees of the Menard Correctional Center in 2009. Ina\nsupplemental e-mail on the same date, Mr. Pawlaczyk narrowed and clarified his request by\nstating: \"Why don't we agree right here in this message to the redaction of any personal identifier\n' E-mail from George Pawlaczyk, BND, to Sunny Clark, FOLA Officer, CMS Ganuary 3, 2011 at 11:17 am).\n300 South Second Sereet, Springfiehd Hlineis @27My * GTP) TRI-TOME © PY NPT ES S469 @ Fax (217) FST 7odb\n10 West Randalph Streer, Chicago, Himeis 20601 *# 1372) Rp aiknE «CP g\nYOO) Kast Main. Curbondate, Hineis 62807 © (618 pane 8 PTY\nMr. Robert Morgan\nApril 18, 2011\nPage 2\non these tests that would identify the patient. Name, SSN, address, etc., can be eliminated. We\nare primarily interested in the fest results and the written reports of the physicians who conducted\nthe tests. And the cost of the test.”?\nOn January 5, 2011, CMS sent a denial letter to Mr. Pawlaczyk asserting that the\nNCV test results are exempt from disclosure pursuant to Section 7(1)(s} of FOIA (5 ILCS\n140/7(1)(s) (West 2009 Supp.}), which exempts “[a]ny and all proprietary information and\nrecords related to the operation of an intergovernmental risk management association or self-\ninsurance pool or jointly self-administered health and accident cooperative or pool. Insurance or\nself insurance (including any intergovernmental risk management association or self insurance\npool) claims, loss or risk management information, records, data, advice or communications.”\nOn January 19, 2011, this Office received Mr. Pawlaczyk's Request for Review of\nCMS’ denial of his FOIA request.” This Office initiated further review of this matter on January\n24, 2011.* As requested, CMS provided this Office with its analysis of the applicability of the\nSection 7(1}(s) exemption and with a redacted sample ofa NCV test result on February 3, 20117\nIn its response letter, CMS argued:\nThe requested tests are maintained by CMS only in conjunction\nwith the operation of the State of Illinois Risk Management\nProgram. The plain language of [Section 7(1}(s}| leaves no\nquestion or ambiguity regarding the legislative intent to protect any\nand all risk management records from FOIA disclosure.\n? Email from George Pawlaczyk, BND, to Sunny Clark, FOIA Officer, CMS Ganuary 3, 201f at 4:18 pm). CMS\nhas not suggested that the disclosure of these records with personal identifiers redacted would reveal any medical\ninformation regarding individual test subjects that would be exempt under Section 7(/ (b). See Southern Hlingisan\nv. filinols Dept. of Public Health, 218 WL2d 390 (2006),\n* Letter from George Pawlaczyk, BND, to the Public Access Counselor, Office of the Attomey General January 18.\n2011).\n‘Letter from Matthew C. Rogina, Assistant Public Access Counselor, to Sunny Clark, FOIA Officer, CMS (lanuary\n24, 2011).\n* Letter from Bob Morgan, Deputy General Counsel — Employee Benefits, CMS, to Matthew Rogina, Assistant\nPublic Access Counselor (February 3, 2011), CMS provided this Office with copies of additional test results on\nMarch 16, 2011. CMS redacted all of the records that it provided to this Office to remove any information\nidentifying the name of the State employee and the physician involved.\nMr. Robert Morgan\nApril 18, 2011\nPage 3\nCMS asserted that Section 7(1})(s) “allows a public agency to deny any and all proprietary\ninformation, and any and all records related to the operation of the State of Hlinois Risk\nManagement program.\" (Emphasis in original.)\nOn February 20, 2011, Mr. Pawlaczyk responded to CMS' Jefter and argued that\nthe NCV test results are “not ‘proprietary’ in nature. Because they are connected to Workers’\nCompensation settlements that are already available as public records, how can it be argued that\nthe release oft hese records could in any way jeopardize or adversely affect the operation of a risk\nmanagement pool?\"* The newspaper further argued that “[i]t is inherent in the FOIA statute that\nrecords that may show whether the expenditure of public funds was proper, must be open to\npublic scrutiny. In this case, there is reason to suspect th[at] some of the tests, when reviewed by\nindependent medical experts, may show that no reason for corrective surgery existed and\ntherefore no expenditure of public funds was necessary to pay for Workers’ Compensation\nsettlements.” Mr. Pawlaczyk provided this Office with an additional response to CMS' letter on\nFebruary 21, 2011.”\nCMS supplemented its response on March 1, 2011, and stated that the NCV test\nresults \"are strictly a medical record used by CMS in the adjudication, evaluation, and settlement\nofa risk management claim” and that the “records are collected solely for the purpose oft he\noperation of the self-insurance Workers’ Compensation pool as described in 7(1}(s)\".* Further,\nCMS argued that the records are \"collected only for the internal use of the adjudication of\nworkers’ compensation claims with the Risk Management Division of CMS Bureau of Benefits.\"\nCMS also asserted that the NCV test results “are in the possession and custody of the Illinois\nDepartment of Insurance pursuant to an ongoing investigation. As such, CMS has no responsive\nrecords at this time.\"”\n° Letter from George Pawlaczyk and Beth Hundsdorfer, BND, to Matthew Rogina, Assistant Public Access\nCounselor, Office of the Attorney General (February 20, 2011).\n” E-mail from George Pawlaczyk and Beth Hundsdorfer, BND, to Matthew Rogina, Assistant Public Access\nCounselor, Office of the Attorney General (February 21, 2011 at 3:38 pm).\n® Letter from Bob Morgan, Deputy General Counsel — Benefits, CMS. to Matthew Rogina, Assistant Public Access\nCounselor, Office of the Attorney General (March J, 2011).\n° We note that the fact that another State agency has temporary custody of these records does not relieve CMS from\narranging to obtain copies or otherwise producing the records pursuant to a FOIA request.\nMr. Robert Morgan\nApril 18, 2011\nPage 4\nANALYSIS\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2009 Supp.)) provides that \"[e]ach\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Section 7 oft his Act.\" Under Section 1.2 of FOIA (5 ILCS\n140/1.2) (West 2009 Supp.)), “[a]ll records in the custody ofa public body are presumed to be\nopen to inspection and copying.\" In keeping with this presumption, the exemptions to disclosure\nare to be narrowly construed. Bawie v. Evanston Community Consolidated School District No.\n65, 128 Ill. 2d 373, 378 (1989). Section 1.2 further requires that °[a]ny public body that asserts\nthat a record is exempt from disclosure has the burden of proving by clear and convincing\nevidence that it is exempt.”\nCMS asserts that under Section 7(1)(s) it may withhold “any and all records\nrelated to the operation of the State of [mois Risk Management program.\" Because the NCV\ntest results are submitted to support State employees' claims for recovery from the workers’\ncompensation program which its Risk Management Division administers, CMS argues that\nSection 7(1)(s) applies. Specifically, CMS contends that the NC’V test results are exempt from\ndisclosure both as proprietary information related to a risk management association under the\nfirst sentence of Section 7(1)(s}, and also as claims, records and data under that section's second\nsentence.\nCMS's reliance on the first sentence of Section 7(1\\(s) to withhold these records.\nhowever, is clearly erroneous. The first sentence of Section 7(1}(s) exempts from disclosure\n\"proprietary information and records related to the operation of an infergovernmental risk\nmanagement association or self-insurance pool or jointly self-administered health and accident\ncooperative or pool.\" None of these terms is applicable to the State’s worker's compensation\nself-insurance program.\nAlthough CMS refers to the program at one point as an “intergovernmental risk\nmanagement association, funded through a self insurance pool,\"\"’ it is not an \"intergovernmental”\nprogram at all. The program covers only workers’ compensation claims against State agencies\nand State universities; it is purely intragovernmental in nature. Further, although it does\nconstitute a “self-insurance” program, if is not a “pool” within the common meaning of that term:\n\"an aggregation usu. made by a group and used mutually for the benefit of all.\" Webster's Third\n'°L etter from Bob Morgan, Deputy General Counsel — Employee Benefits, CMS, to Matthew Rogina, Assistant\nPublic Access Counselor, Office of the Attorney General (February 3, 2011).\nMr. Robert Morgan\nApril 18, 2011\nPage 5\nNew International Dictionary at 1764 (1981). In fact, claims are paid under the program from the\nWorkers' Compensation Revolving Fund (30 ILCS 105/6z-64 (West 2008). Other than Federal\nfunds received by CMS as a result of expenditures from the Fund, and amounts recovered\nthrough subrogation in workers’ compensation and workers’ occupational disease cases, the Fund\nis made up of State moneys and is not a pool of funds from multiple sources. Accordingly, the\nNCV test results are not exempt from disclosure under the first sentence of Section 7(1)(s) of\nFOIA,\nAdditionally, CMS asserted that the NCV test results are exempt from disclosure\nas \"insurance or self insurance * * * claims, loss or risk management information. records, data.\nadvice or communications” under the second sentence of Section 7(1(s). As explained in Public\nAccess Opinion No. 11-004, issued April 15, 2011, a copy of which is enclosed, Section 7(1)(s)\ndoes not exempt from disclosure information relating to individual \"claims\" or \"losses.\" Rather,\nthis provision exempts from disclosure only proprietary \"claims management,\" \"loss\nmanagement” and \"risk management” information such as the policies, procedures and practices\nthat a risk management association or self-insurance pool adopts to manage its claims, loss and\nrisk exposure, the release of which could disclose sensitive business policies or result in an untair\nadvantage to persons dealing with the entity.\nOur review of the test resulis confirms that these records consist exclusively of de-\nidentified medical findings about State employees who filed workers’ compensation claims with\nthe State of Illinois. CMS has not demonstrated how these anonymous test results constitute\nproprietary information that relates to the operation of CMS’ risk management program. The\nrecords do not pertain to the policies, procedures and practices that CMS has adopted to manage\nits claims, loss and risk exposure, or contain any other data that might disclose confidential\noperational information.\nThrough CMS, the State annually spends tens of millions of dollars on workers!\ncompensation claims for State employees. Following CMS' reasoning, all of the information that\nwould give insight into how CMS evaluated the claims and arrived at its decisions to settle\nclaims and make payments would be shielded from public review. CMS' arguments for a broad\nexemption for all records relating to the workers’ compensation program are not only\nunsupported by the language on Section 7(1)(s), but, if successful, would frustrate the purpose of\nSection 2,5 of FOIA (5 ILCS 140/2.5 (West 2009 Supp.)), which clearly provides that \"[a]ll\nrecords relating to the obligation, receipt, and use of public funds oft he State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.”\nMr. Robert Morgan\nApril 18, 2011\nPage 6\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor's findings, and the applicable law, the Attorney General finds that:\n1) On January 3, 2011, Mr. George Pawlaczyk submitted a FOIA request to\nCentral Management Services seeking copies of a sample of the records showing the results of\nNerve Conduction Velocity tests that were conducted as part of State employees’ claims for\nworkers' compensation in 2009. Mr. Pawlaczyk sought copies of approximately 50 NCV test\nresults that were conducted in connection with settled workers compensation claims for repetitive\ntrauma injuries by employees of Menard Correctional Center in 2009.\n2) On January 5, 2011, CMS sent a denial letter to the BND asserting that the\nNCY test results Mr. Pawlaczyk requested are exempt from disclosure pursuant to Section\n7(1\\(s) of FOIA.\n3) On January 19, 2011, this Office received the BND‘s Request for Review of\nCMS’ denial ofi ts FOIA request.\n4) Mr. Pawlaczyk'’s Request for Review was timely filed and otherwise complies\nwith Section 9.5 of FOIA (5 ILCS 140/9.5 (West 2009 Supp.}). Therefore, the Attorney General\nmay properly issue a binding opinion with respect to the disclosure of the records at issue.\n5) CMS has not produced to Mr. Pawlaczyk for inspection or copying the\nrequested NCYV test results,\n6) CMS, as a matter of law, has denied Mr. Pawlaczyk’s FOIA request by failing\nto furnish a copy of the NVC test results within the response period set forth in Section 3(d) of\nFOIA (3 ILCS 140/3¢d) (West 2009 Supp.)).\n7) CMS has not met its burden of demonstrating that the NCV test results are\nexempt from disclosure under Section 7(1)(s) of FOIA.\n8) The NCV test results requested by Mr. Pawlaezyk are public records that CMS\nis required to produce to Mr. Pawlaczyk for inspection and copying under Section 3 of FOIA (5\nILCS 140/3 (West 2009 Supp.)).\nMr. Robert Morgan\nApril 18, 2011!\nPage 7\nIn conclusion, it is the opinion of the Attorney General that CMS has, in violation\nofS ection 3 of the Freedom of Information Act, improperly denied Mr. Pawlaezyk's request for\naccess to and/or a copy ofa sample of 50 NCV test results. Accordingly, CMS is directed to take\nimmediate and appropriate action to comply with this opinion by furnishing the requested NCV\ntest results to Mr. Pawlaczyk. In accordance with Mr. Pawlaczyk's stipulation, the names of the\ntest subjects, their social security numbers and home addresses, as well as any other \"private\ninformation\" as defined in Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2009 Supp.}), may\nbe redacted.\"'\nThis opinion shail be considered a fina] decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2008). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\nGeorge Pawlaczyk as defendants. See 5 ILCS 140/11.5 (West 2009 Supp.).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Le. Lop\nMichael J. Luke\nCounsel to the Attorney General\nce: Mr. George Pawlaczyk\nBelleville News-Democrat\ngpawlaczyk@bnd.com\n‘In providing the documents to this Office, CMS redacted the names of the physicians who evaluated and signed the\ntest results. CMS has not provided any basis for redaction of physicians’ names and we do not find a basis to do so.","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested medical test results (NCV tests) from state workers' compensation claims, but the state agency refused to release them. The Attorney General ruled that these records are public and must be released, provided that personal identifiers like names and social security numbers are redacted to protect employee privacy.","card_headline":"Medical test results for workers' compensation claims","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-11946/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5() (West 2009 Supp.)).\nBACKGROUND\nOn January 3, 2011, Mr. George Pawlaczyk, a stalf reporter for the Be/leville\nNews-Democrat (BND), submitted a request via e-mail to the Department of Central\nManagement Services (CMS) seeking copies ofa sample of the records showing the results of\nNerve Conduction Velocity (NCY) tests that were conducted as part of State employees’ claims\nfor workers’ compensation in 2009.’ Specifically, Mr. Pawlaczyk sought copies of approximately\n50 NCV test results that were conducted in connection with settled workers’ compensation claims\nfor repetitive trauma injuries by emplovees of the Menard Correctional Center in 2009. Ina\nsupplemental e-mail on the same date, Mr. Pawlaczyk narrowed and clarified his request by\nstating: \"Why don't we agree right here in this message to the redaction of any personal identifier\n' E-mail from George Pawlaczyk, BND, to Sunny Clark, FOLA Officer, CMS Ganuary 3, 2011 at 11:17 am).\n300 South Second Sereet, Springfiehd Hlineis @27 My * GTP) TRI-TOME © PY NPT ES S469 @ Fax (217) FST 7odb\n\non these tests that would identify the patient. Name, SSN, address, etc., can be eliminated. We\nare primarily interested in the fest results and the written reports of the physicians who conducted\nthe tests. And the cost of the test.”?\nOn January 5, 2011, CMS sent a denial letter to Mr. Pawlaczyk asserting that the\nNCV test results are exempt from disclosure pursuant to Section 7(1)(s} of FOIA (5 ILCS\n140/7(1)(s) (West 2009 Supp.}), which exempts “[a]ny and all proprietary information and\nrecords related to the operation of an intergovernmental risk management association or self-\ninsurance pool or jointly self-administered health and accident cooperative or pool. Insurance or\nself insurance (including any intergovernmental risk management association or self insurance\npool) claims, loss or risk management information, records, data, advice or communications.”\nOn January 19, 2011, this Office received Mr. Pawlaczyk's Request for Review of\nCMS’ denial of his FOIA request.” This Office initiated further review of this matter on January\n24, 2011.* As requested, CMS provided this Office with its analysis of the applicability of the\nSection 7(1}(s) exemption and with a redacted sample ofa NCV test result on February 3, 20117\nIn its response letter, CMS argued:\nThe requested tests are maintained by CMS only in conjunction\nwith the operation of the State of Illinois Risk Management\nProgram. The plain language of [Section 7(1}(s}| leaves no\nquestion or ambiguity regarding the legislative intent to protect any\nand all risk management records from FOIA disclosure.\n? Email from George Pawlaczyk, BND, to Sunny Clark, FOIA Officer, CMS Ganuary 3, 201f at 4:18 pm). CMS\nhas not suggested that the disclosure of these records with personal identifiers redacted would reveal any medical\ninformation regarding individual test subjects that would be exempt under Section 7(/ (b). See Southern Hlingisan\nv. filinols Dept. of Public Health, 218 WL2d 390 (2006),\n* Letter from George Pawlaczyk, BND, to the Public Access Counselor, Office of the Attomey General January 18.\n2011).\n‘Letter from Matthew C. Rogina, Assistant Public Access Counselor, to Sunny Clark, FOIA Officer, CMS (lanuary\n24, 2011).\n* Letter from Bob Morgan, Deputy General Counsel — Employee Benefits, CMS, to Matthew Rogina, Assistant\nPublic Access Counselor (February 3, 2011), CMS provided this Office with copies of additional test results on\nMarch 16, 2011. CMS redacted all of the records that it provided to this Office to remove any information\n\nCMS asserted that Section 7(1})(s) “allows a public agency to deny any and all proprietary\ninformation, and any and all records related to the operation of the State of Hlinois Risk\nManagement program.\" (Emphasis in original.)\nOn February 20, 2011, Mr. Pawlaczyk responded to CMS' Jefter and argued that\nthe NCV test results are “not ‘proprietary’ in nature. Because they are connected to Workers’\nCompensation settlements that are already available as public records, how can it be argued that\nthe release oft hese records could in any way jeopardize or adversely affect the operation of a risk\nmanagement pool?\"* The newspaper further argued that “[i]t is inherent in the FOIA statute that\nrecords that may show whether the expenditure of public funds was proper, must be open to\npublic scrutiny. In this case, there is reason to suspect th[at] some of the tests, when reviewed by\nindependent medical experts, may show that no reason for corrective surgery existed and\ntherefore no expenditure of public funds was necessary to pay for Workers’ Compensation\nsettlements.” Mr. Pawlaczyk provided this Office with an additional response to CMS' letter on\nFebruary 21, 2011.”\nCMS supplemented its response on March 1, 2011, and stated that the NCV test\nresults \"are strictly a medical record used by CMS in the adjudication, evaluation, and settlement\nofa risk management claim” and that the “records are collected solely for the purpose oft he\noperation of the self-insurance Workers’ Compensation pool as described in 7(1}(s)\".* Further,\nCMS argued that the records are \"collected only for the internal use of the adjudication of\nworkers’ compensation claims with the Risk Management Division of CMS Bureau of Benefits.\"\nCMS also asserted that the NCV test results “are in the possession and custody of the Illinois\nDepartment of Insurance pursuant to an ongoing investigation. As such, CMS has no responsive\nrecords at this time.\"”\n° Letter from George Pawlaczyk and Beth Hundsdorfer, BND, to Matthew Rogina, Assistant Public Access\nCounselor, Office of the Attorney General (February 20, 2011).\n” E-mail from George Pawlaczyk and Beth Hundsdorfer, BND, to Matthew Rogina, Assistant Public Access\nCounselor, Office of the Attorney General (February 21, 2011 at 3:38 pm).\n® Letter from Bob Morgan, Deputy General Counsel — Benefits, CMS. to Matthew Rogina, Assistant Public Access\nCounselor, Office of the Attorney General (March J, 2011).\n° We note that the fact that another State agency has temporary custody of these records does not relieve CMS from\n\nANALYSIS\nSection 3(a) of FOIA (5 ILCS 140/3(a) (West 2009 Supp.)) provides that \"[e]ach\npublic body shall make available to any person for inspection or copying all public records,\nexcept as otherwise provided in Section 7 oft his Act.\" Under Section 1.2 of FOIA (5 ILCS\n140/1.2) (West 2009 Supp.)), “[a]ll records in the custody ofa public body are presumed to be\nopen to inspection and copying.\" In keeping with this presumption, the exemptions to disclosure\nare to be narrowly construed. Bawie v. Evanston Community Consolidated School District No.\n65, 128 Ill. 2d 373, 378 (1989). Section 1.2 further requires that °[a]ny public body that asserts\nthat a record is exempt from disclosure has the burden of proving by clear and convincing\nevidence that it is exempt.”\nCMS asserts that under Section 7(1)(s) it may withhold “any and all records\nrelated to the operation of the State of [mois Risk Management program.\" Because the NCV\ntest results are submitted to support State employees' claims for recovery from the workers’\ncompensation program which its Risk Management Division administers, CMS argues that\nSection 7(1)(s) applies. Specifically, CMS contends that the NC’V test results are exempt from\ndisclosure both as proprietary information related to a risk management association under the\nfirst sentence of Section 7(1)(s}, and also as claims, records and data under that section's second\nsentence.\nCMS's reliance on the first sentence of Section 7(1\\(s) to withhold these records.\nhowever, is clearly erroneous. The first sentence of Section 7(1}(s) exempts from disclosure\n\"proprietary information and records related to the operation of an infergovernmental risk\nmanagement association or self-insurance pool or jointly self-administered health and accident\ncooperative or pool.\" None of these terms is applicable to the State’s worker's compensation\nself-insurance program.\nAlthough CMS refers to the program at one point as an “intergovernmental risk\nmanagement association, funded through a self insurance pool,\"\"’ it is not an \"intergovernmental”\nprogram at all. The program covers only workers’ compensation claims against State agencies\nand State universities; it is purely intragovernmental in nature. Further, although it does\nconstitute a “self-insurance” program, if is not a “pool” within the common meaning of that term:\n\"an aggregation usu. made by a group and used mutually for the benefit of all.\" Webster's Third\n'°L etter from Bob Morgan, Deputy General Counsel — Employee Benefits, CMS, to Matthew Rogina, Assistant\n\nNew International Dictionary at 1764 (1981). In fact, claims are paid under the program from the\nWorkers' Compensation Revolving Fund (30 ILCS 105/6z-64 (West 2008). Other than Federal\nfunds received by CMS as a result of expenditures from the Fund, and amounts recovered\nthrough subrogation in workers’ compensation and workers’ occupational disease cases, the Fund\nis made up of State moneys and is not a pool of funds from multiple sources. Accordingly, the\nNCV test results are not exempt from disclosure under the first sentence of Section 7(1)(s) of\nFOIA,\nAdditionally, CMS asserted that the NCV test results are exempt from disclosure\nas \"insurance or self insurance * * * claims, loss or risk management information. records, data.\nadvice or communications” under the second sentence of Section 7(1(s). As explained in Public\nAccess Opinion No. 11-004, issued April 15, 2011, a copy of which is enclosed, Section 7(1)(s)\ndoes not exempt from disclosure information relating to individual \"claims\" or \"losses.\" Rather,\nthis provision exempts from disclosure only proprietary \"claims management,\" \"loss\nmanagement” and \"risk management” information such as the policies, procedures and practices\nthat a risk management association or self-insurance pool adopts to manage its claims, loss and\nrisk exposure, the release of which could disclose sensitive business policies or result in an untair\nadvantage to persons dealing with the entity.\nOur review of the test resulis confirms that these records consist exclusively of de-\nidentified medical findings about State employees who filed workers’ compensation claims with\nthe State of Illinois. CMS has not demonstrated how these anonymous test results constitute\nproprietary information that relates to the operation of CMS’ risk management program. The\nrecords do not pertain to the policies, procedures and practices that CMS has adopted to manage\nits claims, loss and risk exposure, or contain any other data that might disclose confidential\noperational information.\nThrough CMS, the State annually spends tens of millions of dollars on workers!\ncompensation claims for State employees. Following CMS' reasoning, all of the information that\nwould give insight into how CMS evaluated the claims and arrived at its decisions to settle\nclaims and make payments would be shielded from public review. CMS' arguments for a broad\nexemption for all records relating to the workers’ compensation program are not only\nunsupported by the language on Section 7(1)(s), but, if successful, would frustrate the purpose of\nSection 2,5 of FOIA (5 ILCS 140/2.5 (West 2009 Supp.)), which clearly provides that \"[a]ll\nrecords relating to the obligation, receipt, and use of public funds oft he State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\n\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor's findings, and the applicable law, the Attorney General finds that:\n1) On January 3, 2011, Mr. George Pawlaczyk submitted a FOIA request to\nCentral Management Services seeking copies of a sample of the records showing the results of\nNerve Conduction Velocity tests that were conducted as part of State employees’ claims for\nworkers' compensation in 2009. Mr. Pawlaczyk sought copies of approximately 50 NCV test\nresults that were conducted in connection with settled workers compensation claims for repetitive\ntrauma injuries by employees of Menard Correctional Center in 2009.\n2) On January 5, 2011, CMS sent a denial letter to the BND asserting that the\nNCY test results Mr. Pawlaczyk requested are exempt from disclosure pursuant to Section\n7(1\\(s) of FOIA.\n3) On January 19, 2011, this Office received the BND‘s Request for Review of\nCMS’ denial ofi ts FOIA request.\n4) Mr. Pawlaczyk'’s Request for Review was timely filed and otherwise complies\nwith Section 9.5 of FOIA (5 ILCS 140/9.5 (West 2009 Supp.}). Therefore, the Attorney General\nmay properly issue a binding opinion with respect to the disclosure of the records at issue.\n5) CMS has not produced to Mr. Pawlaczyk for inspection or copying the\nrequested NCYV test results,\n6) CMS, as a matter of law, has denied Mr. Pawlaczyk’s FOIA request by failing\nto furnish a copy of the NVC test results within the response period set forth in Section 3(d) of\nFOIA (3 ILCS 140/3¢d) (West 2009 Supp.)).\n7) CMS has not met its burden of demonstrating that the NCV test results are\nexempt from disclosure under Section 7(1)(s) of FOIA.\n8) The NCV test results requested by Mr. Pawlaezyk are public records that CMS\nis required to produce to Mr. Pawlaczyk for inspection and copying under Section 3 of FOIA (5\nILCS 140/3 (West 2009 Supp.)).\nMr. Robert Morgan\nApril 18, 2011!\nPage 7\nIn conclusion, it is the opinion of the Attorney General that CMS has, in violation\nofS ection 3 of the Freedom of Information Act, improperly denied Mr. Pawlaezyk's request for\naccess to and/or a copy ofa sample of 50 NCV test results. Accordingly, CMS is directed to take\nimmediate and appropriate action to comply with this opinion by furnishing the requested NCV\ntest results to Mr. Pawlaczyk. In accordance with Mr. Pawlaczyk's stipulation, the names of the\ntest subjects, their social security numbers and home addresses, as well as any other \"private\ninformation\" as defined in Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2009 Supp.}), may\nbe redacted.\"'\nThis opinion shail be considered a fina] decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2008). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook County or Sangamon County\nwithin 35 days of the date of this decision naming the Attorney General of Illinois and Mr.\nGeorge Pawlaczyk as defendants. See 5 ILCS 140/11.5 (West 2009 Supp.).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: Le. Lop\nMichael J. Luke\nCounsel to the Attorney General\nce: Mr. George Pawlaczyk\nBelleville News-Democrat\ngpawlaczyk@bnd.com\n‘In providing the documents to this Office, CMS redacted the names of the physicians who evaluated and signed the\ntest results. CMS has not provided any basis for redaction of physicians’ names and we do not find a basis to do so."}
{"id":223,"orig_master_id":19423,"dup_master_id":19197,"dup_sha256":"e50f230d5eb405da0249fb0a6f064e3baeb9e45f246031ae1f118ea69624e2c8","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-04-15","case_number":"2011 PAC 12406","request_numbers":null,"title":"City of Des Plaines must disclose unredacted settlement agreements under FOIA","filename":"PUBLIC ACCESS OPINION No. 11-004  (Request for Review - 2011 PAC 12406).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 11-004  (Request for Review - 2011 PAC 12406).pdf","word_count":2940,"summary":"This document is a Public Access Opinion regarding the disclosure of settlement agreements under the Freedom of Information Act (FOIA) in Illinois. It addresses the applicability of FOIA to settlement agreements made by public bodies.","plain_summary":"The requester, a newspaper editor, sought copies of settlement agreements resolving two employee lawsuits against a city, and the city disclosed the agreements but redacted the specific settlement dollar amounts as risk-management claims information. The Public Access Counselor held that the exemption protects only an insurance pool's proprietary claims-management policies and procedures, not the amount paid to settle an individual claim, and that settlement agreements must otherwise be disclosed in full under FOIA's settlement-agreement provision. The city was directed to furnish unredacted copies of the settlement agreements.","holding":"Settlement agreements entered into by an intergovernmental risk management association or self-insurance pool on behalf of a public body are subject to disclosure under FOIA.","legal_question":"Are settlement agreements made by public bodies subject to disclosure under the Freedom of Information Act?","disposition":"violation_found","primary_statute":["5 ILCS 140/2.20","5 ILCS 140/7(1)(s)"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(s)"],"public_body":"City of Des Plaines","requesting_party":"Mr. Todd Wessell","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"settlement agreements","subject_description":"The request concerned access to unredacted settlement agreements involving former City of Des Plaines employees.","ocr_status":"ok","ocr_quality":89.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-004.pdf","sha256":"2e380ed59204c67b19acfb58ff84aa5ff060203cb2392fda598a6556bd017fe0","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["settlement agreement","public records","FOIA","insurance pool","disclosure"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan\nATTORNEY GENERAL ©\nApril 15, 2011\nPUBLIC ACCESS OPINION No. 11-004\n(Request for Review — 2011 PAC 12406)\nFREEDOM OF INFORMATION ACT\nRedaction of Settlement Agreements:\nUnder Section 2.20 of FOIA, settlement agreements\nentered into by an intergovernmental risk management\nassociation or self-insurance pool on behalf of a public\nbody are subject to disclosure. Section 7(1)(s) does\nnot exempt from disclosure the amount of funds expended\nto settle a claim: .\nMr. Paul Keller\nAncel, Glink, Diamond, Bush, DiCanni & Krafthefer, P.C.\n[street address redacted for site publication -- see original PDF]\nPKeller@ancelglink.com\nDear Mr. Keller:\nThis binding opinion is issued pursuant to Section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2009 Supp.)).\nBACKGROUND\nOn September 21, 2007, Mr. James Brookman, a former employee of the City of\nDes Plaines (City), filed a lawsuit in the Circuit Court of Cook County against the City, its fire\nchief, human resources director, and village manager.' On July 17, 2009, James Kedrowski,\nanother former City employee, filed a lawsuit against the City and its fire chiefi n the Circuit\nCourt of Cook County.\"\n' Brookman y. City ofD es Plaines, Docket No. 07 CH 26507 (Circuit Court, Cook County).\n? Kedrowski v. City of Des Plaines, Docket No. 09 CH 24151 (Circuit Court, Cook County).\n500 South Second Street, Springfield, Illinvis 62706 ¢ 22 17) 782-1090 © TYY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 ¢ (312) 814-3000 © TTY: (800) 904-3013 © Fux: (312) 814-3806\n1001 East Main, Carbondale, Hlinois 02901 © (618) 529-6400 ¢ TTY: (877) 675-9339 © Fax: (618) 529-o416 Ges\nMr. Paul Keller\nApril 15, 2011\nPage 2\n_ On April 9, 2010, the City reached a settlement with Mr. Kedrowski. On\nNovember 30, 2010, the City reached a settlement with Mr. Brookman. In each case, the court\ndismissed the lawsuit upon the execution of a written settlement agreement by the parties. Each\nsettlement agreement provided for the payment of a specific sum of money to the respective\nplaintiff.\nOn January 26, 2011, Mr. Todd Wessell, editor and publisher of the Journal and\nTopics Newspaper, submitted a FOIA request to the City seeking copies of “all details pertaining\nto the recent settlement agreement involving former Des Plaines firefighter Jim Brookman”? and\nthe settlement agreement involving Mr. Kedrowski.\n’ On February 7, 2011, Mr. Paul N. Keller of Ancel, Glink, Diamond, Bush,\nDiCann&i Krafthefer, P.C. (Ancel Glink), on behalf of the City and the Municipal Insurance\nCooperative Association (MICA), a governmental risk self-insurance pool of which the City is a\nmember, provided Mr: Wessell with a copy of the settlement agreements. However, Mr. Keller\nredacted from each agreement the specific dollar amount paid to the plaintiffs, citing as his basis\nSection 7(1)(s) of FOIA (5 ILCS 140/7(1)(s) (West 2009 Supp.)), which permits a public body\nto withhold from disclosure “[i]nsurance or self-insurance (including any intergovernmental risk\nmanagement association or self insurance pool) claims, loss or risk management information,\nrecords, data, advice or communications.” The City’s redaction of information contained in the\nrequested documents constituted a denial, in part, of Mr. Wessell’s request, thereby triggering the\nPublic Access Counselor’s authority to review whether the City’s response complied with the\nrequirements,o f FOIA. See 5 ILCS 140/9.5 (West 2009 Supp.).\nOn February 14, 2011, Esther Seitz of Donald M. Craven, P.C., on behalf of Mr.\nWessell, submitted to the Public Access Counselor a Request for Review of the City’s response.*\nThis office initiated further review of this matter on February 24, 2011.° We requested from the\nCity an unredacted copy of each settlement agreement. We also requested that the City provide a\nwritten explanation of its determination that Section 7(1)(s) permits it to redact the specific dollar\namounts in settlement agreements, particularly in light of Section 2.20 of FOIA (5 ILCS 140/2.20\n3 Letter from Todd Wessell, Editor & Publisher, Journal and Topics Newspaper, to Gloria Ludwig, City Clerk, City\nof Des Plaines (January 26, 2011)..\n4 Letter from Esther Seitz, Donald M. Craven, P.C., to Amalia Rioja, Acting Public Access Counselor, Office of the\nAttorney General (February 14, 2011). The€ request was received by the Public Access Counselor on February 15,\n2011. ;\n5 Letter from Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General, to Ellen K.\nEmery, Ancel Glink (February 24, 2011).\nMr. Paul Keller\nApril 15, 2011\nPage 3\n(West 2009 Supp.)); which provides that “[a]ll settlement agreements entered into by or on\nbehalf of a public body are public records subject to inspection and copying by the public,\nprovided that information exempt from disclosure under Section 7 of this Act may be\nredacted[,]” and Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2009 Supp.)), which provides that\n“all records relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.”\nOn March 3, 2011, Ancel Glink submitted a response letter on behalf of the City,\ntogether with unredacted copies of the settlement agreements in Mr. Brookman’s and Mr.\nKedroski’s cases.° In the letter, the City argued that:\n‘The documents at issue here are agreements in settlement\nof lawsuits filed against the City alleging injury. Des Plaines is a\nmember of the Municipal Insurance Cooperative Association\n(MICA), a governmental self insurance pool. See, Antiporek v.\nVillage of Hillside, 114 Ill. 2d 246, 499 N.E.2d 307 (1986); Pritza\n‘vy. Village of Lansing, et al. -- Ill. App. 3d --, 940 N.E.2d 1164 (1*\nDist. 11/24/10). Payment of the amounts specified ii n the\nsettlement agreement was made by MICA, not by the City. Claims\npaidby MICA on behalf of Des Plaines are funded by pooled\ncontributions of all members of MICA and are not funds of the\nCity.\nThe. City contended that because MICA paid the settlements from the pooled\ncontributions of all MICA members, and not from City funds, Section 2.5 of FOIA does not\napply to the agreements. Further, although the City conceded that settlement agreements are\nsubject to disclosure pursuant to Section 2.20 of FOIA, the City asserted that the specific dollar\namount of each settlement may be redacted pursuant to Section 7(1)(s).\nMs. Seitz, on behalf of Mr. Wessell, responded to Mr. Keller’s letter on March 15,\n2011.’ Ms. Seitz argued that the City’s position that Section 2.5 is inapplicable “subverts the\nintent of’ FOIA. Ms. Seitz contended that the:critical issue under Section 2.5 is whether the\n* Letter from Paul N. Keller,A ncel Glink, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the\nAttorney General (March 3, 201 1).\n7 Letter from Esther Seitz, Donald M. Craven, P.C., to Matthew Rogina, Assistant Public Access Counselor, Office\nof the Attorney General (March 15, 2011).\nMr. Paul Keller\n‘April 15, 2011\nPage 4\nfunds involved are public funds, and that Section 2.5 is applicable and requires disclosure of the\nsettlement amounts because “the amounts paid out under the settlement agreements are public\nfunds; they were pooled from various municipalities, including the City.”\nThe City responded to Ms. Seitz’s letter on March 16, 2011, and argued that\nwhether the settlement payments “constitute ‘use of public fiinds’ is not the issue in this matter.”\nInstead, the City asserted, the exemption in Section 7(1)(s), which is “expressly incorporated”\ninto Section 2.20, provides for the redaction of “claims, loss or risk management information”\nand “[t]he amount paid in settlement of a claim is clearly claims or loss information.”\n“We agree with the City that, under these circumstances, the only issue that\nrequires resolution is whether the settlement amounts are exempted from disclosure by Section\n7(1)(s) of FOIA. We conclude that they are not. .\nANALYSIS\nUnder Section 1.2 of FOIA (5 ILCS 140/1.2, (West 2009 Supp.)), “{a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection and copying.”\nIn keeping with this presumption, the exemptions to disclosure are to be narrowly construed.\nBowie v. Evanston Community Consolidated School District No. 65, 128 Il. 2d 373, 378 (1989).\nSection 1.2 further requires.that “[a]ny public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.”\nThe City does not dispute that the settlement agreements are subject to disclosure,\nbut asserts that, under Section 2.20 of FOIA, it may redact the settlement amounts from the\nagreements pursuant to Section 7(1)(s) of FOIA, which exempts from disclosure:\n_ Any and all proprietary information and records related to\nthe operation of an intergovernmental risk management association\nor self-insurance pool or jointly self-administered health and\naccident cooperative or pool. Insurance or self insurance\n(including any intergovernmental risk management association or\nself insurance pool) claims, loss or risk management information,\nrecords, data, advice or communications.\nThe City contends that the amounts of the settlements constitute “claims or loss information”\nwhich is therefore exempt from disclosure under the second sentence of Section 7(1)(s). The\nCity, however, construes the scope of that exemption too broadly.\nMr. Paul Keller -\nApril 15, 2011\nPage 5\n. The City would interpret the phrase “claims, loss or risk management\ninformation” to mean “claims information,” “loss information” and “risk management\ninformation.” The phrasei s equally susceptible of another interpretation, however. It may also\nbe read as exempting “claims management information” and “loss management information,” as\nwell as “risk management information.” “A statute is ambiguous when it is capable of being\nunderstood by reasonably well-informed persons in two or more different senses. * * * Where\nthe language of a statute is ambiguous, it is appropriate to consider other sources to ascertain the\nlegislature's intent.” People v. Jameson, 162 Ill. 2d 282, 288 (1994).°\nGiven the nature of the ambiguity present in the language of Section 7(1)(s), the\ncourt’s analysis of similarly ambiguous statutory language in People v. Qualls, 365 Ill. App. 3d\n1015, 1020 (2006), is apropos:\nHere, the doctrine of noscitur a sociis-- “a word is known |\nby the company it keeps” --is particularly applicable. Pursuant to\nthis maxim, “{t]he meaning of questionable words or phrases in a\nstatute may be ascertained by reference to the meaning of words or\nphrases associated with it.” The doctrine of noscitur a sociis is\nrelied upon “to avoid ascribing to one word a meaning so. broad\nthat it is inconsistent with its accompanying words” and “to avoid\nthe giving of unintended breadth to a legislative act.”\nInitially, it is clear that Section 7(1)(s)i s not intended to exempt from disclosure\nall information relating to intergovernmental risk management associations or self-insurance\npools. Rather, Section 7(1)(s) protects from disclosure “proprietary information and records\nrelated to the operation of an intergovernmental risk management association or self-insurance\npool” (emphasis added), the release of which could, for example, disclose sensitive business\npolicies or result in an unfair advantage to persons dealing with the entity. The meaning of other\nterms usedi n Section 71)(s) relating to records must be interpreted consistently with this\npurpose.\nAccordingly, under the doctrine of noscituar sociis, the associated term\n“management” modifies and qualifies the terms “claims,” “loss,” and “risk.” In the insurance\ncontext, the term “claim” refers generally-to “[a] formal request for payment related to an event\n8 In Public Access Opinion No. 10-004, issued December 29, 2010, this office concluded that the language of\nSection 2.20 is unambiguous to the extent that settlement agreements entered into by a public body or on its behalf\nare “public records subject to inspection and copying by the public.” Opinion No: 10-004 did not, however, address\nthe provisions of Section 7(1)(s). .\nMr. Paul Keller\nApril 15, 2011\nPage 6\nor situation that is covered under an in-force insurance policy.” The term “loss” means “[t]he\ndollar amount associated with a claim.” The term “risk” refers to “uncertainty of a financial\nloss.”® In the general business sense, “management” is “[t]he organization and coordination of\nthe activities of an enterprise in accordance with certain policies and in achievement of defined\nobjectives.”\"°\nTherefore, what Section 7(1)(s) exempts from disclosure is proprietary\ninformation regarding the policies, procedures, and practices that an intergovernmental risk\nmanagement association or self-insurance pool adopts to manage its claims, loss, and risk\nexposure. It does not exempt from disclosure discreet information relating to an individual claim\nor loss, including the amount of funds that are allocated to settle a claim.\n; Indeed, taken to its extreme, the interpretation advocated by the City could\ncompletely subsume Section 2.20. If “claims information” may be withheld from disclosure,\nthen it could be argued, for example, that the recitation of the allegations and the operative facts\nset out in a settlement agreement are exempt. It is clear that the General Assembly intended for\nthe public to have meaningful access to settlement agreements entered into by or on behalf of\npublic bodies. If a public body could redact from a settlement agreement all information\nregarding the nature of a claim and the amount paid to settle it, then production of the redacted\ndocument would provide little or no insight into the conduct of government.\nThe City has not alleged that it does not have in its possession copies of the\nsettlement agreements that Mr. Wessel requested. To the contrary, it appears that Mr. Keller, the\nCity’s representative, does possess copies of the requested documents. These documents are\nclearly “settlement agreements entered into by or on behalf of [the City and] are public records\nsubject to inspection and copying by the public{.]” Because the City possesses copies of the\nsettlement agreements which it is obligated under Section 2.20 to furnish to Mr. Wessel, it is not\nnecessary to address the applicability of Section 2.5 of FOIA to these documents in order to\nresolve this request, because the source of the funds used to pay the claims has no bearing on the\nCity’s duty to produce the documents.\n° National Association of Insurance Commissioners, “Glossary of Insurance Terms,” available at:\nhttp://www.naic.org/consumer_glossary.htm.\n'° BusinessDictionary.com, availabalet: http://www.b usinessdictionary.com/definition/management.html.\nMr. Paul Keller\nApril 15, 2011\nPage 7\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor’s findings, and the applicable law, the Attorney General finds that:\n1) On January 26, 2011, Mr. Todd Wessell submitted a Freedom of Information\nAct request to the City of Des Plaines seeking copies of “all details pertaining to the recent\nsettlement agreement involving Des Plaines firefighter Jim Brookman” and the settlement\nagreement involving former employee James Kedrowski.\n2) On February 7, 2011, Mr. Paul Keller, on behalf of the City and the Municipal\nInsurance Cooperative Association, a governmental risk self-insurance pool of which the City is\na member, provided Mr. Wessell with copies of the settlement agreements. However, Mr. Keller\nredacted from each agreement the specific dollar amount paid to the plaintiffs.\n3) The City, as a matter of law, partially denied Mr. Wessell’s FOIA request by\nredacting information from the copies of the settlement agreements.\n4) On February 14, 2011, Esther Seitz, Don M. Craven, P.C., on behalf of Mr.\nWessell, submitted to the Public Access Counselor a Request for Review of the City’s February\n7, 2011, response.\n5) The Request for Review was timely filed and otherwise complies with the\nrequirements of Section 9.5 of FOIA. Therefore, the Attorney General may properly issue a\nbinding opinion with respect to the disclosure of the records at issue.\n6) The settlement agreements requested by Mr. Wessell are public records that\nthe City is required to produce to Mr. Wessell for inspection and copying pursuant to Section\n2.20 of FOIA, subject only to permissible redactions under Section 7 of the Act.\n7) The City has not met its burden of proving by clear and convincing evidence\nthat it may withhold from disclosure the specific dollar amounts paid to Mr. Brookman and Mr.\nKedroski as part of the settlement of the cases in question. To the contrary, the Attorney General\nfinds that Section 7(1)(s) exempts from disclosure only proprietary information regarding the\npolicies, procedures, and practices that an intergovernmental risk management association or\nself-insurance pool adopts to manage its claims, loss, and risk exposure. It does not exempt from\ndisclosure discreet information relating to an individual claim or loss, including the amount of\nfunds that are allocated to settle a claim.\nMr. Paul Keller\nApril 15, 2011\nPage 8\nIn conclusion, it is the opinion of the Attorney General that the City has, in .\nviolation of the requirements of the Freedom of Information Act, improperly denied Mr.\nWessell’s request for access to and/or a copy of the settlement agreements. Accordingly, the City\nis directed to take immediate and appropriate action to comply with this opinion by furnishing\nunredacted copies of the settlement agreements to Mr. Wessel.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2008). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Todd Wessell as\ndefendants. See 5 ILCS 140/11.5 (West 2009 Supp.).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: CMaeteerije ee\nMichael J. Luke\nCounsel to the Attorney General\nce: Ms. Esther Seitz\nDon M. Craven, P.C.\n- esther@cravenlawoffice.com\nMr. Todd Wessell\nEditor and Publisher\nJournal and Topics Newspapers\n622 Graceland Avenue\nDes Plaines, Illinois 60016","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A newspaper editor requested copies of settlement agreements involving the City of Des Plaines. The City provided redacted copies, withholding only the dollar amounts paid, citing a FOIA exemption for insurance claim information. The Illinois Attorney General ruled that Section 7(1)(s) of FOIA does not exempt the settlement amounts from disclosure, so those figures must be released. This means public bodies cannot use a self-insurance pool exemption to hide the monetary payment in a settlement agreement.","card_headline":"Unredacted settlement agreements with former employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-12406/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2009 Supp.)).\nBACKGROUND\nOn September 21, 2007, Mr. James Brookman, a former employee of the City of\nDes Plaines (City), filed a lawsuit in the Circuit Court of Cook County against the City, its fire\nchief, human resources director, and village manager.' On July 17, 2009, James Kedrowski,\nanother former City employee, filed a lawsuit against the City and its fire chiefi n the Circuit\nCourt of Cook County.\"\n' Brookman y. City ofD es Plaines, Docket No. 07 CH 26507 (Circuit Court, Cook County).\n? Kedrowski v. City of Des Plaines, Docket No. 09 CH 24151 (Circuit Court, Cook County).\n500 \n\n_ On April 9, 2010, the City reached a settlement with Mr. Kedrowski. On\nNovember 30, 2010, the City reached a settlement with Mr. Brookman. In each case, the court\ndismissed the lawsuit upon the execution of a written settlement agreement by the parties. Each\nsettlement agreement provided for the payment of a specific sum of money to the respective\nplaintiff.\nOn January 26, 2011, Mr. Todd Wessell, editor and publisher of the Journal and\nTopics Newspaper, submitted a FOIA request to the City seeking copies of “all details pertaining\nto the recent settlement agreement involving former Des Plaines firefighter Jim Brookman”? and\nthe settlement agreement involving Mr. Kedrowski.\n’ On February 7, 2011, Mr. Paul N. Keller of Ancel, Glink, Diamond, Bush,\nDiCann&i Krafthefer, P.C. (Ancel Glink), on behalf of the City and the Municipal Insurance\nCooperative Association (MICA), a governmental risk self-insurance pool of which the City is a\nmember, provided Mr: Wessell with a copy of the settlement agreements. However, Mr. Keller\nredacted from each agreement the specific dollar amount paid to the plaintiffs, citing as his basis\nSection 7(1)(s) of FOIA (5 ILCS 140/7(1)(s) (West 2009 Supp.)), which permits a public body\nto withhold from disclosure “[i]nsurance or self-insurance (including any intergovernmental risk\nmanagement association or self insurance pool) claims, loss or risk management information,\nrecords, data, advice or communications.” The City’s redaction of information contained in the\nrequested documents constituted a denial, in part, of Mr. Wessell’s request, thereby triggering the\nPublic Access Counselor’s authority to review whether the City’s response complied with the\nrequirements,o f FOIA. See 5 ILCS 140/9.5 (West 2009 Supp.).\nOn February 14, 2011, Esther Seitz of Donald M. Craven, P.C., on behalf of Mr.\nWessell, submitted to the Public Access Counselor a Request for Review of the City’s response.*\nThis office initiated further review of this matter on February 24, 2011.° We requested from the\nCity an unredacted copy of each settlement agreement. We also requested that the City provide a\nwritten explanation of its determination that Section 7(1)(s) permits it to redact the specific dollar\namounts in settlement agreements, particularly in light of Section 2.20 of FOIA (5 ILCS 140/2.20\n3 Letter from Todd Wessell, Editor & Publisher, Journal and Topics Newspaper, to Gloria Ludwig, City Clerk, City\nof Des Plaines (January 26, 2011)..\n4 Letter from Esther Seitz, Donald M. Craven, P.C., to Amalia Rioja, Acting Public Access Counselor, Office of the\nAttorney General (February 14, 2011). The€ request was received by the Public Access Counselor on February 15,\n2011.;\n5 Letter from Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General, to Ellen K.\n\n(West 2009 Supp.)); which provides that “[a]ll settlement agreements entered into by or on\nbehalf of a public body are public records subject to inspection and copying by the public,\nprovided that information exempt from disclosure under Section 7 of this Act may be\nredacted[,]” and Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2009 Supp.)), which provides that\n“all records relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.”\nOn March 3, 2011, Ancel Glink submitted a response letter on behalf of the City,\ntogether with unredacted copies of the settlement agreements in Mr. Brookman’s and Mr.\nKedroski’s cases.° In the letter, the City argued that:\n‘The documents at issue here are agreements in settlement\nof lawsuits filed against the City alleging injury. Des Plaines is a\nmember of the Municipal Insurance Cooperative Association\n(MICA), a governmental self insurance pool. See, Antiporek v.\nVillage of Hillside, 114 Ill. 2d 246, 499 N.E.2d 307 (1986); Pritza\n‘vy. Village of Lansing, et al. -- Ill. App. 3d --, 940 N.E.2d 1164 (1*\nDist. 11/24/10). Payment of the amounts specified ii n the\nsettlement agreement was made by MICA, not by the City. Claims\npaidby MICA on behalf of Des Plaines are funded by pooled\ncontributions of all members of MICA and are not funds of the\nCity.\nThe. City contended that because MICA paid the settlements from the pooled\ncontributions of all MICA members, and not from City funds, Section 2.5 of FOIA does not\napply to the agreements. Further, although the City conceded that settlement agreements are\nsubject to disclosure pursuant to Section 2.20 of FOIA, the City asserted that the specific dollar\namount of each settlement may be redacted pursuant to Section 7(1)(s).\nMs. Seitz, on behalf of Mr. Wessell, responded to Mr. Keller’s letter on March 15,\n2011.’ Ms. Seitz argued that the City’s position that Section 2.5 is inapplicable “subverts the\nintent of’ FOIA. Ms. Seitz contended that the:critical issue under Section 2.5 is whether the\n* Letter from Paul N. Keller,A ncel Glink, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the\nAttorney General (March 3, 201 1).\n7 Letter from Esther Seitz, Donald M. Craven, P.C., to Matthew Rogina, Assistant Public Access Counselor, Office\nof the Attorney General (March 15, 2011).\nMr. Paul Keller\n‘\n\nfunds involved are public funds, and that Section 2.5 is applicable and requires disclosure of the\nsettlement amounts because “the amounts paid out under the settlement agreements are public\nfunds; they were pooled from various municipalities, including the City.”\nThe City responded to Ms. Seitz’s letter on March 16, 2011, and argued that\nwhether the settlement payments “constitute ‘use of public fiinds’ is not the issue in this matter.”\nInstead, the City asserted, the exemption in Section 7(1)(s), which is “expressly incorporated”\ninto Section 2.20, provides for the redaction of “claims, loss or risk management information”\nand “[t]he amount paid in settlement of a claim is clearly claims or loss information.”\n“We agree with the City that, under these circumstances, the only issue that\nrequires resolution is whether the settlement amounts are exempted from disclosure by Section\n7(1)(s) of FOIA. We conclude that they are not..\nANALYSIS\nUnder Section 1.2 of FOIA (5 ILCS 140/1.2, (West 2009 Supp.)), “{a]ll records in\nthe custody or possession of a public body are presumed to be open to inspection and copying.”\nIn keeping with this presumption, the exemptions to disclosure are to be narrowly construed.\nBowie v. Evanston Community Consolidated School District No. 65, 128 Il. 2d 373, 378 (1989).\nSection 1.2 further requires.that “[a]ny public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.”\nThe City does not dispute that the settlement agreements are subject to disclosure,\nbut asserts that, under Section 2.20 of FOIA, it may redact the settlement amounts from the\nagreements pursuant to Section 7(1)(s) of FOIA, which exempts from disclosure:\n_ Any and all proprietary information and records related to\nthe operation of an intergovernmental risk management association\nor self-insurance pool or jointly self-administered health and\naccident cooperative or pool. Insurance or self insurance\n(including any intergovernmental risk management association or\nself insurance pool) claims, loss or risk management information,\nrecords, data, advice or communications.\nThe City contends that the amounts of the settlements constitute “claims or loss information”\nwhich is therefore exempt from disclosure under the second sentence of Section 7(1)(s). The\n\n. The City would interpret the phrase “claims, loss or risk management\ninformation” to mean “claims information,” “loss information” and “risk management\ninformation.” The phrasei s equally susceptible of another interpretation, however. It may also\nbe read as exempting “claims management information” and “loss management information,” as\nwell as “risk management information.” “A statute is ambiguous when it is capable of being\nunderstood by reasonably well-informed persons in two or more different senses. * * * Where\nthe language of a statute is ambiguous, it is appropriate to consider other sources to ascertain the\nlegislature's intent.” People v. Jameson, 162 Ill. 2d 282, 288 (1994).°\nGiven the nature of the ambiguity present in the language of Section 7(1)(s), the\ncourt’s analysis of similarly ambiguous statutory language in People v. Qualls, 365 Ill. App. 3d\n1015, 1020 (2006), is apropos:\nHere, the doctrine of noscitur a sociis-- “a word is known |\nby the company it keeps” --is particularly applicable. Pursuant to\nthis maxim, “{t]he meaning of questionable words or phrases in a\nstatute may be ascertained by reference to the meaning of words or\nphrases associated with it.” The doctrine of noscitur a sociis is\nrelied upon “to avoid ascribing to one word a meaning so. broad\nthat it is inconsistent with its accompanying words” and “to avoid\nthe giving of unintended breadth to a legislative act.”\nInitially, it is clear that Section 7(1)(s)i s not intended to exempt from disclosure\nall information relating to intergovernmental risk management associations or self-insurance\npools. Rather, Section 7(1)(s) protects from disclosure “proprietary information and records\nrelated to the operation of an intergovernmental risk management association or self-insurance\npool” (emphasis added), the release of which could, for example, disclose sensitive business\npolicies or result in an unfair advantage to persons dealing with the entity. The meaning of other\nterms usedi n Section 71)(s) relating to records must be interpreted consistently with this\npurpose.\nAccordingly, under the doctrine of noscituar sociis, the associated term\n“management” modifies and qualifies the terms “claims,” “loss,” and “risk.” In the insurance\ncontext, the term “claim” refers generally-to “[a] formal request for payment related to an event\n8 In Public Access Opinion No. 10-004, issued December 29, 2010, this office concluded that the language of\nSection 2.20 is unambiguous to the extent that settlement agreements entered into by a public body or on its behalf\nare “public records subject to inspection and copying by the public.” Opinion No: 10-004 did not, however, address\n\nor situation that is covered under an in-force insurance policy.” The term “loss” means “[t]he\ndollar amount associated with a claim.” The term “risk” refers to “uncertainty of a financial\nloss.”® In the general business sense, “management” is “[t]he organization and coordination of\nthe activities of an enterprise in accordance with certain policies and in achievement of defined\nobjectives.”\"°\nTherefore, what Section 7(1)(s) exempts from disclosure is proprietary\ninformation regarding the policies, procedures, and practices that an intergovernmental risk\nmanagement association or self-insurance pool adopts to manage its claims, loss, and risk\nexposure. It does not exempt from disclosure discreet information relating to an individual claim\nor loss, including the amount of funds that are allocated to settle a claim.\n; Indeed, taken to its extreme, the interpretation advocated by the City could\ncompletely subsume Section 2.20. If “claims information” may be withheld from disclosure,\nthen it could be argued, for example, that the recitation of the allegations and the operative facts\nset out in a settlement agreement are exempt. It is clear that the General Assembly intended for\nthe public to have meaningful access to settlement agreements entered into by or on behalf of\npublic bodies. If a public body could redact from a settlement agreement all information\nregarding the nature of a claim and the amount paid to settle it, then production of the redacted\ndocument would provide little or no insight into the conduct of government.\nThe City has not alleged that it does not have in its possession copies of the\nsettlement agreements that Mr. Wessel requested. To the contrary, it appears that Mr. Keller, the\nCity’s representative, does possess copies of the requested documents. These documents are\nclearly “settlement agreements entered into by or on behalf of [the City and] are public records\nsubject to inspection and copying by the public{.]” Because the City possesses copies of the\nsettlement agreements which it is obligated under Section 2.20 to furnish to Mr. Wessel, it is not\nnecessary to address the applicability of Section 2.5 of FOIA to these documents in order to\nresolve this request, because the source of the funds used to pay the claims has no bearing on the\nCity’s duty to produce the documents.\n° National Association of Insurance Commissioners, “Glossary of Insurance Terms,” available at:\nhttp://www.naic.org/consumer_glossary.htm.\n'° BusinessDictionary.com, availabalet: http://www.b usinessdictionary.com/definition/management.html.\n\nFINDINGS AND CONCLUSIONS\nAfter full review and giving due consideration to the arguments of the parties, the\nPublic Access Counselor’s findings, and the applicable law, the Attorney General finds that:\n1) On January 26, 2011, Mr. Todd Wessell submitted a Freedom of Information\nAct request to the City of Des Plaines seeking copies of “all details pertaining to the recent\nsettlement agreement involving Des Plaines firefighter Jim Brookman” and the settlement\nagreement involving former employee James Kedrowski.\n2) On February 7, 2011, Mr. Paul Keller, on behalf of the City and the Municipal\nInsurance Cooperative Association, a governmental risk self-insurance pool of which the City is\na member, provided Mr. Wessell with copies of the settlement agreements. However, Mr. Keller\nredacted from each agreement the specific dollar amount paid to the plaintiffs.\n3) The City, as a matter of law, partially denied Mr. Wessell’s FOIA request by\nredacting information from the copies of the settlement agreements.\n4) On February 14, 2011, Esther Seitz, Don M. Craven, P.C., on behalf of Mr.\nWessell, submitted to the Public Access Counselor a Request for Review of the City’s February\n7, 2011, response.\n5) The Request for Review was timely filed and otherwise complies with the\nrequirements of Section 9.5 of FOIA. Therefore, the Attorney General may properly issue a\nbinding opinion with respect to the disclosure of the records at issue.\n6) The settlement agreements requested by Mr. Wessell are public records that\nthe City is required to produce to Mr. Wessell for inspection and copying pursuant to Section\n2.20 of FOIA, subject only to permissible redactions under Section 7 of the Act.\n7) The City has not met its burden of proving by clear and convincing evidence\nthat it may withhold from disclosure the specific dollar amounts paid to Mr. Brookman and Mr.\nKedroski as part of the settlement of the cases in question. To the contrary, the Attorney General\nfinds that Section 7(1)(s) exempts from disclosure only proprietary information regarding the\npolicies, procedures, and practices that an intergovernmental risk management association or\nself-insurance pool adopts to manage its claims, loss, and risk exposure. It does not exempt from\ndisclosure discreet information relating to an individual claim or loss, including the amount of\n\nIn conclusion, it is the opinion of the Attorney General that the City has, in.\nviolation of the requirements of the Freedom of Information Act, improperly denied Mr.\nWessell’s request for access to and/or a copy of the settlement agreements. Accordingly, the City\nis directed to take immediate and appropriate action to comply with this opinion by furnishing\nunredacted copies of the settlement agreements to Mr. Wessel.\nThis opinion shall be considered a final decision of an administrative agency for\nthe purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101\net seq. (West 2008). An aggrieved party may obtain judicial review of the decision by filing a\ncomplaint for administrative review in the Circuit Court of Cook or Sangamon County within 35\ndays of the date of this decision naming the Attorney General of Illinois and Mr. Todd Wessell as\ndefendants. See 5 ILCS 140/11.5 (West 2009 Supp.).\nVery truly yours,\nLISA MADIGAN\nATTORNEY GENERAL\nBy: CMaeteerije ee\nMichael J. Luke\nCounsel to the Attorney General\nce: Ms. Esther Seitz\nDon M. Craven, P.C.\n- esther@cravenlawoffice.com\nMr. Todd Wessell\nEditor and Publisher\nJournal and Topics Newspapers\n622 Graceland Avenue\nDes Plaines, Illinois 60016"}
{"id":224,"orig_master_id":19198,"dup_master_id":19428,"dup_sha256":"7bb1932305bd055469da0e5e173cb89330db7fad18fdc4f3a8fd29f957f25934","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-11-15","case_number":"2011 PAC 15916","request_numbers":null,"title":"Public Records -- Electronic records relating to the transaction of public business are \"public records\" subject to disclosure under section 2(c) of FOIA notwithstanding that they are generated on public officials’ private equipment and/or maintained on personal electronic accounts.","filename":"PUBLIC ACCESS OPINION No. 11-006  (Request for Review - 2011 PAC 15916).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION No. 11-006  (Request for Review - 2011 PAC 15916).pdf","word_count":2368,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a FOIA request for electronic communications related to public business. It clarifies that such records are subject to disclosure even if generated on private equipment.","plain_summary":"The requester, a newspaper reporter, sought electronic communications sent and received by city council members and the mayor during meetings, and the city withheld all messages generated on officials' privately owned phones and email accounts as not being in the city's possession. The Public Access Counselor held that electronic communications pertaining to the transaction of public business are public records subject to FOIA regardless of whether they are stored on an official's personal device, though purely personal communications remain outside the Act's scope. The city was directed to furnish the withheld communications relating to public business.","holding":"Electronic records relating to public business are considered public records subject to disclosure under FOIA.","legal_question":"Are electronic records generated on public officials’ private equipment subject to disclosure under FOIA?","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/2(c), 5 ILCS 140/1, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":"7(1)(b)","public_body":"City of Champaign","requesting_party":"Crowley","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"electronic communications","subject_description":"The request sought electronic communications, including text messages and emails, sent by city council members and the mayor during public meetings.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-006.pdf","sha256":"c676d3a6338900ae4120413b02cca81a6e95e015c9cbf5c1fd7a285139ab654e","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["private devices","text messages","email","public records","city council"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL November 15, 2011 Public Access Opinion No. 11-006 (Request for Review — 2011 PAC 15916) FREEDOM OF INFORMATION ACT: Public Records -- Electronic records relating to the transaction of public business are \"public records\" subject to disclosure under section 2(c) of FOIA notwithstanding that they are generated on public officials’ private equipment and/or maintained on personal electronic accounts. Via Electronic Mail Ms. Trisha Crowley Deputy City Attorney City of Champaign 15 East Main Street Champaign, Illinois 61820 trisha.crowley@ci.champaign.il.us Dear Ms. Crowley: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). BACKGROUND On July 15, 2011, Mr. Patrick Wade, staff reporter for The News Gazette, submitted a FOIA request to the City of Champaign seeking \"[alll electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3.\" Mr. Wade 300 South Second Street, Springfield, Winois 62706 « (217) 782-1090 * TTY: (217) 785 -2771 » Fax: (217) 782-7046 100 West Randolph Street, Chicago, Mlinois, 60601 * (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806 1001 East Main, Carbondale, illinois 62901 « (618) 529-6400 * TTY: (618) 529-6403 © Fax: (618) 529-6416 Ms. Trisha Crowley November 15, 2011 Page 2 also noted that \"this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts.\"! The City responded to Mr. Wade's request on July 22, 2011, advising that it was providing the public records held by itself or subsidiary public bodies of the City. The City stated that \"Private citizen's communications to the Council member's or the Mayor's privately owned electronic devices is not within the scope of the Freedom of Information Act.\"” The City sent Mr. Wade 24 pages of responsive documents, and noted that it had redacted personal email addresses and telephone numbers pursuant to section 7(1)(b) of FOIA. 5 ILCS 140/7(1)(b) (West 2010). The City also supplied Mr. Wade with a July 21, 2011, memorandum from Ms. Trisha Crowley, Deputy City Attorney, City of Champaign, to the Champaign City Council. In that memorandum, the City explained its basis for withholding records generated on private electronic devices. Specifically, the City stated that Quinn v. Stone, 211 Ill. App. 3d 809, 812 (1* Dist. 1991), supported its contention that emails and text messages generated on private computers are not public records subject to disclosure under FOIA. The City stated that “communications of the Mayor and City Council members on privately owned equipment to private parties are not public records of public bodies and will not be provided.\"? The City confirmed that communications which pass through and are available on the City's electronic equipment are in the City's possession and control, and would be provided if not exempt. Mr. Wade sought review of the City's partial denial on August 1, 2011. Mr. Wade's Request for Review suggests that \"[i]t is very possible and likely that city council members received communications that aid in the elected officials' formulation of opinions and that consequently affect their votes.\" Mr. Wade further suggested that \"[rjegardless of their form, communications pertaining to the transaction of public business— being received and used by individual members of an official bodyi n their role as a member of that public body during an ongoing public meeting — should be public records.\" 'Letter from Patrick Wade, Reporter, The News Gazette, to Marilyn Banks, City of Champaign (July 15, 2011). *Letter from Marilyn Banks, FOIO, City of Champaign, to Patrick Wade, The News Gazette (July 22, 2011). \"Report regarding the Patrick Wade FOIA Request of 7-15-2011 from Trisha Crowley, Deputy City Attomey, City of Champaign, to the Champaign City Council (July 21, 2011). ‘Letter from Patrick Wade, The News Gazette, to Sarah Pratt, Acting Public Access Counselor, Office of the Attorney General (August I, 2011). Ms. Trisha Crowley November 15, 2011 Page 3 This office initiated further inquiry of Mr. Wade's Request for Review on August 8, 2011.° The City responded to this office on August 15, 2011, affirming its position that the communications requested are not public records and furnishing us with a representative sample of those communications, including both emails and text messages sent from and received by the private email accounts and private cellular phones of two of the City's elected officials.° In that letter, the City informed us that it denied Mr. Wade records that related to \"arranging personal business meetings or family matters.\" The City asserted that emails and text messages that did relate to the transaction of public business are not \"public records\" because they are not in the possession of a public body. For purposes of this appeal, the City would concede that there were electronic communications which would be responsive to this request if they were required to be produced.\" (Emphasis added.) On September 13, 2011, this office forwarded a copy of the City's response letter to Mr. Wade.® Mr. Wade did not reply to the City's response. On September 27, 2011, pursuant to section 9.5(f) of FOIA, this office extended the time to issue a binding opinion by 30 business days. ANALYSIS This Request for Review concerns perhaps the most fundamental issue in interpreting the Freedom of Information Act —What is a public record? Specifically, are electronic communications pertaining to public business which are sent from or received by an ‘Letter from Matthew C. Rogina, Assistant Attorney General, Office of the Attorney General, to Trisha Crowley, City Attorney, City of Champaign (August 8, 2011). “It appears that an initial request was sent by Ms. Crowley to the city council members for text messages and emails potentially responsive to Mr. Wade's FOIA request. Two city council members promptly provided potentially responsive records. Upon review of those submissions, Ms. Crowley informed \"all the council members that they did not need to send records of that type to me.\" See Letter from Trisha Crowley, Deputy City Attorney, City of Champaign, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General (August 15, 2011). The records of the two council members were submitted to the Attorney General's office as a representative sample of the communications. ‘Letter from Trisha Crowley, Deputy City Attorney, City of Champaign, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General (August 15, 2011). ‘Letter from Matthew C. Rogina, Assistant Attomey General, Office of the Attorney General, to Patrick Wade, News Gazette (September 13, 2011). *Letter from Matthew C. Rogina, Assistant Attorney General, Office of the Attorney General, to Trisha Crowley, Deputy City Attorney, City of Champaign and Patrick Wade, The News Gazette (September 27, 2011). Ms. Trisha Crowley November 15, 2011 Page 4 electronic device'” owned by a member of a public body, rather than the public body itself, \"public records\" which are subject to disclosure under FOIA? The City's position is a simple one: because the City does not have possession of the communications, they are not \"public records” of the City and the City is under no obligation to furnish them under FOIA. As an initial matter, we strongly agree with the City that records that do not pertain to the business of the City, such as messages regarding “personal business meetings or family matters\" do not fall within the definition of \"public records\" and the City need not produce those records. The City concludes, however, that it has no re [...] rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The Ms. Trisha Crowley November 15, 2011 Page 6 provisions of this Act shall be construed in accordance with this principle. (Emphasis added.) The City's interpretation of which public records it may elect not to produce would frustrate the purpose of FOIA — to fully disclose information that affects the conduct of the government. Indeed, accepting the City's argument that it is not required to produce these records under FOIA simply because they are not in the City's actual physical custody or possession would allow any public body or public official to completely circumvent the requirements of FOIA by conducting their public business on personal equipment. The City's argument that, under Quinn y. Stone, the records generated on individual officers’ private electronic devices are not public records is undermined by the facts of that case. Citing Quinn, the City argues that the Mayor and council members are not public bodies under FOIA and that electronic communications received from private citizens on their private electronic devices are therefore not subject to FOIA. Applying the facts in Quinn to these circumstances leads to the opposite conclusion. In Quinn, the plaintiff filed suit under FOIA against an individual Chicago alderman to obtain records of the alderman's expenditures of monthly travel allowance funds. The appellate court rejected the appeal, stating: Plaintiff here failed to pursue her request for these records to the right person. Instead of suing defendant individually, she must pursue her remedy against the head of the public body, pursuant to the Act. The Act defines \"head of the public body\" as the \"president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body.\" Quinn, 211 Ill. App. 3d at 812. In essence, the court concluded that the records that the plaintiff was seeking were records of the city, not of the individual alderman; therefore, the records must be obtained from the city council. This decision is completely consistent with the conclusion that the records of the City officials in question pertaining to the transaction of public business are not records of the individual officials but records of the City. Finally, we note the City's argument that disclosure of private communications would have \"First Amendment implications well beyond this statute.\"'' The City's statement is \"Letter from Trisha Crowley, Deputy City Attorney, City of Champaign, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General (August 15, 2011). Ms. Trisha Crowley November 15, 2011 Page 7 conclusory and lacking in concrete examples as to how disclosure of the records of elected officials discussing matters that clearly relate to the transaction of public business would lead to such a result. The City's argument that political “opponents could FOIA an incumbent for every reference to public business in their private computer or phone for an indefinite period of time” is purely speculative and ignores the requirement that to be considered “public records,\" the communications must relate to the transaction of public business. A public body that receives a FOIA request for records generated on private equipment could clearly distinguish between communications that are either political in nature or simply mention public business in passing or in a non-substantive way, and those that relate to the transaction of public business. Only those communications on private equipment that pertain to public business are subject to disclosure under the requirements of FOIA, and any applicable FOIA exemptions can be asserted with respect to those records. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On July 15, 2011, Mr. Patrick Wade, staffreporter with The News Gazette, submitted a FOIA request to the City of Champaign seeking \"[a]ll electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3.\" Mr. Wade also noted that \"this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts.” 2) On July 22, 2011, the City responded to Mr. Wade's request and furnished him with public records held by itself or subsidiary public bodies of the City, which consisted of communications which passed through and were available on the City’s electronic equipment. The City denied the request in part, refusing to provide copies of communications that were generated on privately owned electronic devices. 3) The City, as a matter of law, denied Mr. Wade's FOIA request by not providing him with communications pertaining to public business that were generated on privately owned electronic devices. 4) On August 1, 2011, Mr. Wade submitted to the Public Access Counselor a Request for Review of the City's July 22, 2011, response. Mr. Wade's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010)). Therefore, the Attorney General may issue a binding opinion with respect to the disclosure of the records at issue. Ms. Trisha Crowley November 15, 2011 Page 8 5) The Attorney General properly extended the time frame to issue a binding opinion pursuant to section 9.5(f) of FOIA, until November 15, 2011. For the reasons addressed in detail above, it is the opinion of the Attorney General that the City has, in violation of the requirements of the Freedom of Information Act, improperly denied Mr. Wade's request for access to the public records of the City of Champaign specified in his request. Accordingly, the City is directed to take immediate and appropriate action to comply with this opinion by furnishing copies of the records to Mr. Wade. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, Mr. Patrick Wade, and The News Gazette as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL B y:: Michael J. Luke Counsel to the Attorney General ce: Via Electronic Mail Mr. Patrick Wade The News Gazette Records Manager 102 North Neil Street Champaign, Illinois 61820-4018 Pwade@news-gazette.com","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested text messages and emails sent by city officials during public meetings, including those sent from personal devices. The City of Champaign refused to provide records from private accounts, but the Attorney General ruled that any communication regarding public business is a public record regardless of whether it was created on a private phone or email account. This means government officials cannot hide public business by using personal devices.","card_headline":"City council members' electronic communications during meetings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-15916/","full_text":"This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). BACKGROUND On July 15, 2011, Mr. Patrick Wade, staff reporter for The News Gazette, submitted a FOIA request to the City of Champaign seeking \"[alll electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions sin\n\nge 2 also noted that \"this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts.\"! The City responded to Mr. Wade's request on July 22, 2011, advising that it was providing the public records held by itself or subsidiary public bodies of the City. The City stated that \"Private citizen's communications to the Council member's or the Mayor's privately owned electronic devices is not within the scope of the Freedom of Information Act.\"” The City sent Mr. Wade 24 pages of responsive documents, and noted that it had redacted personal email addresses and telephone numbers pursuant to section 7(1)(b) of FOIA. 5 ILCS 140/7(1)(b) (West 2010). The City also supplied Mr. Wade with a July 21, 2011, memorandum from Ms. Trisha Crowley, Deputy City Attorney, City of Champaign, to the Champaign City Council. In that memorandum, the City explained its basis for withholding records generated on private electronic devices. Specifically, the City stated that Quinn v. Stone, 211 Ill. App. 3d 809, 812 (1* Dist. 1991), supported its contention that emails and text messages generated on private computers are not public records subject to disclosure under FOIA. The City stated that “communications of the Mayor and City Council members on privately owned equipment to private parties are not public records of public bodies and will not be provided.\"? The City confirmed that communications which pass through and are available on the City's electronic equipment are in the City's possession and control, and would be provided if not exempt. Mr. Wade sought review of the City's partial denial on August 1, 2011. Mr. Wade's Request for Review suggests that \"[i]t is very possible and likely that city council members received communications that aid in the elected officials' formulation of opinions and that consequently affect their votes.\" Mr. Wade further suggested that \"[rjegardless of their form, communications pertaining to the transaction of public business— being received and used by individual members of an official bodyi n their role as a member of that public body during an ongoing public meeting — should be public records.\" 'Letter from Patrick Wade, Reporter, The News Gazette, to Marilyn Banks, City of Champaign (July 15, 2011). *Letter from Marilyn Banks, FOIO, City of Champaign, to Patrick Wade, The News Gazette (July 22, 2011). \"Report regarding the Patrick Wade FOIA Request of 7-15-2011 from Trisha Crowley, Deputy City Attomey, City of Champaign, to the Champaign City Council (July 21, 2011). ‘Letter from Patrick Wade, The News Gazette, to Sarah Pratt, Acting Public Access Counselor, Office of the Attorney General (August I, 2011). Ms. Trisha Crowley \n\nThis office initiated further inquiry of Mr. Wade's Request for Review on August 8, 2011.° The City responded to this office on August 15, 2011, affirming its position that the communications requested are not public records and furnishing us with a representative sample of those communications, including both emails and text messages sent from and received by the private email accounts and private cellular phones of two of the City's elected officials.° In that letter, the City informed us that it denied Mr. Wade records that related to \"arranging personal business meetings or family matters.\" The City asserted that emails and text messages that did relate to the transaction of public business are not \"public records\" because they are not in the possession of a public body. For purposes of this appeal, the City would concede that there were electronic communications which would be responsive to this request if they were required to be produced.\" (Emphasis added.) On September 13, 2011, this office forwarded a copy of the City's response letter to Mr. Wade.® Mr. Wade did not reply to the City's response. On September 27, 2011, pursuant to section 9.5(f) of FOIA, this office extended the time to issue a binding opinion by 30 business days. ANALYSIS This Request for Review concerns perhaps the most fundamental issue in interpreting the Freedom of Information Act —What is a public record? Specifically, are electronic communications pertaining to public business which are sent from or received by an ‘Letter from Matthew C. Rogina, Assistant Attorney General, Office of the Attorney General, to Trisha Crowley, City Attorney, City of Champaign (August 8, 2011). “It appears that an initial request was sent by Ms. Crowley to the city council members for text messages and emails potentially responsive to Mr. Wade's FOIA request. Two city council members promptly provided potentially responsive records. Upon review of those submissions, Ms. Crowley informed \"all the council members that they did not need to send records of that type to me.\" See Letter from Trisha Crowley, Deputy City Attorney, City of Champaign, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General (August 15, 2011). The records of the two council members were submitted to the Attorney General's office as a representative sample of the communications. ‘Letter from Trisha Crowley, Deputy City Attorney, City of Champaign, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General (August 15, 2011). ‘Letter from Matthew C. Rogina, Assistant Attomey General, Office of the Attorney General, to Patrick Wade, News Gazette (September 13, 2011). *Letter from Matthew C. Rogina, Assistant Attorney General, Office of the Attorney General, to Trisha Crowley, Deputy City Attorney, City of Champaign and Patrick Wade, The News Gazette (September 27, 2011). Ms. Trisha Crowley \n\nelectronic device'” owned by a member of a public body, rather than the public body itself, \"public records\" which are subject to disclosure under FOIA? The City's position is a simple one: because the City does not have possession of the communications, they are not \"public records” of the City and the City is under no obligation to furnish them under FOIA. As an initial matter, we strongly agree with the City that records that do not pertain to the business of the City, such as messages regarding “personal business meetings or family matters\" do not fall within the definition of \"public records\" and the City need not produce those records. The City concludes, however, that it has no re [...] rules, standards, and other aspects of government activity that affect the conduct of government and the lives of any or all of the people. The Ms. Trisha Crowley \n\nprovisions of this Act shall be construed in accordance with this principle. (Emphasis added.) The City's interpretation of which public records it may elect not to produce would frustrate the purpose of FOIA — to fully disclose information that affects the conduct of the government. Indeed, accepting the City's argument that it is not required to produce these records under FOIA simply because they are not in the City's actual physical custody or possession would allow any public body or public official to completely circumvent the requirements of FOIA by conducting their public business on personal equipment. The City's argument that, under Quinn y. Stone, the records generated on individual officers’ private electronic devices are not public records is undermined by the facts of that case. Citing Quinn, the City argues that the Mayor and council members are not public bodies under FOIA and that electronic communications received from private citizens on their private electronic devices are therefore not subject to FOIA. Applying the facts in Quinn to these circumstances leads to the opposite conclusion. In Quinn, the plaintiff filed suit under FOIA against an individual Chicago alderman to obtain records of the alderman's expenditures of monthly travel allowance funds. The appellate court rejected the appeal, stating: Plaintiff here failed to pursue her request for these records to the right person. Instead of suing defendant individually, she must pursue her remedy against the head of the public body, pursuant to the Act. The Act defines \"head of the public body\" as the \"president, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative authority for the public body.\" Quinn, 211 Ill. App. 3d at 812. In essence, the court concluded that the records that the plaintiff was seeking were records of the city, not of the individual alderman; therefore, the records must be obtained from the city council. This decision is completely consistent with the conclusion that the records of the City officials in question pertaining to the transaction of public business are not records of the individual officials but records of the City. Finally, we note the City's argument that disclosure of private communications would have \"First Amendment implications well beyond this statute.\"'' The City's statement is \"Letter from Trisha Crowley, Deputy City Attorney, City of Champaign, to Matthew C. Rogina, Assistant Public Access Counselor, Office of the Attorney General (August 15, 2011). Ms. Trisha Crowley \n\nconclusory and lacking in concrete examples as to how disclosure of the records of elected officials discussing matters that clearly relate to the transaction of public business would lead to such a result. The City's argument that political “opponents could FOIA an incumbent for every reference to public business in their private computer or phone for an indefinite period of time” is purely speculative and ignores the requirement that to be considered “public records,\" the communications must relate to the transaction of public business. A public body that receives a FOIA request for records generated on private equipment could clearly distinguish between communications that are either political in nature or simply mention public business in passing or in a non-substantive way, and those that relate to the transaction of public business. Only those communications on private equipment that pertain to public business are subject to disclosure under the requirements of FOIA, and any applicable FOIA exemptions can be asserted with respect to those records. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On July 15, 2011, Mr. Patrick Wade, staffreporter with The News Gazette, submitted a FOIA request to the City of Champaign seeking \"[a]ll electronic communications, including cellphone text messages, sent and received by members of the city council and the mayor during city council meetings and study sessions since (and including) May 3.\" Mr. Wade also noted that \"this request applies to both city-issued and personal cellphones, city-issued or personal email addresses and Twitter accounts.” 2) On July 22, 2011, the City responded to Mr. Wade's request and furnished him with public records held by itself or subsidiary public bodies of the City, which consisted of communications which passed through and were available on the City’s electronic equipment. The City denied the request in part, refusing to provide copies of communications that were generated on privately owned electronic devices. 3) The City, as a matter of law, denied Mr. Wade's FOIA request by not providing him with communications pertaining to public business that were generated on privately owned electronic devices. 4) On August 1, 2011, Mr. Wade submitted to the Public Access Counselor a Request for Review of the City's July 22, 2011, response. Mr. Wade's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010)). Therefore, the Attorney General may issue a binding opinion with respect to the disclosure of the records at issue. Ms. Trisha Crowley \n\n5) The Attorney General properly extended the time frame to issue a binding opinion pursuant to section 9.5(f) of FOIA, until November 15, 2011. For the reasons addressed in detail above, it is the opinion of the Attorney General that the City has, in violation of the requirements of the Freedom of Information Act, improperly denied Mr. Wade's request for access to the public records of the City of Champaign specified in his request. Accordingly, the City is directed to take immediate and appropriate action to comply with this opinion by furnishing copies of the records to Mr. Wade. This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision naming the Attorney General of Illinois, Mr. Patrick Wade, and The News Gazette as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL B y:: Michael J. Luke Counsel to the Attorney General ce: Via Electronic Mail Mr. Patrick Wade The News Gazette Records Manager 102 North Neil Street Champaign, Illinois 61820-4018 Pwade@news-gazette.com"}
{"id":225,"orig_master_id":19199,"dup_master_id":19427,"dup_sha256":"2dd8a23618af09c7e3d73af6b97f5b4309777d5e9007671ea99186b25e20bb16","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-11-15","case_number":"2011 PAC 17220","request_numbers":null,"title":"A Public Body's Offer to Allow the Inspection of Public Records in Response to a Request for Copies Constitutes a Violation of Section 3(b) of FOIA.","filename":"PUBLIC ACCESS OPINION No. 11-007  (Request for Review - 2011 PAC 17220).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS OPINION No. 11-007  (Request for Review - 2011 PAC 17220).pdf","word_count":1790,"summary":"Attorney General Lisa Madigan issued a binding PAC opinion finding that the Illinois Department of Natural Resources violated FOIA by offering only inspection of records rather than providing copies as requested.","plain_summary":"The requester sought paper and electronic copies of a mine reclamation plan, and a state agency responded only by offering to let him inspect the microfiche records at its office rather than providing copies. The Public Access Counselor held that FOIA requires a public body to provide copies of nonexempt records upon request and does not permit a public body to limit a requester to on-site inspection alone. The agency was directed to furnish copies of the requested records.","holding":"IDNR violated FOIA by offering only inspection of records rather than providing copies in response to a request for copies under Section 3(b) of FOIA.","legal_question":"Whether a public body satisfies its FOIA obligations by offering to allow inspection of records rather than providing copies when copies are specifically requested.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/3, 5 ILCS 140/6, 735 ILCS 5/3, 5 ILCS 140/11","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Department of Natural Resources","requesting_party":"Johnson and Ms. Yang","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"records access","subject_description":"The requester sought copies of a reclamation plan for a specific mine site.","ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-007.pdf","sha256":"7ba1e1319c1d3dd76d26a38b700bc3e3c3df67b2dca0ef8facaafa353f3e882b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["copies of records","inspection of records","FOIA request","public records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL December 21, 2011 Public Access Opinion No. 11-007 (Request for Review — 2011 PAC 17220) FREEDOM OF INFORMATION ACT: A Public Body's Offer to Allow the Inspection of Public Records in Response to a Request for Copies Constitutes a Violation of Section 3(b) of FOIA. Mr. Robert L. Johnson 8 Cypress Point Drive Collinsville, Illinois 62234 Ms. Virginia Yang Legal Counsel and FOIA Officer Illinois Department of Natural Resources One Natural Resources Way Springfield, INinois 62702-1271 Dear Mr. Johnson and Ms. Yang: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(8 (West 2010), as amended by Public Act 97-579, effective August 26, 2011). The issue for our review is whether the Illinois Department of Natural Resources (Department) violated FOIA by offering to allow the inspection of public records and by refusing to provide copies of those public records. For the reasons set out below, we conclude that by offering only the option to inspect the records at the Department's headquarters, the Department violated section 3 of FOIA. 5 ILCS 140/3 (West 2010). 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046 100 West Randoiph Street, Chicago, Iflinois, 60601 + (312) 814-3000 © TTY: (312) 814-3374 « Fax: (312) 814-3806 1001 East Main, Carbondale, Illinois 62901 * (618) 529-6400 « TTY: (618) 529-6403 « Fax: (618) 529-6416 Mr. Robert L. Johnson Ms. Virginia Yang December 21, 2011 Page 2 BACKGROUND On October 22, 2011, Mr. Robert L. Johnson submitted a FOIA request to the Department seeking both electronic and paper copies of the reclamation plan for \"RDA 5 of the Monterey Mine 1, now Shay Mine, in Carlinville, ID. \"! On November 3, 2011, the Department responded that Mr. Johnson's request was \"approved.\"? The Department's response indicated that the records in question were available on microfiche at the Department's Springfield office, and invited Mr. Johnson to schedule an appointment for an inspection. On November 7, 2011, Mr. Johnson sought the Public Access Counselor's review of the Department's response. Mr. Johnson's Request for Review asserted that he is entitled to obtain a printed copy of the reclamation plan and alleged that the Department's Tesponse is \"unreasonable andi s * * * effectively an improper denial of my FOIA request.”* On November 8, 2011, the Public Access Bureau notified the Department that it had received the Request for Review and asked the Department to clarify its response to the FOIA request: In particular, please indicate whether [the Department] is denying Mr. Johnson's request for copies of the records, or is willing to provide him with copies. If {the Department] is denying the request for copies, please identify the section of FOIA upon which that deniali s based and provide a detailed explanation[.]’ The Department responded as follows: This request was not denied. The request was approved with the option to view the records here at the Department's Springfield 'Letter from Robert L. Johnson to Freedom of Information Officer, Illinois Department of Natural Resources (October 22, 2011). *Letter from Virginia I. Yang, FOIA Officer, Hlinois Department of Natural Resources, to Robert Johnson (November 3, 2011). *E-mail from Robert L. Johnson to Steve Silverman (November 7, 2011). ‘Letter from Steve Silverman, Assistant Attorney General, Office of the Attorney General, to Virginia Yang, Illinois Department of Natural Resources (November 8, 2011). Mr. Robert L. Johnson Ms. Virginia Yang December 21, 2011 Page 3 office[;] the RDAS Reclamation Plan for the Shay Mine in Carlinville, Illinois is part of the original Permit No. 56 materials and is currently on microfiche.° On November 29, 2011, an Assistant Attorney General in the Public Access Bureau advised the Department's FOIA officer in a telephone conversation that this office had previously issued a binding opinion concluding that a public body that refused to comply with a request for copies of public records, and instead offered the requester an opportunity to inspect the records, violated the requirements of FOIA. See Ill. Att'y Gen. Pub. Acc. Op. No. 10-001, issued March 29, 2010. Subsequent to that conversation, we e-mailed the Department a copy of the binding opinion and also offered the Department an opportunity to supplement its previous response to our further inquiry. Although the Department acknowledged receipt of our e-mail, it did not submit a supplemental response to this office. ANALYSIS The issue to be determined is whether the Department complied with the requirements of FOIA when it unilaterally offered Mr. Johnson an opportunity to inspect the records he requested at the Department's office in Springfield, but denied his request to obtain paper or electronic copies of those records.° Section 3 of FOIA (5 ILCS 140/3 (West 2010)) provides, in pertinent part: (a) Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act. Notwithstanding any other law, a public body may not grant to any person or entity, whether by contract, license, or otherwise, the exclusive right to access and disseminate any public record as defined in this Act. (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be “Letter from Virginia I. Yang, Legal Counsel and FOIA Officer, Illinois Department of Natural Resources, to Steve Silverman, Assistant Public Access Counselor, Office of the Attorney General (November 15, 2011). “It is our understanding that the records in question are not maintained in an electronic format. Therefore, the Department would not be obligated to convert the microfiche records to an electronic format to satisfy Mr. Johnson's request. See 5 ILCS 140/6{a) (West 2010). In the case of microfiche records, however, paper copies can be printed on standard office machines without additional conversion. Mr. Robert L. Johnson Ms. Virginia Yang December 21, 2011 Page 4 disclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) The cardinal rule in interpreting statutes is to give effect to the intention of the General Assembly, and when the language of a statute is clear and unambiguous, it will be given effect without resort to other tools of construction. Gem Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill. 2d 470, 475 (1998). Other sources are used to construe legislative intent only if the statutory language may be reasonably interpreted in more than one way. People ex rel. Dept. of Prof'l Regulation v. Manos, 202 Ill. 2d 563, 570-71 (2002). In Ill. Att'y Gen. Pub. Acc. Op. No. 10-001, the public body asserted that it was only obligated to make documents available for inspection and photocopying, and claimed that FOIA did not require the public body to make copies for the requester. The opinion concluded that: The language of section 3(b) is clear and unambiguous: it is the duty ofa public body, when requested and upon payment of applicable fees, if any, to provide the requester with a copy of any record that is not exempt from disclosure under FOIA. Section 3(b) does not provide a public body with the option to decline to provide copies when copies are requested. Although a public body may offer the requester an opportunity to inspect and make copies if he or she elects to do so, it may not properly refuse to provide copies if requested to do so.! The Department's contention that it complied with Mr. Johnson's FOIA request by offering him an opportunity to inspect the records, while refusing to provide him with copies of those records, is likewise unavailing. Section 3(b) of FOIA simply does not afford a public body the unilateral option to provide a requester only an opportunity to inspect public records, when the requester has expressly sought to obtain copies of those records. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On October 22, 2011, Mr. Robert L. Johnson submitted a FOIA request to the Illinois Department of Natural Resources for both electronic and paper copies of the reclamation plan for \"RDA 5 of the Monterey Mine 1, now Shay Mine, in Carlinville, TL.\" \"II. Att'y Gen. Pub. Acc. Op. No. 10-001, issued March 29, 2010, at 3. Mr. Robert L. Johnson Ms. Virginia Yang December 21, 2011 Page 5 2) On November 3, 2011, the Department responded by inviting Mr. Johnson to schedule an appointment to inspect the records at the Department's Springfield office. The Department did not provide electronic or paper copies of any records that Mr. Johnson requested. 3) On November 7, 2011, Mr. Johnson submitted to the Public Access Counselor a Request for Review alleging that the Department improperly denied his FOIA request for copies of the records. Mr. Johnson's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOTA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). Therefore, the Attorney General may issue a binding opinion with respect to Mr. Johnson's request for copies of the records at issue. 4) On November 15, 2011, the Department responded to the Request for Review by asserting that it did not deny Mr. Johnson's request for copies of public records because the Department offered him an opportunity to inspect the records. 5) The Department, as a matter of law, violated section 3(b) of FOIA by refusing to provide copies of the records in response to Mr. Johnson's request for copies. For the reasons addressed in detail above, it is the opinion of the Attorney General that the Department has, in violation of the requirements of the Freedom of Information Act, improperly denied Mr. Johnson's request for copies of the public records specified in his request. Accordingly, the Department is directed to take immediate and appropriate action to comply with this opinion by furnishing copies of the records to Mr. Johnson. This opinion shall be considered a final decision of an administrative agency for purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Robert L. Johnson as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A citizen requested copies of specific public records from the Illinois Department of Natural Resources, but the agency told him he could only come to their office to look at them in person. The Attorney General ruled that when a person asks for copies of public records, the government must provide those copies and cannot unilaterally force the requester to inspect them on-site instead. The opinion does not establish a general rule that a public body must honor any specific format requested; it only holds that a public body may not refuse to provide copies when copies are requested.","card_headline":"A reclamation plan for a mine site","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-17220/","full_text":"This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(8 (West 2010), as amended by Public Act 97-579, effective August 26, 2011). The issue for our review is whether the Illinois Department of Natural Resources (Department) violated FOIA by offering to allow the inspection of public records and by refusing to provide copies of those public records. For the reasons set out below, we conclude that by offering only the option to inspect the records at the Department's headquarters, the Department violated section 3\n\n \n\nBACKGROUND On October 22, 2011, Mr. Robert L. Johnson submitted a FOIA request to the Department seeking both electronic and paper copies of the reclamation plan for \"RDA 5 of the Monterey Mine 1, now Shay Mine, in Carlinville, ID. \"! On November 3, 2011, the Department responded that Mr. Johnson's request was \"approved.\"? The Department's response indicated that the records in question were available on microfiche at the Department's Springfield office, and invited Mr. Johnson to schedule an appointment for an inspection. On November 7, 2011, Mr. Johnson sought the Public Access Counselor's review of the Department's response. Mr. Johnson's Request for Review asserted that he is entitled to obtain a printed copy of the reclamation plan and alleged that the Department's Tesponse is \"unreasonable andi s * * * effectively an improper denial of my FOIA request.”* On November 8, 2011, the Public Access Bureau notified the Department that it had received the Request for Review and asked the Department to clarify its response to the FOIA request: In particular, please indicate whether [the Department] is denying Mr. Johnson's request for copies of the records, or is willing to provide him with copies. If {the Department] is denying the request for copies, please identify the section of FOIA upon which that deniali s based and provide a detailed explanation[.]’ The Department responded as follows: This request was not denied. The request was approved with the option to view the records here at the Department's Springfield 'Letter from Robert L. Johnson to Freedom of Information Officer, Illinois Department of Natural Resources (October 22, 2011). *Letter from Virginia I. Yang, FOIA Officer, Hlinois Department of Natural Resources, to Robert Johnson (November 3, 2011). *E-mail from Robert L. Johnson to Steve Silverman (November 7, 2011). ‘Letter from Steve Silverman, Assistant Attorney General, Office of the Attorney General, to Virginia Yang, Illinois Department of Natural Resources (November 8, 2011). Mr. Robert L. Johnson Ms. Virginia Yang \n\noffice[;] the RDAS Reclamation Plan for the Shay Mine in Carlinville, Illinois is part of the original Permit No. 56 materials and is currently on microfiche.° On November 29, 2011, an Assistant Attorney General in the Public Access Bureau advised the Department's FOIA officer in a telephone conversation that this office had previously issued a binding opinion concluding that a public body that refused to comply with a request for copies of public records, and instead offered the requester an opportunity to inspect the records, violated the requirements of FOIA. See Ill. Att'y Gen. Pub. Acc. Op. No. 10-001, issued March 29, 2010. Subsequent to that conversation, we e-mailed the Department a copy of the binding opinion and also offered the Department an opportunity to supplement its previous response to our further inquiry. Although the Department acknowledged receipt of our e-mail, it did not submit a supplemental response to this office. ANALYSIS The issue to be determined is whether the Department complied with the requirements of FOIA when it unilaterally offered Mr. Johnson an opportunity to inspect the records he requested at the Department's office in Springfield, but denied his request to obtain paper or electronic copies of those records.° Section 3 of FOIA (5 ILCS 140/3 (West 2010)) provides, in pertinent part: (a) Each public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Section 7 of this Act. Notwithstanding any other law, a public body may not grant to any person or entity, whether by contract, license, or otherwise, the exclusive right to access and disseminate any public record as defined in this Act. (b) Subject to the fee provisions of Section 6 of this Act, each public body shall promptly provide, to any person who submits a request, a copy of any public record required to be “Letter from Virginia I. Yang, Legal Counsel and FOIA Officer, Illinois Department of Natural Resources, to Steve Silverman, Assistant Public Access Counselor, Office of the Attorney General (November 15, 2011). “It is our understanding that the records in question are not maintained in an electronic format. Therefore, the Department would not be obligated to convert the microfiche records to an electronic format to satisfy Mr. Johnson's request. See 5 ILCS 140/6{a) (West 2010). In the case of microfiche records, however, paper copies can be printed on standard office machines without additional conversion. Mr. Robert L. Johnson Ms. Virginia Yang \n\ndisclosed by subsection (a) of this Section and shall certify such copy if so requested. (Emphasis added.) The cardinal rule in interpreting statutes is to give effect to the intention of the General Assembly, and when the language of a statute is clear and unambiguous, it will be given effect without resort to other tools of construction. Gem Electronics of Monmouth, Inc. v. Department of Revenue, 183 Ill. 2d 470, 475 (1998). Other sources are used to construe legislative intent only if the statutory language may be reasonably interpreted in more than one way. People ex rel. Dept. of Prof'l Regulation v. Manos, 202 Ill. 2d 563, 570-71 (2002). In Ill. Att'y Gen. Pub. Acc. Op. No. 10-001, the public body asserted that it was only obligated to make documents available for inspection and photocopying, and claimed that FOIA did not require the public body to make copies for the requester. The opinion concluded that: The language of section 3(b) is clear and unambiguous: it is the duty ofa public body, when requested and upon payment of applicable fees, if any, to provide the requester with a copy of any record that is not exempt from disclosure under FOIA. Section 3(b) does not provide a public body with the option to decline to provide copies when copies are requested. Although a public body may offer the requester an opportunity to inspect and make copies if he or she elects to do so, it may not properly refuse to provide copies if requested to do so.! The Department's contention that it complied with Mr. Johnson's FOIA request by offering him an opportunity to inspect the records, while refusing to provide him with copies of those records, is likewise unavailing. Section 3(b) of FOIA simply does not afford a public body the unilateral option to provide a requester only an opportunity to inspect public records, when the requester has expressly sought to obtain copies of those records. FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On October 22, 2011, Mr. Robert L. Johnson submitted a FOIA request to the Illinois Department of Natural Resources for both electronic and paper copies of the reclamation plan for \"RDA 5 of the Monterey Mine 1, now Shay Mine, in Carlinville, TL.\" \"II. Att'y Gen. Pub. Acc. Op. No. 10-001, issued March 29, 2010, at 3. Mr. Robert L. Johnson Ms. Virginia Yang \n\n2) On November 3, 2011, the Department responded by inviting Mr. Johnson to schedule an appointment to inspect the records at the Department's Springfield office. The Department did not provide electronic or paper copies of any records that Mr. Johnson requested. 3) On November 7, 2011, Mr. Johnson submitted to the Public Access Counselor a Request for Review alleging that the Department improperly denied his FOIA request for copies of the records. Mr. Johnson's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOTA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). Therefore, the Attorney General may issue a binding opinion with respect to Mr. Johnson's request for copies of the records at issue. 4) On November 15, 2011, the Department responded to the Request for Review by asserting that it did not deny Mr. Johnson's request for copies of public records because the Department offered him an opportunity to inspect the records. 5) The Department, as a matter of law, violated section 3(b) of FOIA by refusing to provide copies of the records in response to Mr. Johnson's request for copies. For the reasons addressed in detail above, it is the opinion of the Attorney General that the Department has, in violation of the requirements of the Freedom of Information Act, improperly denied Mr. Johnson's request for copies of the public records specified in his request. Accordingly, the Department is directed to take immediate and appropriate action to comply with this opinion by furnishing copies of the records to Mr. Johnson. This opinion shall be considered a final decision of an administrative agency for purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seg. (West 2010). An aggrieved party may obtain judicial review of the decision by filing a complaint for administrative review in the Circuit Court of Cook or Sangamon County within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Robert L. Johnson as defendants. See 5 ILCS 140/11.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General"}
{"id":226,"orig_master_id":19200,"dup_master_id":19429,"dup_sha256":"c7e28ce1f5efa16e7073717cd1b2f2591a394eb7f753339393ed07650947e7ed","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2012-01-26","case_number":"2011 PAC 17090","request_numbers":null,"title":"Requests for Records May Properly Be Submitted to a Public Body via Personal Delivery","filename":"PUBLIC ACCESS REVIEW 12-004  (Request for Review - 2011 PAC 17090).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS REVIEW 12-004  (Request for Review - 2011 PAC 17090).pdf","word_count":1674,"summary":"Vernon Ford tried to personally hand-deliver a FOIA request to the Village of Smithfield's Village President at a public Village Board meeting. The Village refused to accept it, citing an unwritten policy that FOIA requests could only be submitted by mail because the Village had no office hours or full-time staff. The Public Access Bureau held that Section 3(c) of FOIA expressly permits personal delivery as a valid submission method and a public body cannot categorically refuse to accept hand-delivered requests, particularly where, as here, the Village had no reliable alternative channel (no office hours, infrequent mail pickup). The Village was found to have violated FOIA and was directed to fulfill the original request.","plain_summary":"The requester attempted to hand-deliver a FOIA request to a village president at a public board meeting, but the president refused to accept it, citing the village's mail-only submission policy. The Public Access Counselor held that FOIA expressly allows requests to be submitted by personal delivery and that the village could not adopt a blanket policy refusing hand-delivered requests, particularly given that the village kept no regular office hours or mail pickup schedule. The village was directed to furnish the records sought and to discontinue its mail-only policy.","holding":"Under 5 ILCS 140/3(c), a public body may not adopt a blanket policy refusing to accept FOIA requests submitted via personal delivery, and delivery to a public official at a public meeting constitutes a proper method of submission where the body lacks regular office hours or timely mail pickup.","legal_question":"Whether a public body violates FOIA by refusing to accept a written FOIA request submitted via personal delivery rather than mail.","disposition":null,"primary_statute":"5 ILCS 140/3(c), 5 ILCS 140/3(d)","foia_related":0,"foia_or_oma":"FOIA+OMA","foia_exemption":[],"public_body":"Village of Smithfield","requesting_party":"Mr. Vernon Ford","pac_outcome":"VIOLATION","pac_law_type":"FOIA","subject_category":"Submitting requests","subject_description":"The request concerned a citizen's attempt to hand-deliver a FOIA request to a village official at a public board meeting after the village adopted a mail-only submission policy.","ocr_status":"ok","ocr_quality":90,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-004.pdf","sha256":"cc8c5b608f798791caa64ed56162fd5589dc705ac627a7c4d9b6925a2943f524","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["submitting requests","personal delivery","small public bodies","FOIA response process"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL January 26, 2012 PUBLIC ACCESS OPINION No. 12-004 (Request for Review 2011 PAC 17090) FREEDOM OF INFORMATION ACT: 7 Requests for Records May Properly Be Submitted to a Public Body via Personal Delivery ) Mr. Vernon Ford 1004 E. Walnut Canton, Illinois 61520 Mr. Tim Orwig Freedom of Information Officer Village of Smithfield PO Box 25 Smithfield, [Hinois 61477 Dear Mr. Ford and Mr. Orwig: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOTA) (5 ILCS 140/9.5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). For the reasons set forth below, we conclude that the Village of Smithfield (Village) has violated FOIA by refusing to accept a FOIA request personally delivered by Mr. Vernon Ford to the Village President at a Village Board meeting on October 12, 2011. BACKGROUND At a regular meeting of the Village Board held on October 12, 2011, Mr. Ford approached Village President Bill Mustread and attempted to hand him a FOIA request for public records.’ President Mustread initially refused to take possession of the request. He later took the request from Mr. Ford and set it aside, orally indicating to Mr. Ford that all FOIA requests to the Village must be. submitted by mail, therefore his request was denied. 'E-mail from Vernon Fortdo Public Access Counselor (October 12, 2011). 500 South Second Street, Springfield, Ulinois 62706 + (217) 782-1090 + TTY: (217) 785 -2771 * Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 * Fax: (312) 814-3806 1001 East Main, Carbondale, {linois 62901 * (618) 529-6400 « TTY: (618) 529-6403 + Fax: (618) 529-6416 Mr. Vernon Ford | Mr. Tim Orwig January 26, 2012 Page 2 On October 13, 2011, the Public Access Bureau received Mr. Ford's request for review challenging the Village's refusal to accept his FOIA request via personal delivery. This office forwarded a copy of Mr. Ford's request for review to the Village on October 19, 2011, and asked for,a n explanation of its basis for refusing to accept Mr. Ford's FOIA request by hand delivery.” On November 16, 2011, th¢e Village responded to the Public Access Bureau's request for an explanation,i n part, as follows: The Village of Smithfield has made a determination that we would accept FOIA requests by mail only, and have posted this on our information page in three places in the Village. As we have no office hours or full-time employees, we cannot accept FOIA or OMA Requests at our office.° (Emphasisi n original.) The Village further asserted that it had changed its policy from accepting hand delivered requests to accepting mailed requests only because Mr. and Mrs. Ford had hand-delivered FOIA requests to Board members in person on private property and on public streets, and the Village viewed this as harassment. ‘Thus, the Village agrees that it refused to accept Mr. Ford's FOIA request via personal delivery ata Board meeting, and acknowledges that the Village has no office hours or full-time employees. We forwarded a copy of the Village's response letter to Mr. Ford on November 29, 2011.* On December 4, 2011, Mr. Ford responded to the Village's answer explaining that his wife had entered private property to hand deliver a FOIA request to Tim Orwig on only one occasion, and would not do so again.” Mr. Ford also acknowledged that Mrs. Ford had, on one occasion, hand-delivered a FOIA request to: Village President Mustread while Mr. Mustread was on a Village street. Mr. Ford asserted that hand delivery of FOIA requests to Board members is necessary because the Village has no office hours, nor is the mail picked up in a timely manner. According to Mr. Ford, the Board has stated in response to questioning at meetings that mail is picked up from the post office either close to the date of a Village Board meeting, which could “Letter from Amanda M. Lundeen, Assistant Attorney General, Public Access Bureau, to Tim Orwig, Freedom of Information Officer, Village of Smithfield (October 19, 2011). *Letter from Tim Orwig, Open Meetings Act Officer, Village of Smithfield, to Amanda Lundeen, Assistant Attorney General, Public Access Bureau (November 16, 2011). ‘ ‘Letter from Amanda M. Lundeen; Assistant Attorney General, Public Access Bureau, to Vernon L. Ford and Tim Orwig (November 29, 2011). °E-mail from Vernon L. Ford to Amanda Lundeen, Office of the PAC (December 4, 2011) Mr. Vernon Ford Mr. Tim Orwig January 26, 2012 | Page 3 - mean every two or three weeks, or every one to two weeks. The Village did not dispute this assertion. ANALYSIS. In order to determine whether the Village violated the requirements of FOIA by refusing to accept personal delivery of Mr. Ford's FOIA request, we need only examine the plain language of the Act. In interpreting a statute, the \"primary objective is to ascertain and give effect to legislative intent, the surest and most reliable indicator of which is the statutory language itself, given its plain and ordinary meaning.” People v. Perry, 224 Ill.2d 312, 323, (2007). Section 3(c) of FOIA provides that FOIA requests for inspection or copies of public records \"shall be made in writing and directed to the public body” and that \"[w]ritten requests may be submitted to a public body via persunal delivery, mail, telefax, or other means available to the public body.\" (Emphasis added.) 5 ILCS 140/3(c) (West 2010). Once a written request for-recordsi s received by a public body, FOIA requires that \"[a]ll requests for inspection and copying received by a public body shall immediately be forwarded to its Freedom of Information officer or designee\" (5 ILCS 140/3(c) (West 2010)) and that \"[e]ach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request[.]\" (5 ILCS 140/3(d) (West 2010)). The language of section 3(c) of FOIA expressly provides that a FOIA request may be submitted to a public body via personal delivery. The Village may not adopt a policy of refusing to accept hand delivered FOIA requests because such a policyi s contrary to the plain language of the statute. Further, in this instance the evidence indicates that the Village does not maintain regular office hours or retrieve its mail on a regular basis. Consequently, hand delivery of a FOIA request.to the Village President at a public meeting of the Board was areasonable alternative under these circumstances. ) _ This conclusion should not, however, be interpreted to mean that personal delivery at any time or place is acceptable. For example, we are not suggesting that a village officer would be obligated to accept delivery of a FOIA request during a chance encounter on the sidewalkor, at his or her private residence or place of business. Personal delivery upon the Village President at a meeting of the Village Board, however, is a significantly different scenario. We conclude, therefore, that the Village violated section 3(c)} of FOIA when Mr. Ford personally tendered his October 12, 2011, FOIA request to Mr. Mustread at the Village Board meeting, and Mr. Mustread refusetdo accept the request for forwarding to the Village FOIA | officer for response. Mr. Vernon Ford Mr. Tim Orwig January 26, 2012 Page 4 FINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On October 12, 2011, the Village of Smithfield Board of Trustees held a regular meeting. 2) At the October 12, 2011, meeting Mr. Vernon Ford attempted to personally deliver a FOIA request to Village President Bill Mustread. 3) President Mustread informed Mr. Ford that his FOIA request would not be accepted based upon the Village's policy that all FOIA requests must be submitted by mail. 4) On October 13, 2011, Mr. Ford submitted to the Public Access Counselor a Request for Review of the Village's denial of his October 12, 2011, FOIA request. Mr. Ford's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). 5) The Attorney General properly extended the time to issue a binding opinion by 30 business days pursuant to section 9.5(f) (5 ILCS 140/ 9. 5(f) (West 2010), as amended by Public Act 97- 579, effective August 26, 2011), until January 26, 2012. Therefore, the Attorney General may issue a binding opinion with respect to the Village's denial of Mr. Ford's October 12, 2011, FOIA request. ) _ 6) The Village, as a matter of law, violated section 3(c) of FOIA by refusing to accept and respond to Mr. Ford's FOIA request which was submitted by personal delivery at a public meeting of the Village Board. Therefore, it is the opinion of the Attorney General that the Village has improperly denied Mr. Ford's October 12, 2011, FOIA request. Accordingly, the Village is directed to take immediate and appropriate action to comply with this opinion by furnishing the records sought by Mr. Ford's October 12, 2011, FOIA request. We advise the Village that its practice of requiring FOIA requests to be submitted only by mail violates section 3(co)f FOIA and must be discontinued. ) This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the deciston by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County | Mr. Vernon Ford Mr. Tim Orwig January 26, 2012 - Page 5 within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Vernon Ford as defendants. See 5 ILCS 120/7.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: (helt Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"This binding opinion addresses whether a public body may lawfully refuse to accept a FOIA request delivered in person, under 5 ILCS 140/3(c). The Attorney General held that the Village of Smithfield violated FOIA when its President refused to accept a FOIA request personally handed to him at a public Village Board meeting based on a mail-only policy. The opinion reasons that section 3(c) expressly permits submission of written FOIA requests via personal delivery, and a public body cannot categorically bar hand delivery, particularly where, as here, the body has no regular office hours or timely mail retrieval, making personal delivery to an official at a public meeting a reasonable means of submission. The Attorney General clarified this does not mean personal delivery is acceptable at any time or place (e.g., a chance sidewalk encounter or a private residence), but delivery to the Village President during a public Board meeting was sufficient. The Village, a municipality, was found to have improperly denied the request and was directed to comply.","card_headline":"A village's mail-only FOIA submission policy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-17090/","full_text":"This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOTA) (5 ILCS 140/9.5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). For the reasons set forth below, we conclude that the Village of Smithfield (Village) has violated FOIA by refusing to accept a FOIA request personally delivered by Mr. Vernon Ford to the Village President at a Village Board meeting on October 12, 2011. BACKGROUND At a regular meeting of the Village Board held on October 12, 2011, Mr. Ford approached Village President Bill Mustread and attempted to hand him a FOIA request for public records.’ President Mustread initially refused to take possession of the request. He later took the request from Mr. Ford and set it aside, orally indicating to Mr. Ford that all FOIA requests to the Village must be. submitted by mail, therefore his request was denied. 'E-mail from Vernon Fortdo Public A\n\nOn October 13, 2011, the Public Access Bureau received Mr. Ford's request for review challenging the Village's refusal to accept his FOIA request via personal delivery. This office forwarded a copy of Mr. Ford's request for review to the Village on October 19, 2011, and asked for,a n explanation of its basis for refusing to accept Mr. Ford's FOIA request by hand delivery.” On November 16, 2011, th¢e Village responded to the Public Access Bureau's request for an explanation,i n part, as follows: The Village of Smithfield has made a determination that we would accept FOIA requests by mail only, and have posted this on our information page in three places in the Village. As we have no office hours or full-time employees, we cannot accept FOIA or OMA Requests at our office.° (Emphasisi n original.) The Village further asserted that it had changed its policy from accepting hand delivered requests to accepting mailed requests only because Mr. and Mrs. Ford had hand-delivered FOIA requests to Board members in person on private property and on public streets, and the Village viewed this as harassment. ‘Thus, the Village agrees that it refused to accept Mr. Ford's FOIA request via personal delivery ata Board meeting, and acknowledges that the Village has no office hours or full-time employees. We forwarded a copy of the Village's response letter to Mr. Ford on November 29, 2011.* On December 4, 2011, Mr. Ford responded to the Village's answer explaining that his wife had entered private property to hand deliver a FOIA request to Tim Orwig on only one occasion, and would not do so again.” Mr. Ford also acknowledged that Mrs. Ford had, on one occasion, hand-delivered a FOIA request to: Village President Mustread while Mr. Mustread was on a Village street. Mr. Ford asserted that hand delivery of FOIA requests to Board members is necessary because the Village has no office hours, nor is the mail picked up in a timely manner. According to Mr. Ford, the Board has stated in response to questioning at meetings that mail is picked up from the post office either close to the date of a Village Board meeting, which could “Letter from Amanda M. Lundeen, Assistant Attorney General, Public Access Bureau, to Tim Orwig, Freedom of Information Officer, Village of Smithfield (October 19, 2011). *Letter from Tim Orwig, Open Meetings Act Officer, Village of Smithfield, to Amanda Lundeen, Assistant Attorney General, Public Access Bureau (November 16, 2011). ‘ ‘Letter from Amanda M. Lundeen; Assistant Attorney General, Public Access Bureau, to Vernon L. Ford and Tim Orwig (November 29, 2011). °E-mail from Vernon L. Ford to Amanda Lundeen, Office of the PAC (December 4, 2011) Mr. Vernon Ford Mr. Tim Orwig January 26, 2012 | Page 3 - mean every two or three weeks, or every one to two weeks. The Village did not dispute this assertion. ANALYSIS. In order to determine whether the Village violated the requirements of FOIA by refusing to accept personal delivery of Mr. Ford's FOIA request, we need only examine the plain language of the Act. In interpreting a statute, the \"primary objective is to ascertain and give effect to legislative intent, the surest and most reliable indicator of which is the statutory language itself, given its plain and ordinary meaning.” People v. Perry, 224 Ill.2d 312, 323, (2007). Section 3(c) of FOIA provides that FOIA requests for inspection or copies of public records \"shall be made in writing and directed to the public body” and that \"[w]ritten requests may be submitted to a public body via persunal delivery, mail, telefax, or other means available to the public body.\" (Emphasis added.) 5 ILCS 140/3(c) (West 2010). Once a written request for-recordsi s received by a public body, FOIA requires that \"[a]ll requests for inspection and copying received by a public body shall immediately be forwarded to its Freedom of Information officer or designee\" (5 ILCS 140/3(c) (West 2010)) and that \"[e]ach public body shall, promptly, either comply with or deny a request for public records within 5 business days after its receipt of the request[.]\" (5 ILCS 140/3(d) (West 2010)). The language of section 3(c) of FOIA expressly provides that a FOIA request may be submitted to a public body via personal delivery. The Village may not adopt a policy of refusing to accept hand delivered FOIA requests because such a policyi s contrary to the plain language of the statute. Further, in this instance the evidence indicates that the Village does not maintain regular office hours or retrieve its mail on a regular basis. Consequently, hand delivery of a FOIA request.to the Village President at a public meeting of the Board was areasonable alternative under these circumstances.) _ This conclusion should not, however, be interpreted to mean that personal delivery at any time or place is acceptable. For example, we are not suggesting that a village officer would be obligated to accept delivery of a FOIA request during a chance encounter on the sidewalkor, at his or her private residence or place of business. Personal delivery upon the Village President at a meeting of the Village Board, however, is a significantly different scenario. We conclude, therefore, that the Village violated section 3(c)} of FOIA when Mr. Ford personally tendered his October 12, 2011, FOIA request to Mr. Mustread at the Village Board meeting, and Mr. Mustread refusetdo accept the request for forwarding to the Village FOIA | officer for response. Mr. Vernon Ford Mr. Tim Orwig \n\nFINDINGS AND CONCLUSIONS After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds that: 1) On October 12, 2011, the Village of Smithfield Board of Trustees held a regular meeting. 2) At the October 12, 2011, meeting Mr. Vernon Ford attempted to personally deliver a FOIA request to Village President Bill Mustread. 3) President Mustread informed Mr. Ford that his FOIA request would not be accepted based upon the Village's policy that all FOIA requests must be submitted by mail. 4) On October 13, 2011, Mr. Ford submitted to the Public Access Counselor a Request for Review of the Village's denial of his October 12, 2011, FOIA request. Mr. Ford's Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). 5) The Attorney General properly extended the time to issue a binding opinion by 30 business days pursuant to section 9.5(f) (5 ILCS 140/ 9. 5(f) (West 2010), as amended by Public Act 97- 579, effective August 26, 2011), until January 26, 2012. Therefore, the Attorney General may issue a binding opinion with respect to the Village's denial of Mr. Ford's October 12, 2011, FOIA request.) _ 6) The Village, as a matter of law, violated section 3(c) of FOIA by refusing to accept and respond to Mr. Ford's FOIA request which was submitted by personal delivery at a public meeting of the Village Board. Therefore, it is the opinion of the Attorney General that the Village has improperly denied Mr. Ford's October 12, 2011, FOIA request. Accordingly, the Village is directed to take immediate and appropriate action to comply with this opinion by furnishing the records sought by Mr. Ford's October 12, 2011, FOIA request. We advise the Village that its practice of requiring FOIA requests to be submitted only by mail violates section 3(co)f FOIA and must be discontinued.) This opinion shall be considered a final decision of an administrative agency for the purpose of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 et seq. (West 2010). An aggrieved party may obtain judicial review of the deciston by filing a complaint for administrative review in the Circuit Court of Cook County or Sangamon County | Mr. Vernon Ford Mr. Tim Orwig January 26, 2012 - Page 5 within 35 days of the date of this decision, naming the Attorney General of Illinois and Mr. Vernon Ford as defendants. See 5 ILCS 120/7.5 (West 2010). Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: (helt Michael J. Luke Counsel to the Attorney General"}
{"id":227,"orig_master_id":19426,"dup_master_id":19201,"dup_sha256":"f034f94987da556f9895b6297d8124f767d04f4546eabb5f349c1b46e4ac4dfa","source":"PAC","sub_agency":"opinions","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-04-01","case_number":"2011 PAC 12170","request_numbers":null,"title":"University of Illinois must disclose travel and search-firm fee records","filename":"PUBLIC ACCESS OPINION No. 11-003 (Request for Review - 2011 PAC 12170).pdf","rel_path":"PAC\\opinions\\PUBLIC ACCESS OPINION No. 11-003 (Request for Review - 2011 PAC 12170).pdf","word_count":8530,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act (FOIA) request submitted by The News-Gazette to the University of Illinois. It addresses the criteria for determining whether a FOIA request is unduly burdensome.","plain_summary":"The requesters, several news organizations, sought records concerning a university's presidential search, including departure airports, travel-agency names, and a search firm's fee, which the university withheld as personal information or proprietary commercial information. The Public Access Counselor held that the university had shown only that unsuccessful applicants' identities and current employers were exempt, while the airport, flight, and travel-agency details related to the expenditure of public funds and the search firm's fee was not shown to cause it substantial competitive harm. The university was directed to disclose the non-exempt travel and search-firm-fee information, but the identities and current employers of unsuccessful applicants remained exempt.","holding":"A subsequent FOIA request cannot be deemed 'unduly burdensome' unless the public body has either previously disclosed the requested records or properly denied the request.","legal_question":"What constitutes an 'unduly burdensome' FOIA request?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":0,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois","requesting_party":"The News-Gazette","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The University of Illinois denied a FOIA request for presidential search committee records by labeling it an unduly burdensome repeat request.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2011-Binding-PAC-Opinions/11-003.pdf","sha256":"54e785bbe49814bd68cfc9d500dc6df5ebbe38dd274c6946f8c0b7e38227d2a4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["unduly burdensome","repeat request","FOIA","University of Illinois"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nLisa Madigan April 1, 2011\nATTORNEY GENERAL\nMr. Thomas Hardy\nExecutive Director, University Relations\nUniversity of Illinois\n[street address redacted for site publication -- see original PDF]\nVia e-mail:\nhardyt@uillinois.edu\nPUBLIC ACCESS OPINION No. 11-003\n(Request for Review— 2011 PAC 12170)\nFREEDOM OF INFORMATION:\nUnduly Burdensome Requests: A subsequent FOIA\nrequest cannot be deemed “unduly burdensome”\nunless the public body has either previously disclosed\nthe requested records or properly denied the request.\nDear Mr. Hardy:\nThis binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act\n(FOIA) (5 ILCS 140/9.5(f), added by Public Act 96-542, effective January 1, 2010).\nThe Office of the Public Access Counselor (Office) has reviewed the above-referenced Request\nfor Review submitted by The News-Gazette on January 31, 2011, the responsive documents\npreviously submitted by the University of Illinois concerning these records, and correspondence\nreceived by both parties since The News-Gazette submitted this Request for Review.\nBackground\nOn January 21, 2011, Julie Wurth, a reporter with The News-Gazette submitted a FOJA request\nto the University seeking records that The News-Gazette, Chicago Tribune, and WDWS-AM and\nWHMS-FM previously requested concerning the University’s recent presidential search.’ In\n' Specifically, on April 27, 2010, Ms. Wurth submitted a FOIA request seeking “copies of all payments or\nreimbursements, and supporting documentation, to members of the University of Hlinois presidential search\ncommittee, Michael Baer and/or staff for Isaacson, Miller. This request includes but is not limited to, vouchers,\nitineraries and receipts, and covers the period from Oct. | to the present.” On May 14, 2010, Jodie Cohen, Staff\nReporter, Chicago Tribune, submitted a FOIA request seeking “[a]l! documentation, from October 1, 2009 to the\npresent, showing expenditure funds related to University of Illinois’ presidential search. This could include, but not\n500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 © TTY: (877) 844-5461 © Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 © (312) 814-3000 ¢ TTY: (800) 964-3013 * Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 © (618) 529-6400 ¢ TTY: (877) 675-9339 © Fax: (618) 529-6416 <p»\nMr. Thomas Hardy\nThe University of Hlinois\nApril 1, 2011\nPage 2\nresponse to these previous records requests, the University initially submitted Pre-Authorization\nRequests with this Office on May 11, 2010, May 28, 2010, and June 9, 2010 (2010 PAC 7336,\n7704, 7852) seeking to withhold under Section 7(1)(c) (5 LLCS 140/7(1)(c)) certain responsive\ninformation, including: (1) the names and personal identifiers of job applicants; (2) information\nsuch as the name of an applicant that is currently employed by the University; (3) the address of\nan on-campus travel agency used to arrange airfare; and (4) the airport of departure when it is\nsmall enough to clearly point to a specific candidate. After reviewing the University’s position,\nthis Office issued a determination as to these Pre-Authorization Requests on August 2, 2010\nconcluding, among other things, that the University had not met its initial burden of justifying a\nSection 7(1)(c) redaction of: (1) the name of the university at which any of the applicants is\ncurrently employed; (2) the address of on-campus travel agencies used to arrange travel related\nto the University’s presidential search; and (3) any of the airports of departure related to the\nUniversity’s presidential search.\nAfter receiving our August 2, 2010 determination letter, the University partially denied the FOIA\nrequests, informing the requesters that it disagreed with this Office’s determination and was\nwithholding the following information pursuant to Section 7(1)(c): (1) the name of the university\nat which any of the applicants are currently employed; (2) the address of on-campus travel\nagencies used to arrange travel related to the presidential search; and (3) any of the airports of\ndeparture related to the presidential search. The University also informed the requesters that\npursuant to Section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g)), it was withholding information\nrelating to the calculation of the fees charged to the University by the Boston-based recruitment\nfirm Isaacson, Miller which was hired to assist with the presidential search.\nFollowing the University’s partial denial of their FOIA requests, The News-Gazette and the other\nmedia requesters submitted FOIA Requests for Review to this Office. This Office issued a non-\nbinding determination on November 17, 2010 in 2010 PAC 8971 finding that the University had\nonly met its burden of justifying the redaction of unsuccessful candidates’ identities and current\nemployers. This Office concluded that the University had failed to meet its burden to\ndemonstrate that the disclosure of the regional airport, flight number, date of flight and on-\ncampus travel agency used as part of the presidential search would be highly personal or\nobjectionable to a reasonable person. We further concluded that a legitimate public interest\nexists in disclosure of this information because it is ultimately related to the expenditure of\npublic funds and Section 2.5 of FOIA subjects this information to disclosure. With regard to the\ninformation concerning the fees charged by Isaacson, Miller, we concluded that the University\nhad not met its burden to demonstrate that that disclosure of this information would cause\nsubstantial harm to the search firm as required under Section 7(1)(g). We also found that the fee\nbe limited to, copies of all payments or reimbursements, along with supporting documentation, to members of the\nsearch committee or the search firm. It also could include direct payments from the university to vendors for such\nitems as airfare, entertainment or other expenses.” On May 25, 2010, Patrick Phingsten, News Anchor, WDWS-AM\nand WHMS-FM, submitted a FOIA request seeking “all applicants and/or applications received during recently\nconcluded search for the position of University of Illinois President. (October 1, 2009 to May 20, 2010) [and] [a]ll\nbills, travel expenses, vouchers, itineraries provided to the University by applicants, search committee members, or\nsearch firm Issacson-Miller. (October 1, 2009 to the present) Our request also applies to airfare, hotel or other\ntravel-related expenses.”\nMr. Thomas Hardy\nThe University of Illinois\nApril 1, 2011\nPage 3\ninformation relates directly to the expenditure of public funds and is subject to disclosure under\nSection 2.5. Based on these conclusions, this Office directed the University to disclose all non-\nexempt records. The University did not disclose the records in response to this Office’s letter.\nIn the current FOJA request, Ms. Wurth specifically stated: “The University has yet to provide\ninformation it was obligated to disclose pursuant to a Nov. 17 letter to you from the Illinois\nAttorney General. In that letter, ... the Office of the Public Access Counselor determined that a\nnumber of documents related to the Presidential search were not exempt documents under the\nIllinois FOIA and that the university was obligated to disclose them. Therefore, we are\nrequesting copies of all of those documents.” On January 28, 2011, the University denied that\nrequest. The University relied on Section 3(g) of FOIA (5 ILCS 140/3(g)) and asserted that the\nrequest is “unduly burdensome” as a “[r]epeated request from the same person for the same\nrecords that are unchanged or identical to records previously provided or properly denied.” On\nJanuary 31, 2011, this Office received The News-Gazette’s Request for Review. On February 9,\n2011, we notified the University that we would require additional information to determine\nwhether the University’s response complied with FOIA. Since that time, we have received a\nwritten response from the University, as well as additional correspondence from The News-\nGazette, all of which we have considered in making a determination regarding this matter.\nSection 1.2 of FOIA (5 ILCS 140/1.2) provides that “[a]ll records in the custody or possession of\na public body are presumed to be open to inspection and copying. Any public body that asserts\nthat a record is exempt from disclosure has the burden of proving by clear and convincing\nevidence that it is exempt.” Therefore, in the context of a Request for Review, the issue is\nwhether the public body has proved by clear and convincing evidence that the information it has\nwithheld is exempt from disclosure under FOIA. As set forth more fully below, we find that the\nUniversity has not met its burden of demonstrating that the records responsive to Ms. Wurth’s\nFOIA Request are exempt under Section 3(g) of F OIA,\nThe University asserts that the requested records are exempt under Section 3(g) of FOIA, which\nprovides:\nRequests calling for all records falling within a category shall be\ncomplied with unless compliance with the request would be unduly\nburdensome for the complying public body and there is no way to\nnarrow the request and the burden on the public body outweighs\nthe public interest in the information. Before invoking this\n? As noted above, in response to The News-Gazette’s and the other media outlets’ initial FOIA requests, the\nUniversity asserted that certain responsive records are exempt from disclosure under Section 7 (1}(c) and Section\n7(1)(g). Our November 17, 2010 determination in 2010 PAC 8971 included an analysis of the records and the\narguments made by the University and the requesters under Section 7(1)(c) and Section 7(1)(g) of FOIA. Although\nthe University does not assert a Section 7 exemption in response to the current FOIA request in either its January 28,\n2011 denial letter or its subsequent correspondence to our Office as part of this Request for Review, we restate as\npart of this binding opinion and explicitly incorporate herein by reference our previous analysis and findings\nconcerning the application of the Section 7 exemptions to the records at issue here. (See attached November 17,\n2010 determination in 2010 PAC 8971).\nMr. Thomas Hardy\nThe University of I}inois\nApril 1, 2011\nPage 4\nexemption, the public body shall extend to the person making the\nrequest an opportunity to confer with it in an attempt to reduce the\nrequest to manageable proportions. If any body responds to a\ncategorical request by stating that compliance would unduly\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information.\nRepeated requests from the same person for the same records that\nare unchanged or identical to records previously provided or\nproperly denied under this Act shall be deemed unduly\nburdensome under this provision.\nIn its January 28, 2011 denial to Ms. Wurth’s FOIA request, the University stated:\nThis request is identical to elements of the FOIA request received\nby my office on April 27, 2010 (#10-029). Our August 5 response\nto that request was reviewed by the office of the Public Access -\nCounselor, which issued a non-binding determination (PAC\n#8971), dated November 17, 2010, on which you were copied.\nThe PAC advised that its correspondence served to close the\nmatter. Pursuant to section 140(3)(g) of the Illinois Freedom of\nInformation Act, your January 21 request is denied. Section\n140(3)(g) of the Act states that “... Repeated requests from the\nsame person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act shall\nbe deemed unduly burdensome under this provision.”\nIn response to our request for additional information, the University also argues:\nThe prohibition in section 140/3(g) of FOIA against repeated\nrequests from the same person for the same records that are\nunchanged or identical to records previously provided or properly\ndenied is an attempt to protect public bodies and the office of the\nPAC from having to repeatedly address requests that have already\nbeen processed through the FOIA review process. Such repeat\nrequests are an unduly burdensome imposition on the limited\nresources of taxpayer-funded entities and should not be permitted\nunder the statute... . Given that the full costs of that search and\nvery nearly all other information sought has already been\nproduced, and the matter declared by the PAC to be closed, the\nNews-Gazette’s attempt to resume its inquiry constitutes an\nMr. Thomas Hardy\nThe University of Hlnois\nApril 1, 2011\nPage 5\nimproper and unduly burdensome attempt to revive a completed\nreview process. Moreover, by filing a second FOIA request\nseeking to recover the same documents that the PAC has\nconsidered and ruled upon its November 17, 2010, non-binding\ndetermination letter, the News-Gazette in effect is improperly\nasking the PAC to reconsider its decision to issue its November 17\nruling as a non-binding decision. Under FOIA section 140/9.5(f),\n“In responding to any request under this Section 9.5, the Attorney\nGeneral may exercise his or her discretion and choose to resolve a\nrequest for review by mediation or by a means other than the\nissuance of a binding opinion. The decision not to issue a binding\nopinion shall not be reviewable.”. .. Regardless of what\nadvantages the News-Gazette hopes to obtain from making the\nPAC decision binding, the process it has sought to employ to\nachieve that result plainly contravenes the actions taken by the\nPAC to date, as well as the language of the statute.\nIn reply, The News-Gazette argues:\n{t]he records requested have not been “previously provided.”\nFurthermore, The News-Gazette’s position is that the records have\nnot been “properly denied” when there is a November 17, 2010\nwritten opinion from PAC that the documents requested are not\nexempt from disclosure. Therefore, The News-Gazette is\nrequesting documents that have been improperly denied to it by the\nUniversity.\nAnalysis\nSection 3(g) creates an exemption for “unduly burdensome” FOIA requests, and provides that a\nsecond or subsequent request may be deemed unduly burdensome when it is “from the same\nperson for the same records that are unchanged or identical to records previously provided or\nproperly denied under this Act ....” (Emphasis added.) Under the plain language of Section\n3(g), to be deemed unduly burdensome, a request (1) must be from the same person as a previous\nrequest, (2) seek the same records as the previous request, and (3) the records must be unchanged\nor identical to the records which were (4) either provided in response to the previous request or\nproperly denied under the law.\nIn the newspaper’s April 27, 2010 FOJA request, it sought “copies of all payments or\nreimbursements, and supporting documentation, to members of the University of Illinois\npresidential search committee, Michael Baer and/or staff for Isaacson, Miller. This request\nincludes but is not limited to, vouchers, itineraries and receipts, and covers the period from Oct.\n1 to the present.” By its terms, this request focused on payments or reimbursements “to\nmembers of the University of Illinois presidential search committee.” Unlike the FOIA requests\nMr. Thomas Hardy\nThe University of Illinois\nApril 1, 2011\nPage 6\nfrom the Chicago Tribune reporter and the WDWS-AM and WHMS-FM news anchor, The News-\nGazette request did not seek all expenditures relating to the presidential search or the-\nexpenditures relating to the applicants. In the current FOIA request, however, The News-Gazette\nis now seeking all of the documents that the University failed to provide in response to all three\nFOIA requests — including the records responsive to the Chicago Tribune and WDWS-AM and\nWHMS-FM requests. As a result of the differences in the three initial FOIA requests from the\nmedia outlets, it appears that the current FOIA is not from the same person as two of the three\nprevious FOIA requests and does not seek the same records as two of those requests.\nEven if The News-Gazette was only seeking the same documents that it previously sought,\nhowever, the University cannot establish that Section 3(g) applies. The University argues that it\npreviously provided records to The News-Gazette in response to the newspaper’s April 27, 2010\nrequest. The only records sought by The News-Gazette in its present FOIA request are those that\nthe University refused to disclose in response to the three April and May, 2010 media FOIA\nrequests. The News-Gazette does not seek to obtain records that the University previously\nprovided. As a result, the remaining issue here is whether the University properly denied the\nprevious FOIA requests for these records.\nIn our November 17, 2010 letter (attached hereto and incorporated herein as part of this binding\nopinion), this Office analyzed the University’s arguments and determined that it had not met its\nburden to demonstrate that the records are exempt under Section 7(1)(c) and Section 7(1)(g).\nNotwithstanding that analysis and direction from this Office, the University refused to disclose\nthe records. The University now argues that despite that determination from this Office, it\nproperly denied the previous request and, therefore, Section 3(g) applies. Given this Office’s\nprevious determination, the University’s reliance on Section 3(g) to withhold these records is\nunfounded. The University’s argument as to Section 3(g) implies that unless a FOIA request has\nbeen determined to have been improperly denied through a binding decision by the Public\nAccess Counselor, the public body can simply assert that a second or subsequent request was\nproperly denied. Section 3(g) provides no support for that argument. On the contrary, given\nFOIJA’s clear language creating a presumption that records are open to the public and placing the\nburden on the public body to establish by clear and convincing evidence that records are exempt,\nthe University bears the burden here of establishing that it properly denied the previous FOIA\nrequests for these records. Because the University cannot establish that it has previously\nproperly denied the records responsive to Ms. Wurth’s January 21, 2011 request, it cannot treat\nthis request as an unduly burdensome repeated request under Section 3(g).\nThe University also argues that our Office lacks authority to issue any further determinations\nwith regard to Ms. Wurth’s January 21, 2011 request, due to our November 17, 2011\ndetermination in 2010 PAC 8971. It cites Section 9.5(f) in support of this argument. This\nSection provides, in pertinent part:\nIn responding to any request under this Section 9.5, the Attorney\nGeneral may exercise his or her discretion and choose to resolve a\nrequest for review by mediation or by a means other than the\nMr. Thomas Hardy\nThe University of Illinois\nApril 1, 2011\nPage 7\nissuance of a binding opinion. The decision not to issue a binding\nopinion shall not be reviewable. Upon receipt of a binding opinion\nconcluding that a violation of this Act has occurred, the public\nbody shall either take necessary action immediately to comply with\nthe directive of the opinion or shall initiate administrative review\nunder Section 11.5. If the opinion concludes. that no violation of\nthe Act has occurred, the requester may initiate administrative\nreview under Section 11.5.\nThe University attempts to construe this provision so as to deny any effective review of a denial\nof a FOIA request under Section 3(g). It is important to note that The News-Gazette did not\nmerely seek reconsideration or enforcement of this Office’s November 17, 2010 determination\nletter. Rather, The News-Gazette sent a new FOIA request to the University seeking the\ndocuments previously withheld in response to FOIA requests from the newspaper and two other\nmedia outlets. Once the University failed or refused to disclose these records, The News-Gazette\nfiled a new Request for Review under Section 9.5(c). Under these circumstances, The News-\nGazette exercised its statutory right to seek this Office’s review of the University’s Section 3(g)\ndenial. This Office, therefore, has jurisdiction to issue a binding opinion under Section 9.5(f).\nFindings and Conclusions\nAfter full review and giving due consideration to the positions of the parties, the Attorney\nGeneral finds that:\n1) The News-Gazette’s Request for Review was timely filed and otherwise complies with the\nrequirements of Section 9.5(a) of the Freedom of Information Act (5 ILCS 140/9.5(a)).\nTherefore, the Attorney General may properly issue a binding opinion with respect to the\ndisclosure of the requested records.\n2) The University of Illinois possesses records responsive to The News-Gazette’s request but\nhas asserted that the request is “unduly burdensome” and the records are exempt from\ndisclosure under Section 3(g) of the Freedom of Information Act because it is a “[r]epeated\nrequest[] from the same person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act ....”\n3) The University of Illinois has failed to sustain its burden of demonstrating that the request in\nquestion constitutes a “[rJepeated request[] from the same person for the same records that\nare unchanged or identical to records previously provided or properly denied under this Act”\nunder Section 3(g).\n4) Accordingly, these records of the University of Illinois are not exempt from disclosure under\nSection 3(g) of the Freedom of Information Act.\nMr. Thomas Hardy\nThe University of Illinois\nApril 1, 2011\nPage 8\nTherefore, it is the opinion of the Attorney General that the University of Illinois has violated\nFOIA by improperly denying The News-Gazette’s January 21, 2011 request for records. The\nUniversity is required to provide copies of the requested records to Ms. Wurth pursuant to her\nJanuary 21, 2011 request. Under Section 9.5(f) of FOIA, the University must either immediately\ncomply with this binding opinion or initiate administrative review under Section 11.5 of FOIA.\nThis opinion shall be considered a final decision of an administrative agency for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 4/3-101 et seg. An\naggrieved party may obtain judicial review of the decision by filing a complaint for\nadministrative review in the Circuit Court of Cook or Sangamon County within 35 days of the\ndate of the decision naming the Attorney General of Illinois and Ms. Julie Wurth as defendants.\nSee 5 ILCS 140/11.5.\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nry\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nce: Ms. Julie Wurth, Staff Reporter, The News-Gazette\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nMs. Traci E. Nally\nSenior Counsel, The News-Gazette\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nATTACHMENT\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nNovember 17, 2010\n- Lisa Madigan\nATTORNEY GENERAL\nMr. Thomas Hardy\nExecutive Director, University Relations\nUniversity of IllinoisS06 Wright Street\nUrbana, Illinois 61801\nRe: FOIA Request for Review — 2010 PAC 8971, 9114\nDear Mr. Hardy:\nThe Office of the Public Access Counselor (Office) has reviewed the Request for Reviews\nsubmitted by the Champaign News-Gazette, Chicago Tribune, and WDWS-AM and WHMS-FM\nand the responsive documents submitted by the University of Illinois (University) on August 31,\n2010.\nFindings of Fact\nOn April 27, 2010, Julie Wurth, Staff Reporter, Champaign News-Gazette (News Gazette)\nsubmitted a Freedom of Information Act (FOIA) request seeking the following information:\n«copies of all payments or reimbursements, and supporting documentation, to members of the\nUniversity of Illinois presidential search committee, Michael Baer and/or staff for Isaacson,\nMiller. This request includes but is not limited to, vouchers, itineraries and receipts, and covers\nthe period from Oct. | to the present.”\nOn May 14, 2010, Jodie Cohen, Staff Reporter, Chicago Tribune (Tribune), submitted a FOLIA\nrequest seeking the following information:\n“All documentation, from October 1, 2009 to the present, showing expenditure funds related to\nUniversity of Illinois’ presidential search. This could include, but not be limited to, copies of all\npayments or reimbursements, along with supporting documentation, to members of the search\ncommittee or the search firm. It also could include direct payments from the university to\nvendors for such items as airfare, entertainment or other expenses.”\n500 South Second Street, Springfield, Elinois 62706 * (217) 782-1090 » TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Mlinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 » Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 * (618) 529-6400 + TTY: (618) 529-6403 + Fax: (618) $29-6416\nMr. Thomas Hardy\nThe University of I{linois\nNovember 17, 2010\nPage 2\nOn May 25, 2010, Patrick Phingsten, News Anchor, WDWS-AM and WHMS-FM, submitted a\nFOIA request to the University and requested the following information: ,\n1. All applicants and/or applications received during recently the concluded search for\nthe position of University of Illinois President (October 1, 2009 to May 20, 2010);\nand\n2. All bills, travel expenses, vouchers, itineraries provided to the University by\napplicants, search committee members, or search firm Issacson-Miller (October 1,\n2009 to the present). The request also applies to airfare, hotel or other travel-related\nexpenses.\nBecause all three FOIA requests seek similar sets of records, we are addressing them as one\nconsolidated Request for Review herein.’\nThe University submitted a Pre-Authorization Request with this Office on June 9, 2010 and\nasserted that certain information is exempt from disclosure pursuant to Section 7(A\\(ec) ( ILCS\n140/7(1)(c)), which exempts from inspection or copying “[p]ersonal information contained\nwithin public records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless disclosure is consented to in writing by the individual subjects of the\ninformation.” id. The exemption defines “[u]nwarranted invasion of personal privacy” as “the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject’s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.” Jd. Specifically, the University stated the following information was exempt\npursuant to Section 7(1)(c):\n1, Names and personal identifiers of job applicants;\n2. Information such as the name of an applicant that is currently employed by the\nUniversity, the address of an on-campus travel agency that used to arrange airfare,\nand the airport of departure when it is small enough to clearly point to a specific\ncandidate; and\n3. The names of private citizens who work for trustees in a non-University capacity.\nThis Office responded to the University’s Pre-Authorization Request on August 2, 2010,\ngranting in part and denying in part the University’s request to withhold information pursuant to\nSection 7(1)(c). In the letter, this Office concluded the following:\n* The University has met its burden to justify redacting the names and applications\nof all non-hired applicants for the position of University president.\ne The University has not met its burden to justify redacting the name and\napplication of the selected applicant, Michael J. Hogan.\n' The University also seeks to redact the name of a student contained in a document pursuant to the Family\nEducational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 CFR Part 99. In October 28, 2010 conversations with\nboth Brendan Healey and Traci Nally, both parties have confirmed that the they are not seeking this information.\nMr. Thomas Hardy\nThe University of Illinois\nNovember 17, 2010\nPage 3\n° Home telephone numbers, personal cell phone numbers and home addresses of\napplicants do not properly fall within the Section 7(1)(c) exemption, and we\ndecline to make a determination as to whether the University may redact this\ninformation pursuant to Section 7(1)(b). Work telephone numbers and addresses\nof the non-hired applicants, however, do fal] within the Section 7(1)(c) exemption\nand the University has met its burden to justify redacting this information\npursuant to this Section of FOIA.\ne The University has not met its burden to justify redacting (1) the name of the\nUniversity at which any of the applicants is currently employed; (2) the address of\non-campus travel agencies used to arrange airfare related to: the University’s\npresidential search; or (3) any of the airports of departure related to the\nUniversity’s presidential search and (4) the names of private citizens who work\nfor trustees in a non-University capacity.\nIn the Pre-Authorization letter, this Office declined to address any matters relating to Section\n7(1)(g) (5 ILCS 140/7(1)(g)) which exempts from inspection and copying “Trade secrets and\ncommercial or financial information obtained from a person or business where the trade secrets\nor commercial or financial information are furnished under a claim that they are proprietary,\nprivileged or confidential, and that disclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or business, and only insofar as the\nclaim directly applies to the records requested . . .”\nOn August 5, 2010, the Tribune, News-Gazette, WDWS-AM, and WHMS-FM received a partial\ndenial letter from the University indicating that it disagreed with this Office’s findings in 2010\nPAC 7336, 7704 and 7852 and asserting that the University had met its burden pursuant to\nSection 7(1)(c) with respect to withholding: (1) the name of the University at which any of the\napplicants are currently employed; (2) the address of on-campus travel agencies used to arrange\nairfare related to the University’s presidential search; and (3) any of the airports of departure\nrelated to the University’s presidential search.\nThe University also asserted that information relating to the University’s procurement of the\nBoston-based recruitment firm Isaacson, Miller to assist the University with the Presidential\nsearch is exempt from disclosure pursuant to Section 7(1)(g).\nOn August 5, 2010, the University provided the Tribune, News-Gazette, WDWS-AM, and\nWHMS-FM with approximately 1,000 pages of documents from October 2009 through July 2010\nthat related to the University’s search for the new President. Included in these documents were\nthe names of private citizens who worked for the trustees in a non-University capacity. On\nOctober 8, 2010, the University sent a letter to WDWS-AM indicating that it would be providing\nMr. Phingsten with copies of all application information relating to Dr. Hogan.\n2 This is only pertinent to the request filed by WD WS-AM and WHMS-FM.\nMr. Thomas Hardy\nThe University of Illinois\nNovember 17, 2010\nPage 4\nThis Office received a Request for Review from the News-Gazette, WDWS-AM and WHMS-FM\non August 9, 2010 and from the Tribune on August 16, 2010. This Office initiated further\nreview with regard to the News-Gazette, WDWS-AM and WHMS-FM on August 18, 2010 and\nwith regard to the Tribune on August 19, 2010.”\nOn August 31, 2010, the University responded to our further inquiry letter and renewed its initial\nargument as to the disclosure of the information it previously denied pursuant to Section 7(1)(c)\nand addressed the Isaacson, Miller documents pursuant to Section 7(1)(g). Additionally, the\nUniversity supplemented its response with 11 affidavits from employees from the University and\nother academic institutions,’ four affidavits from individuals with regard to the information\nrelating to Isaacson, Miller,* media clippings,” a copy of No. 2010 PAC 6805, a previously-\nissued Pre-Authorization letter from this Office and a copy of the further review letter for No.\n2010 PAC 7336.\nOn September 20, 2010 and September 28, 2010, this Office sent a 21-day extension letter to the\nUniversity pursuant to Section 9.5(f). On September 29, 2010, Traci Nally, Senior Counsel,\nNews-Gazette, WDWS-AM and WHMS-FM responded to the University’s letter. On October 8,\n2010, Don Craven, on behalf of the Tribune, submitted a response letter to the University’s\nletter.\nDeterminations\nSection 3(a) of FOIA (5 ILCS 140/3(a)) provides that “[e]ach public body shall make available\nto any person for inspection or copying all public records, except as otherwise provided in\nSection 7 of this Act.” | Under Section 1.2 of FOJA (5 ILCS 140/1.B, “fajll records in the\ncustody of a public body are presumed to be open to inspection and copying.” This section\nfurther states that “[a]ny public body that asserts that a record is exempt from disclosure has the\nburden of proving by clear and convincing evidence that it is exempt.” (Emphasis added.)\n3 With regard to information relating to the applicants, the University provided this Office with affidavits from the\nfollowing individuals: Alvin Bowman, President, Illinois State University; Al Goldfarb, President, Western Illinois\nUniversity; Sharon Hahs, President, Northeastern [linois University; Michael J. Hogan, President, University of\nIllinois; Stanley Ikenberry, Former President, University of Illinois; Elaine Maimon, President, Governors State\nUniversity; William Perry, President, Eastern Illinois University; John G. Peters, President, Northern Illinois\nUniversity; Dr. Glenn Poshard, President, Southern Illinois University; Michele M. Thompson, Secretary, Board of\nTrustees, University of Illinois, Wayne Watson, President, Chicago State University. In addition to his affidavit,\nformer President Stanley Ikenberry submitted the following five media clippings: “U of Maryland Narrows Field for\nPresident to 5,” Washington Post, February 15, 1978; “4 Recommended for Presidency of Maryland University,”\nFebruary 18, 1978, “U- MD Offers Presidency to 5\" on List; 4 Declined, Washington Post, March 22, 1978; “U-\nMd. Presidency Offered to Head of N.Y. University,” unknown date.\n4 With regard to information relating to the search firms, the University provided this Office with affidavits from the\nfollowing individuals: Michael Baer, Isaacson, Miller, Jerry H. Baker, Baker and Associates; Kenneth Kring,\nKort/Ferry International; Richard D. Legon, President, Association of Governing Boards of Universites and\nColleges.\n5 Articles from the August 8, 2010 edition of The Chronicle of Higher Education include: “Too Much Sunshine Can\nComplicate Presidential Searches,” “How a Public Search Cost a Provost Her Job,” and “A Presidential Search at\nFlorida Atlantic: One Candidate’s Experience.”\nMr, Thomas Hardy\nThe University of I[inois\nNovember 17, 2010\nPage 5\nInformation relating to the Unsuccessful Applicants\nIn its response letter, the University asserts that disclosure of: (1) the name of the current\nemployer at which any of the unsuccessful applicants are currently employed; (2) the\naddress of on-campus travel agencies used to arrange airfare related to the University’s\nPresidential search; or (3) any of the airports of departure related to the University’s\npresidential search could lead to the disclosure of the identities of the unsuccessful\napplicants.\nWith respect to the disclosure of the identities of unsuccessful applicants for the\nPresidency position, this Office made the following determination in 2010 PAC 6805, a\nPre-Authorization Request involving a FOIA request submitted to the University by\nWLS-TV for the same information. In that letter, we noted the following:\nApplications for employment generally contain information that is personal in nature and\nthe release of which would be objectionable to the reasonable person. Further, in many\ncases, the fact that an individual is seeking new employment for a position is information\nthat a reasonable person would view as highly personal and the release of that\ninformation is likely to be viewed as objectionable by most individuals. Publication of an\nindividual’s application for a position can negatively impact that individual’s current\nemployment and the release of personal information about applicants may also negatively\nimpact a public body’s ability to attract qualified applicants for open positions.\nAccordingly, as a result of our review, we have determined that the University may\nproperly decline to disclose under Section 7(1)(c) the names of applicants for the position _\nof University President and the applications submitted by those individuals.\nThis Office renewed these findings in No. 2010 PAC 7336, 7704 and 7852 in support of\nour determination that disclosure of the names of the unsuccessful applicants would\namount to an invasion of privacy pursuant to Section 7(1)(c). The University relies on\nthe affidavits, media clippings and previous determination letters from this Office to\nsupport its argument that incidental information related to the University’s search for the\nPresident is also exempt from disclosure pursuant to Section 7(1)(c).\nEach affidavit submitted by officials from other academic institutions underlies the\nUniversity’s assertion that disclosure of identifying information such as the name and\napplication of the unsuccessful applicant, the current employer of the unsuccessful\napplicant, the identity of the regional airport and the travel agency could cause harm for\nthat specific applicant within his current place of employment and lead to the disclosure\nof that applicant’s identity.\nMr. Thomas Hardy\nThe University of [linois\nNovember 17, 2010\nPage 6\nJohn G. Peters, President, Northern Illinois University, stated the following in his August\n26, 2010 Affidavit:\nThe harm caused by directly releasing an applicant’s name can also be caused by\nrequiring a public body to release information, which, in context, would reveal the\nidentities of applicants. For example such “identifying information” may consist of:\ne An individual’s title and current employer,\n© The name ofa very small regional airport near a single college or university\n© The name ofa larger airport combined with the exact travel mileage incurred and\nreimbursed, thereby identifying the college and university.\nDisclosure of this information will inevitably reveal the precise identities of applicants,\nwhich is just as harmful as directly revealing those identities. Most Land-Grant\nuniversities are located in non-metropolitan areas. The pool of high level candidates\nfrom the group is quite smal] and well known in the academic community. A candidate\nflying out of the Lincoln, Nebraska airport, for instance, would immediately be identified.\nWilliam L. Perry, President, Eastern Illinois University, stated the following in his\nAugust 25, 2010 Affidavit:\nThe harm caused by directly releasing an applicant’s name can also be caused by\nrequiring a public body to release information which, in context, would reveal the\nidentities of applicants.\nFinally, Stanley Ikenberry, former President, University of Illinois, stated the following\n;\nin his August 20, 2010 Affidavit:\nThe harm caused by directly releasing an applicant’s name can also be caused by\nrequiring a public body to release information, which in context, would reveal the\nidentities of the applicants...Disclosure of this information would inevitably reveal the\nprecise identities of applicants, which ts just as harmful as directly revealing those\nidentities.\nAs we noted in No. 2010 PAC 6805 and 2010 PAC 7336, 7704 and 7852, disclosure of\nthe identities of unsuccessful applicants could adversely impact that applicant’s position\nwith their current employer. This finding, however, does not extend to all records\nrelating to a public body’s search for a candidate. Specifically, there exists a legitimate\npublic interest in the scope of the University’s search for a new President. Moreover,\nseveral of these records relate to the expenditure of public funds under Section 2.5 of\nFOIA that provides that “[aJll records relating to the obligation, receipt, and use of public\nfunds of the State, units of local government, and school districts are public records\nsubject to inspection and copying by the public.” 5 ILCS 140/2.5 (Emphasis added.)\nMr. Thomas Hardy\nThe University of Illinois\nNovember 17, 2010\nPage 7\nThe Names of the Current Employers of Unsuccessful Applicants\nThis Office renews the findings in 2010 PAC 6805, 2010 PAC 7336, 7704 and 7852 in support\nof our conclusion that the disclosure of the identity of the unsuccessful applicants and their\napplications would constitute a highly unwarranted invasion of personal privacy and those\ndocuments are therefore exempt from disclosure under Section 7(1){c).\nWith regard to the disclosure of the current employer of the unsuccessful applicant, we now find\nthat the University has met its burden in demonstrating that the name of the current employer is\nexempt from disclosure pursuant to Section 7(1)(c).\nIn the University’s May 11, 2010 Pre-Authorization Request to this Office, the University did\nnot distinguish between the disclosure of the name of the applicant, the application and the\napplicant’s current employer.\nWhile this Office previously ruled on this matter in 2010 PAC 6805 as to the identities of the\napplicants and their applications, this Office had not made a finding specifically directed to the\ndisclosure of the name of the current employer of an unsuccessful applicant. In another context,\nthis Office has found that disclosure of an employer, absent certain circumstances, 1s not\nconsidered to be a matter of personal privacy. In 2010 PAC 7440, we noted the following with\nrespect to the disclosure of an arrestee’s employment:\nSimply because information can be characterized as personal does not automatically\nmake it exempt under Section 7(1)(c). The high standard under this subsection requires\nthat the information seeking to remain exempt is highly sensitive and objectionable to the\nreasonable person. In this instance, the alleged offender is likely making his place of\nemployment known to his coworkers, friends, family and possibly other members of the\npublic. The Department has not furnished us with any unique information about the\nalleged offender’s employment to think that the disclosure would be highly sensitive or\nobjectionable to the reasonable person.\nSimilarly, the University provided no evidence in support of its Pre-Authorization Request with\nregard to how disclosure of the name of the current employer in this context constitutes an\nunwarranted invasion of personal privacy. Instead, this argument was subsumed by the\nUniversity’s argument against disclosure of the identities of the applicants and the applications.\nTherefore, we initially concluded that the University did not meet its burden in demonstrating\nhow disclosure of the identity of the current employer by itself is considered highly personal or\nobjectionable to the reasonable person.\nIn the August 31 letter, the University states that “only by undertaking a more fulsome fact-\nspecific-analysis here will the PAC reach a decision that protects the privacy interests of private\nindividuals who were involved in the University’s presidential search.”\nMr. Thomas Hardy\n_ The University ofH inois\nNovember 17, 2010\nPage 8\nBased on that letter and the University’s supplemental documents, which include the affidavits\nand media clippings, we have determined that the University has met its burden that disclosure of\nthe unsuccessful applicant’s current employer could constitute a highly unwarranted invasion of\npersonal privacy. The letter states that the final candidates for the President of the University\nwere highly qualified and experienced individuals who held senior administrative positions at\nother colleges and universities, such as President and provost. The University also states that\ndisclosure of the current employer could create a negative impact on that applicant’s current\nemployer. Because of the type of applicants that were considered for this position and the fact\nthat they were not hired, there exists no legitimate public interest in disclosure of the employers\nof the unsuccessful applicants. And unlike the finding we made in 2010 PAC 7440, the\nUniversity has supplied us with specific information about how the disclosure of the\nunsuccessful applicant’s current employment would be highly sensitive or objectionable to the\nreasonable person. Therefore, the University may withhold the current employers of the\nunsuccessful applicants.\nRegional Airports, the names of the airlines, the date of flight and the flight number\nThe requesters also seek the names of the airlines, departing airport, date of flight and flight\nnumber used by the unsuccessful applicants. The University seeks to withhold this information,\nspecifically the identity of the regional airport that is within close proximity to only one\nuniversity because, it is argued that such information points to a small geographical area and\nwould almost lead to the identification of the university and the candidate.\nAs explained by President Peters in his Affidavit, several “Land Grant”’ universities are of\nsignificant distance from large metropolitan areas and the disclosure of a small airport in\nLincoln, Nebraska, for example, could reveal the identity of a particular candidate. Using\nPresident Peters’ example, Lincoln, Nebraska is home to the University of Nebraska. President\nPeters argues that if an applicant boarded a flight from Lincoln, Nebraska to Chicago O’Hare,\nthat applicant was likely employed by the University of Nebraska.\nThe first part of the analysis under Section 7(1)(c) is to determine if such information can be\nconsidered highly personal or objectionable to the reasonable person. Unlike the identity of the\ncurrent employer of an unsuccessful applicant, an airport used by an applicant for a job interview\ncannot be characterized as personal in nature.\nAdditionally, a public body cannot characterize non-personal information as personal simply\nbecause the possibility that a diligent reporter could effectively piece together information\n5 in an October 22, 2010 conversation with this a representative of this Office, University Relations Director\nThomas Hardy acknowledged that the departing locations from airports within large metropolitan areas such as New\nYork City, was disclosed to the requesters.\n? According to Webster’s Dictionary, a Land-Grant university (also called land-grant colleges or land grant\ninstitutions) are institutions of higher education in the United States designated by each state to receive the benefits\nof the Morrill Acts of 1862 and 1890.\nMr, Thomas Hardy\nThe University of [linois\nNovember 17, 2010\nPage 9\nobtained through FOIA and from sources outside of FOIA in order to draw a reasoned inference\nbased on available facts.\nTo the extent that disclosure could constitute a highly unwarranted invasion of personal privacy,\nthis Office concludes there exists a legitimate public interest in the locations of the regional\nairport. If the University conducted a nationwide search for a new President, then there is a\nmaterial difference in airfare from applicants who, for example, departed from College Station,\nTexas, Sioux Falls, South Dakota, Madison, Wisconsin or Athens, Georgia. There is also a\nmaterial difference in price based on the airline used by the University. A flight on a commercial\ncarrier is likely different in price than a flight on a smaller regional airline. Airfares are subject\nto price fluctuation on a variety of factors such as airline, destination, seat location, time, date\nand route. Therefore, we find that the airline, date of flight, flight number and departing airport\nare records that are within the scope of Section 2.5 and must be disclosed to the requesters.\nTravel Agencies\nNext, the requesters seek the names of the on-campus travel agency used to arrange the travel\nneed of the applicants.\nUnder the Section 2.5 analysis, the University’s utilization of an on-campus travel agency for the\npurposes of planning a flight for a potential applicant falls squarely within records relating to the\nobligation or expenditure of public funds. The University has not met its burden by\ndemonstrating through clear and convincing evidence that disclosure of the on-campus travel\nagency could be linked to the identity of the unsuccessful applicant or that such information\nremains highly personal or objectionable to the reasonable person.\nThe University has not met its burden with regard to the name of the on-campus travel agency\nthat arranged the unsuccessful applicant’s travel. Therefore, the names of the travel agencies\nmust be released.\nInformation Relating to the University’s Search Firm\nThe University explains that a portion of documents submitted to the University by Isaacson,\nMiller is exempt under Section 7(1)(g).\nSection 7(1)(g) of FOIA allows a public body to withhold a trade secret or commercial or\nfinancial information only to the extent that disclosure would cause competitive harm to the\nperson or business, and then only insofar as the claim directly applies to the records requested. 5\nILCS 140/7(1)(g) (Emphasis added.) Pursuant to Section 7(1)(g), in order to show substantial\ncompetitive harm resulting from disclosure of information alleged to be exempt from FOIA as\ntrade secrets or commercial or financial information, the agency that is resisting request for\ndisclosure must show by specific factual or evidentiary material that (1) the person or entity\nfrom which information was obtained actually faces competition and (2) substantial harm to the\ncompetitive position would likely result from disclosure of information in the agency’s records.\nMr. Thomas Hardy\nThe University of Illinois\nNovember 17, 2010\nPage 10\nCooper v. Department of the Lottery, 266 Ill.App.3d 1007, 1012 (1° Dist. 1994) (Emphasis\nadded.)\nThe University has supplied this Office with an August 25, 2010 affidavit from Isaacson, Miller\nVice-President Michael Baer. . In his affidavit, Dr. Baer states:\nAs a result of receiving this information, I reviewed the language of FOIA concerning trade\nsecrets, etc and reviewed the Isaacson, Miller documents. I] also consulted with John Fahy, our\nFinance Officer and John Isaacson, the founder and President of the firm. Together we\ndetermined that although the overwhelming majority of the information contained in the Isaacson,\nMiller documents was not subject to the exemption, the “fee for services” figure was proprietary,\nand that disclosure of that amount would allow our competitors to “‘game their bids” in the future,\nand also would allow potential future clients to negotiate against this amount. Both of these\ndynamics would undercut our firm’s ability to maintain a reasonable profit margin and its\ncompetitive advantage. In addition, because the “fee for services” amount is expressed in the\nIsaacson, Miller documents as a percentage of the first year salary, knowing that percentage\nwould allow anyone to simply calculate the “fee for services” amount. Accordingly, that\npercentage also was deemed to be proprietary. Finally, to the extent that break-down of indirect\nexpenses would allow the “fee for services” to be derived, these components were deemed\nproprietary. The total cost of our services was not proprietary, nor was any other aspect\nof the contractual arrangement. Accordingly, the total amount of the engagement was provided\nmultiple times within the contract.\nWhile Isaacson, Miller may face more competition if the requested information were disclosed,\nthere is nothing to indicate in Dr. Baer’s affidavit that substantial harm to the competitive\nposition of Isaacson, Miller would be suffered if the ‘fee for services’ figure was disclosed. The\nfact that it might be used by competitors does not equate to substantial harm. Ultimately, the\n‘fee for services’ was a figure that was incorporated into Isaacson, Miller’s final cost to the\nUniversity. If Section 7(1)(g) intended that a ‘fee for services’ assessed by a private firm to a\npublic body was proprietary, privileged and confidential, as the University and Isaacson, Miller\nsuggest, such a finding would render Section 2.5 superfluous. Therefore, the University is\nobligated to furnish the requesters copies of the unredacted portion of the agreement that\ncontains the ‘fee for services.’\nConclusions\nIn summary, this Office renews our findings that the identity of the unsuccessful applicants and\ntheir applications are exempt from disclosure pursuant to Section 7(1)(c). Additionally, we find\nthat the University has met its burden in demonstrating that disclosure of the name of the current\nemployer of the unsuccessful applicant could constitute a highly unwarranted invasion of\npersonal privacy. Because that applicant has not been selected for the position, there exists no\nlegitimate interest in disclosure of the current employer.\nThe University has failed to meet its burden in demonstrating that disclosure of the regional\nairport, flight number, airline, date of flight and the on-campus travel agency used during the\nsearch for the President would be highly personal or objectionable to the reasonable person and\nMr. Thomas Hardy\nThe University of Illinois\nNovember 17, 2010\nPage 11\nthat a legitimate public interest exists in disclosure of this information. The fact that this\ninformation is ultimately related to the expenditure of public funds under Section 2.5 of FOIA\nsubjects this information to disclosure.\nFinally, the University has not met its burden in demonstrating that the ‘fee services’\nincorporated into the University’s contract with Isaacson, Miller would cause substantial harm to\nIsaacson, Miller under Section 7(1)(g). Additionally, we find that the ‘fee services’ relate to the\nexpenditure of public funds and is subject to disclosure pursuant to Section 2.5 of FOIA.\nTherefore, the University is obligated to disclose the above referenced information to the\nTribune, WDWS-AM, WHMS-FM and the News-Gazette. This correspondence shall serve to\nclose this matter. Should you have any questions, please contact me at (312) 814-5383.\nSincerely, —\nCara Smith\nPublic Access Counselor\nBy:\n/ acetone) G (Cope:\nMatthew C. Rogina J Hy)\nAssistant Public Access Counselor\n8971 9114 RFR FOIA pb ex proper pb ex improper univ\nce: Jodi Cohen .\nHigher Education Reporter, Chicago Tribune\n435 Michigan Avenue\n- Chicago, Iilinois 60611\njscohen@tribune.com\nBrendan Healey\nSenior Counsel, Chicago Tribune\n435 N. Michigan Avenue\nChicago, Illinois 60611-4066\nbhealey@tribune.com\nTraci E. Nally\nSenior Counsel, Champaign News-Gazettel WDWS-AM, WHMS-FM\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nMr. Thomas Hardy\nThe University of Illinois\nNovember 17, 2010\nPage 12\nJulie Wurth, Staff Reporter, Champaign News-Gazetie\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nPatrick Pfingsten\nNews Anchor/Reporter\nWDWS-AM, WHMS-FM\nPatrick@wdws.com","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The University of Illinois tried to deny a FOIA request by claiming it was 'unduly burdensome' because the requester had asked for similar information in the past. The Attorney General ruled that a public body cannot use the 'unduly burdensome' excuse unless they have already provided the records or properly denied the previous request. This means public bodies cannot simply block repeat requests without a valid legal justification.","card_headline":"Presidential search committee records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-12170/","full_text":"This binding opinion is issued pursuant to Section 9.5(f) of the Freedom of Information Act\n(FOIA) (5 ILCS 140/9.5(f), added by Public Act 96-542, effective January 1, 2010).\nThe Office of the Public Access Counselor (Office) has reviewed the above-referenced Request\nfor Review submitted by The News-Gazette on January 31, 2011, the responsive documents\npreviously submitted by the University of Illinois concerning these records, and correspondence\nreceived by both parties since The News-Gazette submitted this Request for Review.\nBackground\nOn January 21, 2011, Julie Wurth, a reporter with The News-Gazette submitted a FOJA request\nto the University seeking records that The News-Gazette, Chicago Tribune, and WDWS-AM and\nWHMS-FM previously requested concerning the University’s recent presidential search.’ In\n' Specifically, on April 27, 2010, Ms. Wurth submitted a FOIA request seeking “copies of all payments or\nreimbursements, and supporting documentation, to members of the University of Hlinois presidential search\ncommittee, Michael Baer and/or staff for Isaacson, Miller. This request includes but is not limited to, vouchers,\nitineraries and receipts, and covers the period from Oct. | to the present.” On May 14, 2010, Jodie Cohen, Staff\nReporter, Chicago Tribune, submitted a FOIA request seeking “[a]l! documentation, from October 1, 2009 to the\npresent, showing expenditure funds related to University of Illinois’ presidential search. This could include, but not\n\nresponse to these previous records requests, the University initially submitted Pre-Authorization\nRequests with this Office on May 11, 2010, May 28, 2010, and June 9, 2010 (2010 PAC 7336,\n7704, 7852) seeking to withhold under Section 7(1)(c) (5 LLCS 140/7(1)(c)) certain responsive\ninformation, including: (1) the names and personal identifiers of job applicants; (2) information\nsuch as the name of an applicant that is currently employed by the University; (3) the address of\nan on-campus travel agency used to arrange airfare; and (4) the airport of departure when it is\nsmall enough to clearly point to a specific candidate. After reviewing the University’s position,\nthis Office issued a determination as to these Pre-Authorization Requests on August 2, 2010\nconcluding, among other things, that the University had not met its initial burden of justifying a\nSection 7(1)(c) redaction of: (1) the name of the university at which any of the applicants is\ncurrently employed; (2) the address of on-campus travel agencies used to arrange travel related\nto the University’s presidential search; and (3) any of the airports of departure related to the\nUniversity’s presidential search.\nAfter receiving our August 2, 2010 determination letter, the University partially denied the FOIA\nrequests, informing the requesters that it disagreed with this Office’s determination and was\nwithholding the following information pursuant to Section 7(1)(c): (1) the name of the university\nat which any of the applicants are currently employed; (2) the address of on-campus travel\nagencies used to arrange travel related to the presidential search; and (3) any of the airports of\ndeparture related to the presidential search. The University also informed the requesters that\npursuant to Section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g)), it was withholding information\nrelating to the calculation of the fees charged to the University by the Boston-based recruitment\nfirm Isaacson, Miller which was hired to assist with the presidential search.\nFollowing the University’s partial denial of their FOIA requests, The News-Gazette and the other\nmedia requesters submitted FOIA Requests for Review to this Office. This Office issued a non-\nbinding determination on November 17, 2010 in 2010 PAC 8971 finding that the University had\nonly met its burden of justifying the redaction of unsuccessful candidates’ identities and current\nemployers. This Office concluded that the University had failed to meet its burden to\ndemonstrate that the disclosure of the regional airport, flight number, date of flight and on-\ncampus travel agency used as part of the presidential search would be highly personal or\nobjectionable to a reasonable person. We further concluded that a legitimate public interest\nexists in disclosure of this information because it is ultimately related to the expenditure of\npublic funds and Section 2.5 of FOIA subjects this information to disclosure. With regard to the\ninformation concerning the fees charged by Isaacson, Miller, we concluded that the University\nhad not met its burden to demonstrate that that disclosure of this information would cause\nsubstantial harm to the search firm as required under Section 7(1)(g). We also found that the fee\nbe limited to, copies of all payments or reimbursements, along with supporting documentation, to members of the\nsearch committee or the search firm. It also could include direct payments from the university to vendors for such\nitems as airfare, entertainment or other expenses.” On May 25, 2010, Patrick Phingsten, News Anchor, WDWS-AM\nand WHMS-FM, submitted a FOIA request seeking “all applicants and/or applications received during recently\nconcluded search for the position of University of Illinois President. (October 1, 2009 to May 20, 2010) [and] [a]ll\nbills, travel expenses, vouchers, itineraries provided to the University by applicants, search committee members, or\nsearch firm Issacson-Miller. (October 1, 2009 to the present) Our request also applies to airfare, hotel or other\n\ninformation relates directly to the expenditure of public funds and is subject to disclosure under\nSection 2.5. Based on these conclusions, this Office directed the University to disclose all non-\nexempt records. The University did not disclose the records in response to this Office’s letter.\nIn the current FOJA request, Ms. Wurth specifically stated: “The University has yet to provide\ninformation it was obligated to disclose pursuant to a Nov. 17 letter to you from the Illinois\nAttorney General. In that letter,... the Office of the Public Access Counselor determined that a\nnumber of documents related to the Presidential search were not exempt documents under the\nIllinois FOIA and that the university was obligated to disclose them. Therefore, we are\nrequesting copies of all of those documents.” On January 28, 2011, the University denied that\nrequest. The University relied on Section 3(g) of FOIA (5 ILCS 140/3(g)) and asserted that the\nrequest is “unduly burdensome” as a “[r]epeated request from the same person for the same\nrecords that are unchanged or identical to records previously provided or properly denied.” On\nJanuary 31, 2011, this Office received The News-Gazette’s Request for Review. On February 9,\n2011, we notified the University that we would require additional information to determine\nwhether the University’s response complied with FOIA. Since that time, we have received a\nwritten response from the University, as well as additional correspondence from The News-\nGazette, all of which we have considered in making a determination regarding this matter.\nSection 1.2 of FOIA (5 ILCS 140/1.2) provides that “[a]ll records in the custody or possession of\na public body are presumed to be open to inspection and copying. Any public body that asserts\nthat a record is exempt from disclosure has the burden of proving by clear and convincing\nevidence that it is exempt.” Therefore, in the context of a Request for Review, the issue is\nwhether the public body has proved by clear and convincing evidence that the information it has\nwithheld is exempt from disclosure under FOIA. As set forth more fully below, we find that the\nUniversity has not met its burden of demonstrating that the records responsive to Ms. Wurth’s\nFOIA Request are exempt under Section 3(g) of F OIA,\nThe University asserts that the requested records are exempt under Section 3(g) of FOIA, which\nprovides:\nRequests calling for all records falling within a category shall be\ncomplied with unless compliance with the request would be unduly\nburdensome for the complying public body and there is no way to\nnarrow the request and the burden on the public body outweighs\nthe public interest in the information. Before invoking this\n? As noted above, in response to The News-Gazette’s and the other media outlets’ initial FOIA requests, the\nUniversity asserted that certain responsive records are exempt from disclosure under Section 7 (1}(c) and Section\n7(1)(g). Our November 17, 2010 determination in 2010 PAC 8971 included an analysis of the records and the\narguments made by the University and the requesters under Section 7(1)(c) and Section 7(1)(g) of FOIA. Although\nthe University does not assert a Section 7 exemption in response to the current FOIA request in either its January 28,\n2011 denial letter or its subsequent correspondence to our Office as part of this Request for Review, we restate as\npart of this binding opinion and explicitly incorporate herein by reference our previous analysis and findings\nconcerning the application of the Section 7 exemptions to the records at issue here. (See attached November 17,\n\nexemption, the public body shall extend to the person making the\nrequest an opportunity to confer with it in an attempt to reduce the\nrequest to manageable proportions. If any body responds to a\ncategorical request by stating that compliance would unduly\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information.\nRepeated requests from the same person for the same records that\nare unchanged or identical to records previously provided or\nproperly denied under this Act shall be deemed unduly\nburdensome under this provision.\nIn its January 28, 2011 denial to Ms. Wurth’s FOIA request, the University stated:\nThis request is identical to elements of the FOIA request received\nby my office on April 27, 2010 (#10-029). Our August 5 response\nto that request was reviewed by the office of the Public Access -\nCounselor, which issued a non-binding determination (PAC\n#8971), dated November 17, 2010, on which you were copied.\nThe PAC advised that its correspondence served to close the\nmatter. Pursuant to section 140(3)(g) of the Illinois Freedom of\nInformation Act, your January 21 request is denied. Section\n140(3)(g) of the Act states that “... Repeated requests from the\nsame person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act shall\nbe deemed unduly burdensome under this provision.”\nIn response to our request for additional information, the University also argues:\nThe prohibition in section 140/3(g) of FOIA against repeated\nrequests from the same person for the same records that are\nunchanged or identical to records previously provided or properly\ndenied is an attempt to protect public bodies and the office of the\nPAC from having to repeatedly address requests that have already\nbeen processed through the FOIA review process. Such repeat\nrequests are an unduly burdensome imposition on the limited\nresources of taxpayer-funded entities and should not be permitted\n\nimproper and unduly burdensome attempt to revive a completed\nreview process. Moreover, by filing a second FOIA request\nseeking to recover the same documents that the PAC has\nconsidered and ruled upon its November 17, 2010, non-binding\ndetermination letter, the News-Gazette in effect is improperly\nasking the PAC to reconsider its decision to issue its November 17\nruling as a non-binding decision. Under FOIA section 140/9.5(f),\n“In responding to any request under this Section 9.5, the Attorney\nGeneral may exercise his or her discretion and choose to resolve a\nrequest for review by mediation or by a means other than the\nissuance of a binding opinion. The decision not to issue a binding\nopinion shall not be reviewable.”... Regardless of what\nadvantages the News-Gazette hopes to obtain from making the\nPAC decision binding, the process it has sought to employ to\nachieve that result plainly contravenes the actions taken by the\nPAC to date, as well as the language of the statute.\nIn reply, The News-Gazette argues:\n{t]he records requested have not been “previously provided.”\nFurthermore, The News-Gazette’s position is that the records have\nnot been “properly denied” when there is a November 17, 2010\nwritten opinion from PAC that the documents requested are not\nexempt from disclosure. Therefore, The News-Gazette is\nrequesting documents that have been improperly denied to it by the\nUniversity.\nAnalysis\nSection 3(g) creates an exemption for “unduly burdensome” FOIA requests, and provides that a\nsecond or subsequent request may be deemed unduly burdensome when it is “from the same\nperson for the same records that are unchanged or identical to records previously provided or\nproperly denied under this Act....” (Emphasis added.) Under the plain language of Section\n3(g), to be deemed unduly burdensome, a request (1) must be from the same person as a previous\nrequest, (2) seek the same records as the previous request, and (3) the records must be unchanged\nor identical to the records which were (4) either provided in response to the previous request or\nproperly denied under the law.\nIn the newspaper’s April 27, 2010 FOJA request, it sought “copies of all payments or\nreimbursements, and supporting documentation, to members of the University of Illinois\npresidential search committee, Michael Baer and/or staff for Isaacson, Miller. This request\nincludes but is not limited to, vouchers, itineraries and receipts, and covers the period from Oct.\n1 to the present.” By its terms, this request focused on payments or reimbursements “to\nmembers of the University of Illinois presidential search committee.” Unlike the FOIA requests\n\nfrom the Chicago Tribune reporter and the WDWS-AM and WHMS-FM news anchor, The News-\nGazette request did not seek all expenditures relating to the presidential search or the-\nexpenditures relating to the applicants. In the current FOIA request, however, The News-Gazette\nis now seeking all of the documents that the University failed to provide in response to all three\nFOIA requests — including the records responsive to the Chicago Tribune and WDWS-AM and\nWHMS-FM requests. As a result of the differences in the three initial FOIA requests from the\nmedia outlets, it appears that the current FOIA is not from the same person as two of the three\nprevious FOIA requests and does not seek the same records as two of those requests.\nEven if The News-Gazette was only seeking the same documents that it previously sought,\nhowever, the University cannot establish that Section 3(g) applies. The University argues that it\npreviously provided records to The News-Gazette in response to the newspaper’s April 27, 2010\nrequest. The only records sought by The News-Gazette in its present FOIA request are those that\nthe University refused to disclose in response to the three April and May, 2010 media FOIA\nrequests. The News-Gazette does not seek to obtain records that the University previously\nprovided. As a result, the remaining issue here is whether the University properly denied the\nprevious FOIA requests for these records.\nIn our November 17, 2010 letter (attached hereto and incorporated herein as part of this binding\nopinion), this Office analyzed the University’s arguments and determined that it had not met its\nburden to demonstrate that the records are exempt under Section 7(1)(c) and Section 7(1)(g).\nNotwithstanding that analysis and direction from this Office, the University refused to disclose\nthe records. The University now argues that despite that determination from this Office, it\nproperly denied the previous request and, therefore, Section 3(g) applies. Given this Office’s\nprevious determination, the University’s reliance on Section 3(g) to withhold these records is\nunfounded. The University’s argument as to Section 3(g) implies that unless a FOIA request has\nbeen determined to have been improperly denied through a binding decision by the Public\nAccess Counselor, the public body can simply assert that a second or subsequent request was\nproperly denied. Section 3(g) provides no support for that argument. On the contrary, given\nFOIJA’s clear language creating a presumption that records are open to the public and placing the\nburden on the public body to establish by clear and convincing evidence that records are exempt,\nthe University bears the burden here of establishing that it properly denied the previous FOIA\nrequests for these records. Because the University cannot establish that it has previously\nproperly denied the records responsive to Ms. Wurth’s January 21, 2011 request, it cannot treat\nthis request as an unduly burdensome repeated request under Section 3(g).\nThe University also argues that our Office lacks authority to issue any further determinations\nwith regard to Ms. Wurth’s January 21, 2011 request, due to our November 17, 2011\ndetermination in 2010 PAC 8971. It cites Section 9.5(f) in support of this argument. This\n\nissuance of a binding opinion. The decision not to issue a binding\nopinion shall not be reviewable. Upon receipt of a binding opinion\nconcluding that a violation of this Act has occurred, the public\nbody shall either take necessary action immediately to comply with\nthe directive of the opinion or shall initiate administrative review\nunder Section 11.5. If the opinion concludes. that no violation of\nthe Act has occurred, the requester may initiate administrative\nreview under Section 11.5.\nThe University attempts to construe this provision so as to deny any effective review of a denial\nof a FOIA request under Section 3(g). It is important to note that The News-Gazette did not\nmerely seek reconsideration or enforcement of this Office’s November 17, 2010 determination\nletter. Rather, The News-Gazette sent a new FOIA request to the University seeking the\ndocuments previously withheld in response to FOIA requests from the newspaper and two other\nmedia outlets. Once the University failed or refused to disclose these records, The News-Gazette\nfiled a new Request for Review under Section 9.5(c). Under these circumstances, The News-\nGazette exercised its statutory right to seek this Office’s review of the University’s Section 3(g)\ndenial. This Office, therefore, has jurisdiction to issue a binding opinion under Section 9.5(f).\nFindings and Conclusions\nAfter full review and giving due consideration to the positions of the parties, the Attorney\nGeneral finds that:\n1) The News-Gazette’s Request for Review was timely filed and otherwise complies with the\nrequirements of Section 9.5(a) of the Freedom of Information Act (5 ILCS 140/9.5(a)).\nTherefore, the Attorney General may properly issue a binding opinion with respect to the\ndisclosure of the requested records.\n2) The University of Illinois possesses records responsive to The News-Gazette’s request but\nhas asserted that the request is “unduly burdensome” and the records are exempt from\ndisclosure under Section 3(g) of the Freedom of Information Act because it is a “[r]epeated\nrequest[] from the same person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act....”\n3) The University of Illinois has failed to sustain its burden of demonstrating that the request in\nquestion constitutes a “[rJepeated request[] from the same person for the same records that\nare unchanged or identical to records previously provided or properly denied under this Act”\nunder Section 3(g).\n4) Accordingly, these records of the University of Illinois are not exempt from disclosure under\n\nTherefore, it is the opinion of the Attorney General that the University of Illinois has violated\nFOIA by improperly denying The News-Gazette’s January 21, 2011 request for records. The\nUniversity is required to provide copies of the requested records to Ms. Wurth pursuant to her\nJanuary 21, 2011 request. Under Section 9.5(f) of FOIA, the University must either immediately\ncomply with this binding opinion or initiate administrative review under Section 11.5 of FOIA.\nThis opinion shall be considered a final decision of an administrative agency for the purposes of\nadministrative review under the Administrative Review Law. 735 ILCS 4/3-101 et seg. An\naggrieved party may obtain judicial review of the decision by filing a complaint for\nadministrative review in the Circuit Court of Cook or Sangamon County within 35 days of the\ndate of the decision naming the Attorney General of Illinois and Ms. Julie Wurth as defendants.\nSee 5 ILCS 140/11.5.\nSincerely,\nLISA MADIGAN\nATTORNEY GENERAL\nry\nBy:\nMichael J. Luke\nCounsel to the Attorney General\nce: Ms. Julie Wurth, Staff Reporter, The News-Gazette\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nMs. Traci E. Nally\nSenior Counsel, The News-Gazette\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nATTACHMENT\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\nNovember 17, 2010\n- Lisa Madigan\nATTORNEY GENERAL\nMr. Thomas Hardy\nExecutive Director, University Relations\nUniversity of IllinoisS06 Wright Street\nUrbana, Illinois 61801\nRe: FOIA Request for Review — 2010 PAC 8971, 9114\nDear Mr. Hardy:\nThe Office of the Public Access Counselor (Office) has reviewed the Request for Reviews\nsubmitted by the Champaign News-Gazette, Chicago Tribune, and WDWS-AM and WHMS-FM\nand the responsive documents submitted by the University of Illinois (University) on August 31,\n2010.\nFindings of Fact\nOn April 27, 2010, Julie Wurth, Staff Reporter, Champaign News-Gazette (News Gazette)\nsubmitted a Freedom of Information Act (FOIA) request seeking the following information:\n«copies of all payments or reimbursements, and supporting documentation, to members of the\nUniversity of Illinois presidential search committee, Michael Baer and/or staff for Isaacson,\nMiller. This request includes but is not limited to, vouchers, itineraries and receipts, and covers\nthe period from Oct. | to the present.”\nOn May 14, 2010, Jodie Cohen, Staff Reporter, Chicago Tribune (Tribune), submitted a FOLIA\nrequest seeking the following information:\n“All documentation, from October 1, 2009 to the present, showing expenditure funds related to\nUniversity of Illinois’ presidential search. This could include, but not be limited to, copies of all\npayments or reimbursements, along with supporting documentation, to members of the search\ncommittee or the search firm. It also could include direct payments from the university to\nvendors for such items as airfare, entertainment or other expenses.”\n500 \n\nOn May 25, 2010, Patrick Phingsten, News Anchor, WDWS-AM and WHMS-FM, submitted a\nFOIA request to the University and requested the following information:,\n1. All applicants and/or applications received during recently the concluded search for\nthe position of University of Illinois President (October 1, 2009 to May 20, 2010);\nand\n2. All bills, travel expenses, vouchers, itineraries provided to the University by\napplicants, search committee members, or search firm Issacson-Miller (October 1,\n2009 to the present). The request also applies to airfare, hotel or other travel-related\nexpenses.\nBecause all three FOIA requests seek similar sets of records, we are addressing them as one\nconsolidated Request for Review herein.’\nThe University submitted a Pre-Authorization Request with this Office on June 9, 2010 and\nasserted that certain information is exempt from disclosure pursuant to Section 7(A\\(ec) (ILCS\n140/7(1)(c)), which exempts from inspection or copying “[p]ersonal information contained\nwithin public records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless disclosure is consented to in writing by the individual subjects of the\ninformation.” id. The exemption defines “[u]nwarranted invasion of personal privacy” as “the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject’s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.” Jd. Specifically, the University stated the following information was exempt\npursuant to Section 7(1)(c):\n1, Names and personal identifiers of job applicants;\n2. Information such as the name of an applicant that is currently employed by the\nUniversity, the address of an on-campus travel agency that used to arrange airfare,\nand the airport of departure when it is small enough to clearly point to a specific\ncandidate; and\n3. The names of private citizens who work for trustees in a non-University capacity.\nThis Office responded to the University’s Pre-Authorization Request on August 2, 2010,\ngranting in part and denying in part the University’s request to withhold information pursuant to\nSection 7(1)(c). In the letter, this Office concluded the following:\n* The University has met its burden to justify redacting the names and applications\nof all non-hired applicants for the position of University president.\ne The University has not met its burden to justify redacting the name and\napplication of the selected applicant, Michael J. Hogan.\n' The University also seeks to redact the name of a student contained in a document pursuant to the Family\nEducational Rights and Privacy Act, 20 U.S.C. § 1232g; 34 CFR Part 99. In October 28, 2010 conversations with\nboth Brendan Healey and Traci Nally, both parties have confirmed that the they are not seeking this information.\n\n° Home telephone numbers, personal cell phone numbers and home addresses of\napplicants do not properly fall within the Section 7(1)(c) exemption, and we\ndecline to make a determination as to whether the University may redact this\ninformation pursuant to Section 7(1)(b). Work telephone numbers and addresses\nof the non-hired applicants, however, do fal] within the Section 7(1)(c) exemption\nand the University has met its burden to justify redacting this information\npursuant to this Section of FOIA.\ne The University has not met its burden to justify redacting (1) the name of the\nUniversity at which any of the applicants is currently employed; (2) the address of\non-campus travel agencies used to arrange airfare related to: the University’s\npresidential search; or (3) any of the airports of departure related to the\nUniversity’s presidential search and (4) the names of private citizens who work\nfor trustees in a non-University capacity.\nIn the Pre-Authorization letter, this Office declined to address any matters relating to Section\n7(1)(g) (5 ILCS 140/7(1)(g)) which exempts from inspection and copying “Trade secrets and\ncommercial or financial information obtained from a person or business where the trade secrets\nor commercial or financial information are furnished under a claim that they are proprietary,\nprivileged or confidential, and that disclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or business, and only insofar as the\nclaim directly applies to the records requested...”\nOn August 5, 2010, the Tribune, News-Gazette, WDWS-AM, and WHMS-FM received a partial\ndenial letter from the University indicating that it disagreed with this Office’s findings in 2010\nPAC 7336, 7704 and 7852 and asserting that the University had met its burden pursuant to\nSection 7(1)(c) with respect to withholding: (1) the name of the University at which any of the\napplicants are currently employed; (2) the address of on-campus travel agencies used to arrange\nairfare related to the University’s presidential search; and (3) any of the airports of departure\nrelated to the University’s presidential search.\nThe University also asserted that information relating to the University’s procurement of the\nBoston-based recruitment firm Isaacson, Miller to assist the University with the Presidential\nsearch is exempt from disclosure pursuant to Section 7(1)(g).\nOn August 5, 2010, the University provided the Tribune, News-Gazette, WDWS-AM, and\nWHMS-FM with approximately 1,000 pages of documents from October 2009 through July 2010\nthat related to the University’s search for the new President. Included in these documents were\nthe names of private citizens who worked for the trustees in a non-University capacity. On\nOctober 8, 2010, the University sent a letter to WDWS-AM indicating that it would be providing\n\nThis Office received a Request for Review from the News-Gazette, WDWS-AM and WHMS-FM\non August 9, 2010 and from the Tribune on August 16, 2010. This Office initiated further\nreview with regard to the News-Gazette, WDWS-AM and WHMS-FM on August 18, 2010 and\nwith regard to the Tribune on August 19, 2010.”\nOn August 31, 2010, the University responded to our further inquiry letter and renewed its initial\nargument as to the disclosure of the information it previously denied pursuant to Section 7(1)(c)\nand addressed the Isaacson, Miller documents pursuant to Section 7(1)(g). Additionally, the\nUniversity supplemented its response with 11 affidavits from employees from the University and\nother academic institutions,’ four affidavits from individuals with regard to the information\nrelating to Isaacson, Miller,* media clippings,” a copy of No. 2010 PAC 6805, a previously-\nissued Pre-Authorization letter from this Office and a copy of the further review letter for No.\n2010 PAC 7336.\nOn September 20, 2010 and September 28, 2010, this Office sent a 21-day extension letter to the\nUniversity pursuant to Section 9.5(f). On September 29, 2010, Traci Nally, Senior Counsel,\nNews-Gazette, WDWS-AM and WHMS-FM responded to the University’s letter. On October 8,\n2010, Don Craven, on behalf of the Tribune, submitted a response letter to the University’s\nletter.\nDeterminations\nSection 3(a) of FOIA (5 ILCS 140/3(a)) provides that “[e]ach public body shall make available\nto any person for inspection or copying all public records, except as otherwise provided in\nSection 7 of this Act.” | Under Section 1.2 of FOJA (5 ILCS 140/1.B, “fajll records in the\ncustody of a public body are presumed to be open to inspection and copying.” This section\nfurther states that “[a]ny public body that asserts that a record is exempt from disclosure has the\nburden of proving by clear and convincing evidence that it is exempt.” (Emphasis added.)\n3 With regard to information relating to the applicants, the University provided this Office with affidavits from the\nfollowing individuals: Alvin Bowman, President, Illinois State University; Al Goldfarb, President, Western Illinois\nUniversity; Sharon Hahs, President, Northeastern [linois University; Michael J. Hogan, President, University of\nIllinois; Stanley Ikenberry, Former President, University of Illinois; Elaine Maimon, President, Governors State\nUniversity; William Perry, President, Eastern Illinois University; John G. Peters, President, Northern Illinois\nUniversity; Dr. Glenn Poshard, President, Southern Illinois University; Michele M. Thompson, Secretary, Board of\nTrustees, University of Illinois, Wayne Watson, President, Chicago State University. In addition to his affidavit,\nformer President Stanley Ikenberry submitted the following five media clippings: “U of Maryland Narrows Field for\nPresident to 5,” Washington Post, February 15, 1978; “4 Recommended for Presidency of Maryland University,”\nFebruary 18, 1978, “U- MD Offers Presidency to 5\" on List; 4 Declined, Washington Post, March 22, 1978; “U-\nMd. Presidency Offered to Head of N.Y. University,” unknown date.\n4 With regard to information relating to the search firms, the University provided this Office with affidavits from the\nfollowing individuals: Michael Baer, Isaacson, Miller, Jerry H. Baker, Baker and Associates; Kenneth Kring,\nKort/Ferry International; Richard D. Legon, President, Association of Governing Boards of Universites and\nColleges.\n5 Articles from the August 8, 2010 edition of The Chronicle of Higher Education include: “Too Much Sunshine Can\nComplicate Presidential Searches,” “How a Public Search Cost a Provost Her Job,” and “A Presidential Search at\n\nInformation relating to the Unsuccessful Applicants\nIn its response letter, the University asserts that disclosure of: (1) the name of the current\nemployer at which any of the unsuccessful applicants are currently employed; (2) the\naddress of on-campus travel agencies used to arrange airfare related to the University’s\nPresidential search; or (3) any of the airports of departure related to the University’s\npresidential search could lead to the disclosure of the identities of the unsuccessful\napplicants.\nWith respect to the disclosure of the identities of unsuccessful applicants for the\nPresidency position, this Office made the following determination in 2010 PAC 6805, a\nPre-Authorization Request involving a FOIA request submitted to the University by\nWLS-TV for the same information. In that letter, we noted the following:\nApplications for employment generally contain information that is personal in nature and\nthe release of which would be objectionable to the reasonable person. Further, in many\ncases, the fact that an individual is seeking new employment for a position is information\nthat a reasonable person would view as highly personal and the release of that\ninformation is likely to be viewed as objectionable by most individuals. Publication of an\nindividual’s application for a position can negatively impact that individual’s current\nemployment and the release of personal information about applicants may also negatively\nimpact a public body’s ability to attract qualified applicants for open positions.\nAccordingly, as a result of our review, we have determined that the University may\nproperly decline to disclose under Section 7(1)(c) the names of applicants for the position _\nof University President and the applications submitted by those individuals.\nThis Office renewed these findings in No. 2010 PAC 7336, 7704 and 7852 in support of\nour determination that disclosure of the names of the unsuccessful applicants would\namount to an invasion of privacy pursuant to Section 7(1)(c). The University relies on\nthe affidavits, media clippings and previous determination letters from this Office to\nsupport its argument that incidental information related to the University’s search for the\nPresident is also exempt from disclosure pursuant to Section 7(1)(c).\nEach affidavit submitted by officials from other academic institutions underlies the\nUniversity’s assertion that disclosure of identifying information such as the name and\n\nJohn G. Peters, President, Northern Illinois University, stated the following in his August\n26, 2010 Affidavit:\nThe harm caused by directly releasing an applicant’s name can also be caused by\nrequiring a public body to release information, which, in context, would reveal the\nidentities of applicants. For example such “identifying information” may consist of:\ne An individual’s title and current employer,\n© The name ofa very small regional airport near a single college or university\n© The name ofa larger airport combined with the exact travel mileage incurred and\nreimbursed, thereby identifying the college and university.\nDisclosure of this information will inevitably reveal the precise identities of applicants,\nwhich is just as harmful as directly revealing those identities. Most Land-Grant\nuniversities are located in non-metropolitan areas. The pool of high level candidates\nfrom the group is quite smal] and well known in the academic community. A candidate\nflying out of the Lincoln, Nebraska airport, for instance, would immediately be identified.\nWilliam L. Perry, President, Eastern Illinois University, stated the following in his\nAugust 25, 2010 Affidavit:\nThe harm caused by directly releasing an applicant’s name can also be caused by\nrequiring a public body to release information which, in context, would reveal the\nidentities of applicants.\nFinally, Stanley Ikenberry, former President, University of Illinois, stated the following\n;\nin his August 20, 2010 Affidavit:\nThe harm caused by directly releasing an applicant’s name can also be caused by\nrequiring a public body to release information, which in context, would reveal the\nidentities of the applicants...Disclosure of this information would inevitably reveal the\nprecise identities of applicants, which ts just as harmful as directly revealing those\nidentities.\nAs we noted in No. 2010 PAC 6805 and 2010 PAC 7336, 7704 and 7852, disclosure of\nthe identities of unsuccessful applicants could adversely impact that applicant’s position\nwith their current employer. This finding, however, does not extend to all records\nrelating to a public body’s search for a candidate. Specifically, there exists a legitimate\npublic interest in the scope of the University’s search for a new President. Moreover,\nseveral of these records relate to the expenditure of public funds under Section 2.5 of\nFOIA that provides that “[aJll records relating to the obligation, receipt, and use of public\n\nThe Names of the Current Employers of Unsuccessful Applicants\nThis Office renews the findings in 2010 PAC 6805, 2010 PAC 7336, 7704 and 7852 in support\nof our conclusion that the disclosure of the identity of the unsuccessful applicants and their\napplications would constitute a highly unwarranted invasion of personal privacy and those\ndocuments are therefore exempt from disclosure under Section 7(1){c).\nWith regard to the disclosure of the current employer of the unsuccessful applicant, we now find\nthat the University has met its burden in demonstrating that the name of the current employer is\nexempt from disclosure pursuant to Section 7(1)(c).\nIn the University’s May 11, 2010 Pre-Authorization Request to this Office, the University did\nnot distinguish between the disclosure of the name of the applicant, the application and the\napplicant’s current employer.\nWhile this Office previously ruled on this matter in 2010 PAC 6805 as to the identities of the\napplicants and their applications, this Office had not made a finding specifically directed to the\ndisclosure of the name of the current employer of an unsuccessful applicant. In another context,\nthis Office has found that disclosure of an employer, absent certain circumstances, 1s not\nconsidered to be a matter of personal privacy. In 2010 PAC 7440, we noted the following with\nrespect to the disclosure of an arrestee’s employment:\nSimply because information can be characterized as personal does not automatically\nmake it exempt under Section 7(1)(c). The high standard under this subsection requires\nthat the information seeking to remain exempt is highly sensitive and objectionable to the\nreasonable person. In this instance, the alleged offender is likely making his place of\nemployment known to his coworkers, friends, family and possibly other members of the\npublic. The Department has not furnished us with any unique information about the\nalleged offender’s employment to think that the disclosure would be highly sensitive or\nobjectionable to the reasonable person.\nSimilarly, the University provided no evidence in support of its Pre-Authorization Request with\nregard to how disclosure of the name of the current employer in this context constitutes an\nunwarranted invasion of personal privacy. Instead, this argument was subsumed by the\nUniversity’s argument against disclosure of the identities of the applicants and the applications.\nTherefore, we initially concluded that the University did not meet its burden in demonstrating\nhow disclosure of the identity of the current employer by itself is considered highly personal or\nobjectionable to the reasonable person.\nIn the August 31 letter, the University states that “only by undertaking a more fulsome fact-\nspecific-analysis here will the PAC reach a decision that protects the privacy interests of private\n\nBased on that letter and the University’s supplemental documents, which include the affidavits\nand media clippings, we have determined that the University has met its burden that disclosure of\nthe unsuccessful applicant’s current employer could constitute a highly unwarranted invasion of\npersonal privacy. The letter states that the final candidates for the President of the University\nwere highly qualified and experienced individuals who held senior administrative positions at\nother colleges and universities, such as President and provost. The University also states that\ndisclosure of the current employer could create a negative impact on that applicant’s current\nemployer. Because of the type of applicants that were considered for this position and the fact\nthat they were not hired, there exists no legitimate public interest in disclosure of the employers\nof the unsuccessful applicants. And unlike the finding we made in 2010 PAC 7440, the\nUniversity has supplied us with specific information about how the disclosure of the\nunsuccessful applicant’s current employment would be highly sensitive or objectionable to the\nreasonable person. Therefore, the University may withhold the current employers of the\nunsuccessful applicants.\nRegional Airports, the names of the airlines, the date of flight and the flight number\nThe requesters also seek the names of the airlines, departing airport, date of flight and flight\nnumber used by the unsuccessful applicants. The University seeks to withhold this information,\nspecifically the identity of the regional airport that is within close proximity to only one\nuniversity because, it is argued that such information points to a small geographical area and\nwould almost lead to the identification of the university and the candidate.\nAs explained by President Peters in his Affidavit, several “Land Grant”’ universities are of\nsignificant distance from large metropolitan areas and the disclosure of a small airport in\nLincoln, Nebraska, for example, could reveal the identity of a particular candidate. Using\nPresident Peters’ example, Lincoln, Nebraska is home to the University of Nebraska. President\nPeters argues that if an applicant boarded a flight from Lincoln, Nebraska to Chicago O’Hare,\nthat applicant was likely employed by the University of Nebraska.\nThe first part of the analysis under Section 7(1)(c) is to determine if such information can be\nconsidered highly personal or objectionable to the reasonable person. Unlike the identity of the\ncurrent employer of an unsuccessful applicant, an airport used by an applicant for a job interview\ncannot be characterized as personal in nature.\nAdditionally, a public body cannot characterize non-personal information as personal simply\nbecause the possibility that a diligent reporter could effectively piece together information\n5 in an October 22, 2010 conversation with this a representative of this Office, University Relations Director\nThomas Hardy acknowledged that the departing locations from airports within large metropolitan areas such as New\nYork City, was disclosed to the requesters.\n? According to Webster’s Dictionary, a Land-Grant university (also called land-grant colleges or land grant\ninstitutions) are institutions of higher education in the United States designated by each state to receive the benefits\n\nobtained through FOIA and from sources outside of FOIA in order to draw a reasoned inference\nbased on available facts.\nTo the extent that disclosure could constitute a highly unwarranted invasion of personal privacy,\nthis Office concludes there exists a legitimate public interest in the locations of the regional\nairport. If the University conducted a nationwide search for a new President, then there is a\nmaterial difference in airfare from applicants who, for example, departed from College Station,\nTexas, Sioux Falls, South Dakota, Madison, Wisconsin or Athens, Georgia. There is also a\nmaterial difference in price based on the airline used by the University. A flight on a commercial\ncarrier is likely different in price than a flight on a smaller regional airline. Airfares are subject\nto price fluctuation on a variety of factors such as airline, destination, seat location, time, date\nand route. Therefore, we find that the airline, date of flight, flight number and departing airport\nare records that are within the scope of Section 2.5 and must be disclosed to the requesters.\nTravel Agencies\nNext, the requesters seek the names of the on-campus travel agency used to arrange the travel\nneed of the applicants.\nUnder the Section 2.5 analysis, the University’s utilization of an on-campus travel agency for the\npurposes of planning a flight for a potential applicant falls squarely within records relating to the\nobligation or expenditure of public funds. The University has not met its burden by\ndemonstrating through clear and convincing evidence that disclosure of the on-campus travel\nagency could be linked to the identity of the unsuccessful applicant or that such information\nremains highly personal or objectionable to the reasonable person.\nThe University has not met its burden with regard to the name of the on-campus travel agency\nthat arranged the unsuccessful applicant’s travel. Therefore, the names of the travel agencies\nmust be released.\nInformation Relating to the University’s Search Firm\nThe University explains that a portion of documents submitted to the University by Isaacson,\nMiller is exempt under Section 7(1)(g).\nSection 7(1)(g) of FOIA allows a public body to withhold a trade secret or commercial or\nfinancial information only to the extent that disclosure would cause competitive harm to the\nperson or business, and then only insofar as the claim directly applies to the records requested. 5\nILCS 140/7(1)(g) (Emphasis added.) Pursuant to Section 7(1)(g), in order to show substantial\ncompetitive harm resulting from disclosure of information alleged to be exempt from FOIA as\ntrade secrets or commercial or financial information, the agency that is resisting request for\ndisclosure must show by specific factual or evidentiary material that (1) the person or entity\nfrom which information was obtained actually faces competition and (2) substantial harm to the\ncompetitive position would likely result from disclosure of information in the agency’s records.\n\nCooper v. Department of the Lottery, 266 Ill.App.3d 1007, 1012 (1° Dist. 1994) (Emphasis\nadded.)\nThe University has supplied this Office with an August 25, 2010 affidavit from Isaacson, Miller\nVice-President Michael Baer.. In his affidavit, Dr. Baer states:\nAs a result of receiving this information, I reviewed the language of FOIA concerning trade\nsecrets, etc and reviewed the Isaacson, Miller documents. I] also consulted with John Fahy, our\nFinance Officer and John Isaacson, the founder and President of the firm. Together we\ndetermined that although the overwhelming majority of the information contained in the Isaacson,\nMiller documents was not subject to the exemption, the “fee for services” figure was proprietary,\nand that disclosure of that amount would allow our competitors to “‘game their bids” in the future,\nand also would allow potential future clients to negotiate against this amount. Both of these\ndynamics would undercut our firm’s ability to maintain a reasonable profit margin and its\ncompetitive advantage. In addition, because the “fee for services” amount is expressed in the\nIsaacson, Miller documents as a percentage of the first year salary, knowing that percentage\nwould allow anyone to simply calculate the “fee for services” amount. Accordingly, that\npercentage also was deemed to be proprietary. Finally, to the extent that break-down of indirect\nexpenses would allow the “fee for services” to be derived, these components were deemed\nproprietary. The total cost of our services was not proprietary, nor was any other aspect\nof the contractual arrangement. Accordingly, the total amount of the engagement was provided\nmultiple times within the contract.\nWhile Isaacson, Miller may face more competition if the requested information were disclosed,\nthere is nothing to indicate in Dr. Baer’s affidavit that substantial harm to the competitive\nposition of Isaacson, Miller would be suffered if the ‘fee for services’ figure was disclosed. The\nfact that it might be used by competitors does not equate to substantial harm. Ultimately, the\n‘fee for services’ was a figure that was incorporated into Isaacson, Miller’s final cost to the\nUniversity. If Section 7(1)(g) intended that a ‘fee for services’ assessed by a private firm to a\npublic body was proprietary, privileged and confidential, as the University and Isaacson, Miller\nsuggest, such a finding would render Section 2.5 superfluous. Therefore, the University is\nobligated to furnish the requesters copies of the unredacted portion of the agreement that\ncontains the ‘fee for services.’\nConclusions\nIn summary, this Office renews our findings that the identity of the unsuccessful applicants and\ntheir applications are exempt from disclosure pursuant to Section 7(1)(c). Additionally, we find\nthat the University has met its burden in demonstrating that disclosure of the name of the current\nemployer of the unsuccessful applicant could constitute a highly unwarranted invasion of\npersonal privacy. Because that applicant has not been selected for the position, there exists no\nlegitimate interest in disclosure of the current employer.\nThe University has failed to meet its burden in demonstrating that disclosure of the regional\nairport, flight number, airline, date of flight and the on-campus travel agency used during the\nsearch for the President would be highly personal or objectionable to the reasonable person and\n\nthat a legitimate public interest exists in disclosure of this information. The fact that this\ninformation is ultimately related to the expenditure of public funds under Section 2.5 of FOIA\nsubjects this information to disclosure.\nFinally, the University has not met its burden in demonstrating that the ‘fee services’\nincorporated into the University’s contract with Isaacson, Miller would cause substantial harm to\nIsaacson, Miller under Section 7(1)(g). Additionally, we find that the ‘fee services’ relate to the\nexpenditure of public funds and is subject to disclosure pursuant to Section 2.5 of FOIA.\nTherefore, the University is obligated to disclose the above referenced information to the\nTribune, WDWS-AM, WHMS-FM and the News-Gazette. This correspondence shall serve to\nclose this matter. Should you have any questions, please contact me at (312) 814-5383.\nSincerely, —\nCara Smith\nPublic Access Counselor\nBy:\n/ acetone) G (Cope:\nMatthew C. Rogina J Hy)\nAssistant Public Access Counselor\n8971 9114 RFR FOIA pb ex proper pb ex improper univ\nce: Jodi Cohen.\nHigher Education Reporter, Chicago Tribune\n435 Michigan Avenue\n- Chicago, Iilinois 60611\njscohen@tribune.com\nBrendan Healey\nSenior Counsel, Chicago Tribune\n435 N. Michigan Avenue\nChicago, Illinois 60611-4066\nbhealey@tribune.com\nTraci E. Nally\n\nJulie Wurth, Staff Reporter, Champaign News-Gazetie\n15 Main Street\nP.O. Box 677\nChampaign, Illinois 61824\nPatrick Pfingsten\nNews Anchor/Reporter\nWDWS-AM, WHMS-FM\nPatrick@wdws.com"}
{"id":228,"orig_master_id":19202,"dup_master_id":19430,"dup_sha256":"922de4d959cf19fffae2efdd60f0762ef5d3982f573bc62b4c771663330673b5","source":"PAC","sub_agency":"ocr_searchable","doc_type":"Public Access Opinion","binding":1,"year":null,"date_issued":"2011-08-16","case_number":"2011 PAC 17006","request_numbers":null,"title":"Names of State University Students and Graduation Information Are Not Exempt from Disclosure under Sections 7(1)(a), 7(1)(6), or 7(1)(C","filename":"PUBLIC ACCESS REVIEW 12-003 (Request for Review - 2011 PAC 17006).pdf","rel_path":"PAC\\ocr_searchable\\PUBLIC ACCESS REVIEW 12-003 (Request for Review - 2011 PAC 17006).pdf","word_count":2365,"summary":"This document is a Public Access Opinion issued by the Illinois Attorney General regarding a Freedom of Information Act request concerning the disclosure of names and graduation information of students at Chicago State University.","plain_summary":"The requester, a newspaper reporter, sought the names of an incoming freshman class and of students who graduated or had not yet graduated years later, and a university withheld the names as protected by federal student-privacy law and as personal information. The Public Access Counselor held that the requested directory-type information was not shielded by federal privacy law, did not qualify as private or personal information under FOIA, and that the university could not treat the reporter's request differently because of past unfavorable coverage. The university was directed to furnish the requested student names and related information.","holding":"The University has violated FOIA and must provide the withheld information to the requester.","legal_question":"Whether Chicago State University properly withheld names of students and information concerning students’ graduations under the cited exemptions.","disposition":"violation_found","primary_statute":"5 ILCS 140/9, 5 ILCS 140/7(1), 5 ILCS 140/2, 5 ILCS 140/3(a), 5 ILCS 140/1, 5 ILCS 140/3, 5 ILCS 140/11, 735 ILCS 5/3","foia_related":0,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(a)","7(1)(b)"],"public_body":"Chicago State University","requesting_party":"Healey and Mr. Cage","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"student records","subject_description":"The dispute concerned a newspaper's request for the names of first-time freshmen and information about whether specific students had graduated from Chicago State University.","ocr_status":"ok","ocr_quality":90.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/2012-Binding-PAC-Opinions/12-003.pdf","sha256":"1bcac153de0bc91f39ad5d783abb01771871e190fa4d56d774a664023f1f6b38","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":["student records","graduation rates","FERPA","university FOIA","personal information exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL STATE OF ILLINOIS Lisa Madigan ATTORNEY GENERAL January 18, 2012 Public Access Opinion 12-003 (Request for Review 2011 PAC 17006) FREEDOM OF INFORMATION ACT: Names of State University Students and Graduation Information Are Not Exempt from Disclosure under Sections 7(1)(a), 7(1)(6), or 7(1)(C) Mr. Brendan J. Healey Senior Counsel, Media and Promotions Tribune Company 435 North Michigan Avenue Chicago, Illinois 60611 Mr. Patrick B. Cage General Counsel Chicago State University 9501 S. King Dr. / ADM 318 Chicago, Illinois 60628 Dear Mr. Healey and Mr. Cage: This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9,5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). The question presented in this Request for Review is whether Chicago State University properly withheld names of students and information concerning students’ graduations pursuant to any of the three exemptions cited by the University. For the reasons set forth below, we conclude that the University has violated FOIA and must provide the withheld information to the requester. 500 South Second Street, Springfield, [Illinois 62706 » (217) 782-1090 * TTY: (217) 785 -2771 » Fax: (217) 782-7046 100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806 1001 East Main, Carbondale, Hlinois 62901 * (618) 529-6400 » TTY: (618) 529-6403 » Fax: (618) 529-6416 Mr. Brendan J. Healy Mr. Patrick B. Cage January 18, 2012 Page 2 BACKGROUND On August 16, 2011, Ms. Jodi S. Cohen, a reporter for the Chicago Tribune (Tribune) submitted a FOIA request to Chicago State University seeking: e The names of all 405 first-time, full-time Chicago State University freshmen who began in Fall 2005 e The names of all undergraduates who were included in the May ' 2011 graduation ceremony, and the degrees they received e The names of any students included in the Fall 2005 freshman cohort who graduated prior to May 201 1.! On August 23, 2011, the University submitted to the Public Access Counselor notice of its intent to deny? Ms. Cohen's request for students’ names pursuant to section 7(1)(c) of FOIA.’ 5 ILCS 140/7(1)(c) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452 effective August 19, 2011. This notice to the Public Access Counselor included the following explanation of the University's intention to deny the names of students as personal information: Based on the number of hostile and negative articles that Ms. Cohen has written about Chicago State University, its students, faculty and administrators, the University asserts that it would be an unwarranted invasion of personal privacy to release any of the names of individuals requested by the Tribune. * * * A reasonable person would find the use of his or her name published in association with one of the Tribune's negative articles highly objectionable. ; ‘Letter from Jodi S. Cohen, Chicago Tribune, to Patrick B. Cage, FOIA Officer, Chicago State University (August 16, 2011). *Prior to amendment by Public Act 97-579, effective August 26, 2011, section 9.5(b) of FOIA (5 ILCS 140/9.5(b) (West 2010)) required a public body to provide written notice to the requester and to the Public Access Counselor of its intent to assert section 7(1)(c) or 7(1)(f) of FOIA (5 ILCS 140/7(1)(c), (f) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452 effective August 19, 2011) to deny a request in whole or in part. *Letter from Patrick B. Cage, General Counsel, Chicago State University, to Sarah Pratt, Acting Public Access Counselor, Office of the Illinois Attorney General (August 23, 2011); see 2011 PAC 16489, closed September 7, 2011. Mr. Brendan J. Healy Mr. Patrick B. Cage January 18, 2012 Page 3 The University sent copies of articles concerning the University by the Tribune with its August 23, 2011, letter to the Public Access Counselor. On August 26, 2011, Public Act 97-579 eliminated the requirement that public bodies seek approval from the Public Access Counselor prior to asserting section 7(1)(c) of FOIA to deny access to public information. Accordingly, on September 7, 2011, we directed the University to promptly respond to the 7r ibune’' s August 16, 2011, FOIA request, and to assert any exemptions that it deemed applicable.’ On September 9, 2011, the University responded to the Tribune's August 16, 2011, FOIA request by providing a one page document that it asserted contained requested information about the 2005 freshman class. The document contains a list of majors, and columns labeled Bachelor of Arts, Bachelor of Science, and Bachelor of Science in Education, along with numbers in each category. The University also asserted that it was partially denying the request pursuant to sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA. 5 ILCS 140/7(1)¢a), (b), (c) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 201197-452 effective August 19, 2011.° Section 7(1)(a) of FOIA authorizes public bodies to withhold \"{ijnformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" Section 7(1)(b) of FOIA permits public bodies to redact \"private information\" as defined in section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2010)) from public records. Section 7(1)(c) of FOIA allows public bodies to redact. \"personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" \"Unwarranted invasion of personal privacy” is defined in the Act to mean \"the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(1)(c) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 201197-452 effective August 19, 2011. Specifically, the University's September 9, 2011, response asserts that the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. §1232g) and regulations enacted pursuant to FERPA (34 C.F.R. Part 99 (2011)) prohibit it from releasing the requested information because the two categories of information requested could be used to determine who \"failed to make satisfactory academic progress.\" This information, the University stated, is not \"directory information\" and, therefore, FERPA prohibits its release. The University's response did not specify the particular information withheld under each exemption (although it is apparent ‘Letter from Sarah L. Pratt, Acting Public Access Counselor, Public Access Bureau, to Patrick B. Cage, General Counsel, Chicago State University (September 7, 2011). *Letter from Patrick B. Cage, General Counsel. Chicago State University, to Jodi S. Cohen, Higher Education Reporter, Chicago Tribune (September 9, 2011). Mr. Brendan J. Healy Mr. Patrick B. Cage January 18, 2012 Page 4 that names of students for each of the three categories requested is the information being denied by the University) nor explain its basis for asserting sections 7(1)(b) and 7(1)(c). We note, however, that the University did not re-assert its position that student names were exempt under 7(1)(c) because of prior media coverage. Finally, the University asserted that fourteen members of the 2005 freshman cohort had officially requested that the University exclude their names from directory information.° On October 4, 2011, the Tribune filed a Request for Review of the University's September 9, 2011, partial denial of Ms, Cohen's FOIA request.’ On October 7, 2011, we forwarded a copy of the Tribune's Request for Review to the University and asked the University to provide more detailed informati [...] (1)(b) of FOIA. Section 7(1)(c) Section 7\\(C) allows public bodies to withhold: Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted ~ invasion of personal privacy, unless the disclosure is consented to | in writing by the individual subjects of the information. Mr. Brendan J. Healy Mr. Patrick B. Cage January 18, 2012 Page 8 \"Unwarranted invasion of personal privacy\" means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. AS the Supreme Court stated with respect to an earlier version ofjthe exception, \"the phrase ‘personal information’ must have been intended by the legislature to be understood not in the sense of basic identification, buti n the sense of information thati s ‘confidential’ or 'private'.\" Lieber, 176 Ill.2d at 412. This office has consistently concluded that!i names do not qualify as \"personal information\" under the section 7(1)(c) exemption. See III. Att’ y Gen. PAC Pre-Auth. dl11157, issued December 9, 2010 and Ill. Att'y Gen. PAC Pre-Auth. !dl14195, issued May 24, 2011. ! Further, the disclosure of an individual's status as a member of the incoming freshman class in 2005, or his or her receipt of a degree would not constitute an unwarranted invasion of personal privacy. The University argues that the Tribune could use the information to determine \"who did not graduate within the six year time frame.\" However, there are a myriad of reasons why a student may not receive a degree within a specific span of time. For example, he or she may transfer to another institution, may decide to withdraw or attend part-time because of work, family or financial considerations, or decide to pursue a different career, none of which would be reflectedi n the information requested. The fact that a student does not receive a degree within a particular six year periodi s not confidential or private documentary information concerning the student. Therefore, the disclosure of the requested information would not constitute an unwarrantedi nvasion of personal privacy, even if the recipient may use the information to draw inferences regarding academic performance. | Moreover, the University may not treat FOIA requests from the Tribune differently than FOIA requests from any other person or entity. \"[S]elective disclosure by the government ‘is offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of persons or interest groups fosters precisely the distrust of government that FOIA was intended to obviate.\"\" Lieber, 176 I]l.2d at 413 (quoting State of North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978)). FINDINGS AND CONCLUSIONS ” After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds: Mr. Brendan J. Healy Mr. Patrick B. Cage January 18, 2012 Page 9 1) On August 16, 2011, Ms. Jodi S. Cohen, a reporter with the Chicago Tribune, submitted a FOIA request to Chicago State University seeking: the names of all first-time, full- time Chicago State University freshmen who begani n Fall 2005; the names of all undergraduates who were includedi n the May 2011 graduation ceremony and the degrees they received; and the names of any students included in the Fall 2005 freshman cohort who graduated prior to May 2011. 2) On September 9, 2011, the University partially denied the FOIA request, asserting that portions of the responsive records were exempt from disclosure under sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA. The University provided Ms. Cohen withlan untitled table listing majors and degrees awarded that it said pertained to the 2005 freshman class. | 3) On October 4, 2011, the Public Access Bureau received a Request for Review of the University’s September 9, 2011, response. The Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA. 5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011. Therefore, the Attorney General may properly issue a binding opinion with respect to the disclosure of the requested records. | 4) The records requested by Ms. Cohen are public records that the Universityi s required to produce for inspection or copying pursuant to section 3 of FOIA (5 ILCS 140/3 (West 2010)), unless the documents are exempted from disclosure under section 7 of FOIA. | 5) The University has not met its burden under section 1.2 of FOIA (SILCS 140/1.2(West 2010)) of proving by clear and convincing evidence that the names of students are exempt for the following reasons: a) The requested information is \"directory information,\" as defined in FERPA. FERPA does not specifically prohibit the _ release of directory information. Therefore, the University may not rely on the provisions of FERPA to withhold the requested information under section 7(1)(a) of FOIA; b) None of the information requested is \"private information\" as defined by section 2(c-5) of FOIA. Therefore, the University has not met its burden to exempt the requested information from disclosure under section 7(1)(b) of FOIA; and c) None of the information requested by the Tribune is “personal information\" the disclosure of which \"would constitute clearly unwarrantedi nvasion of personal privacy.\" Therefore, the University has not met its burden of demonstrating that the records are exempt under section 7(1)(c) of FOIA. )SE Mr. Brendan J. Healy Mr. Patrick B. Cage January 18, 2012 Page 10 Therefore, it is the opinion of the Attorney General that the University violated FOIA by improperly denying Ms. Cohen's August 16, 2011, FOIA request. Accordingly, the Universityi s directed to take immediate and appropriate action to comply with this opinion by furnishing the requested public records to Ms. Cohen and the Tribune. Under section 9.5(f) of FOJA, the University must either immediately comply with this binding opinion or initiate administrative review under section 11.5 of FOIA (5 ILCS 140/11.5 (West 2010). _ This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 (West 2010). An aggrieved party may obtain judicial review of the decision by/filing a complaint for-administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision by naming the Attorney General of Illinois and Ms. Jodi S. Cohen as defendants. See 5 ILCS 140/11.5 (West 2010). | Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Under FOIA, exemptions for private information, personal information constituting an invasion of privacy, or records exempted by other statutes must be construed narrowly, and a public body cannot rely on a blanket claim that disclosure of student names or graduation status is inherently privacy-invasive. The PAC found that the requested information—names of specific incoming freshmen and whether particular named students graduated—did not fall within the narrow scope of the personal information exemption, the private information exemption, or a valid claim under FERPA, because the requester was not seeking educational records revealing academic performance or disciplinary history, only identity and graduation status tied to previously released aggregate data. Because the University failed to show that disclosure would constitute a clearly unwarranted invasion of personal privacy or that FERPA barred release, the exemptions did not apply and the records had to be disclosed.","card_headline":"Names of first-time freshmen and graduation statuses","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/2011-pac-17006/","full_text":"This binding opinion is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9,5(f) (West 2010), as amended by Public Act 97-579, effective August 26, 2011). The question presented in this Request for Review is whether Chicago State University properly withheld names of students and information concerning students’ graduations pursuant to any of the three exemptions cited by the University. For the reasons set forth below, we conclude that the University has violated FOIA and must provide the wit\n\ne \n\nBACKGROUND On August 16, 2011, Ms. Jodi S. Cohen, a reporter for the Chicago Tribune (Tribune) submitted a FOIA request to Chicago State University seeking: e The names of all 405 first-time, full-time Chicago State University freshmen who began in Fall 2005 e The names of all undergraduates who were included in the May ' 2011 graduation ceremony, and the degrees they received e The names of any students included in the Fall 2005 freshman cohort who graduated prior to May 201 1.! On August 23, 2011, the University submitted to the Public Access Counselor notice of its intent to deny? Ms. Cohen's request for students’ names pursuant to section 7(1)(c) of FOIA.’ 5 ILCS 140/7(1)(c) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452 effective August 19, 2011. This notice to the Public Access Counselor included the following explanation of the University's intention to deny the names of students as personal information: Based on the number of hostile and negative articles that Ms. Cohen has written about Chicago State University, its students, faculty and administrators, the University asserts that it would be an unwarranted invasion of personal privacy to release any of the names of individuals requested by the Tribune. * * * A reasonable person would find the use of his or her name published in association with one of the Tribune's negative articles highly objectionable.; ‘Letter from Jodi S. Cohen, Chicago Tribune, to Patrick B. Cage, FOIA Officer, Chicago State University (August 16, 2011). *Prior to amendment by Public Act 97-579, effective August 26, 2011, section 9.5(b) of FOIA (5 ILCS 140/9.5(b) (West 2010)) required a public body to provide written notice to the requester and to the Public Access Counselor of its intent to assert section 7(1)(c) or 7(1)(f) of FOIA (5 ILCS 140/7(1)(c), (f) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 2011; 97-452 effective August 19, 2011) to deny a request in whole or in part. *Letter from Patrick B. Cage, General Counsel, Chicago State University, to Sarah Pratt, Acting Public Access Counselor, Office of the Illinois Attorney General (August 23, 2011); see 2011 PAC 16489, closed September 7, 2011. Mr. Brendan J. Healy Mr. Patrick B. Cage \n\nThe University sent copies of articles concerning the University by the Tribune with its August 23, 2011, letter to the Public Access Counselor. On August 26, 2011, Public Act 97-579 eliminated the requirement that public bodies seek approval from the Public Access Counselor prior to asserting section 7(1)(c) of FOIA to deny access to public information. Accordingly, on September 7, 2011, we directed the University to promptly respond to the 7r ibune’' s August 16, 2011, FOIA request, and to assert any exemptions that it deemed applicable.’ On September 9, 2011, the University responded to the Tribune's August 16, 2011, FOIA request by providing a one page document that it asserted contained requested information about the 2005 freshman class. The document contains a list of majors, and columns labeled Bachelor of Arts, Bachelor of Science, and Bachelor of Science in Education, along with numbers in each category. The University also asserted that it was partially denying the request pursuant to sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA. 5 ILCS 140/7(1)¢a), (b), (c) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 201197-452 effective August 19, 2011.° Section 7(1)(a) of FOIA authorizes public bodies to withhold \"{ijnformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" Section 7(1)(b) of FOIA permits public bodies to redact \"private information\" as defined in section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2010)) from public records. Section 7(1)(c) of FOIA allows public bodies to redact. \"personal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" \"Unwarranted invasion of personal privacy” is defined in the Act to mean \"the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information.” 5 ILCS 140/7(1)(c) (West 2010), as amended by Public Acts 97-333, effective August 12, 2011; 97-385, effective August 15, 201197-452 effective August 19, 2011. Specifically, the University's September 9, 2011, response asserts that the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. §1232g) and regulations enacted pursuant to FERPA (34 C.F.R. Part 99 (2011)) prohibit it from releasing the requested information because the two categories of information requested could be used to determine who \"failed to make satisfactory academic progress.\" This information, the University stated, is not \"directory information\" and, therefore, FERPA prohibits its release. The University's response did not specify the particular information withheld under each exemption (although it is apparent ‘Letter from Sarah L. Pratt, Acting Public Access Counselor, Public Access Bureau, to Patrick B. Cage, General Counsel, Chicago State University (September 7, 2011). *Letter from Patrick B. Cage, General Counsel. Chicago State University, to Jodi S. Cohen, Higher Education Reporter, Chicago Tribune (September 9, 2011). Mr. Brendan J. Healy Mr. Patrick B. Cage \n\nthat names of students for each of the three categories requested is the information being denied by the University) nor explain its basis for asserting sections 7(1)(b) and 7(1)(c). We note, however, that the University did not re-assert its position that student names were exempt under 7(1)(c) because of prior media coverage. Finally, the University asserted that fourteen members of the 2005 freshman cohort had officially requested that the University exclude their names from directory information.° On October 4, 2011, the Tribune filed a Request for Review of the University's September 9, 2011, partial denial of Ms, Cohen's FOIA request.’ On October 7, 2011, we forwarded a copy of the Tribune's Request for Review to the University and asked the University to provide more detailed informati [...] (1)(b) of FOIA. Section 7(1)(c) Section 7\\(C) allows public bodies to withhold: Personal information contained within public records, the disclosure of which would constitute a clearly unwarranted ~ invasion of personal privacy, unless the disclosure is consented to | in writing by the individual subjects of the information. Mr. Brendan J. Healy Mr. Patrick B. Cage \n\n\"Unwarranted invasion of personal privacy\" means the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy. AS the Supreme Court stated with respect to an earlier version ofjthe exception, \"the phrase ‘personal information’ must have been intended by the legislature to be understood not in the sense of basic identification, buti n the sense of information thati s ‘confidential’ or 'private'.\" Lieber, 176 Ill.2d at 412. This office has consistently concluded that!i names do not qualify as \"personal information\" under the section 7(1)(c) exemption. See III. Att’ y Gen. PAC Pre-Auth. dl11157, issued December 9, 2010 and Ill. Att'y Gen. PAC Pre-Auth. !dl14195, issued May 24, 2011. ! Further, the disclosure of an individual's status as a member of the incoming freshman class in 2005, or his or her receipt of a degree would not constitute an unwarranted invasion of personal privacy. The University argues that the Tribune could use the information to determine \"who did not graduate within the six year time frame.\" However, there are a myriad of reasons why a student may not receive a degree within a specific span of time. For example, he or she may transfer to another institution, may decide to withdraw or attend part-time because of work, family or financial considerations, or decide to pursue a different career, none of which would be reflectedi n the information requested. The fact that a student does not receive a degree within a particular six year periodi s not confidential or private documentary information concerning the student. Therefore, the disclosure of the requested information would not constitute an unwarrantedi nvasion of personal privacy, even if the recipient may use the information to draw inferences regarding academic performance. | Moreover, the University may not treat FOIA requests from the Tribune differently than FOIA requests from any other person or entity. \"[S]elective disclosure by the government ‘is offensive to the purposes underlying the FOIA and intolerable as a matter of policy. Preferential treatment of persons or interest groups fosters precisely the distrust of government that FOIA was intended to obviate.\"\" Lieber, 176 I]l.2d at 413 (quoting State of North Dakota ex rel. Olson v. Andrus, 581 F.2d 177, 182 (8th Cir. 1978)). FINDINGS AND CONCLUSIONS ” After full review and giving due consideration to the arguments of the parties, the Public Access Counselor's findings, and the applicable law, the Attorney General finds: Mr. Brendan J. Healy Mr. Patrick B. Cage \n\n1) On August 16, 2011, Ms. Jodi S. Cohen, a reporter with the Chicago Tribune, submitted a FOIA request to Chicago State University seeking: the names of all first-time, full- time Chicago State University freshmen who begani n Fall 2005; the names of all undergraduates who were includedi n the May 2011 graduation ceremony and the degrees they received; and the names of any students included in the Fall 2005 freshman cohort who graduated prior to May 2011. 2) On September 9, 2011, the University partially denied the FOIA request, asserting that portions of the responsive records were exempt from disclosure under sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA. The University provided Ms. Cohen withlan untitled table listing majors and degrees awarded that it said pertained to the 2005 freshman class. | 3) On October 4, 2011, the Public Access Bureau received a Request for Review of the University’s September 9, 2011, response. The Request for Review was timely filed and otherwise complies with section 9.5(a) of FOIA. 5 ILCS 140/9.5(a) (West 2010), as amended by Public Act 97-579, effective August 26, 2011. Therefore, the Attorney General may properly issue a binding opinion with respect to the disclosure of the requested records. | 4) The records requested by Ms. Cohen are public records that the Universityi s required to produce for inspection or copying pursuant to section 3 of FOIA (5 ILCS 140/3 (West 2010)), unless the documents are exempted from disclosure under section 7 of FOIA. | 5) The University has not met its burden under section 1.2 of FOIA (SILCS 140/1.2(West 2010)) of proving by clear and convincing evidence that the names of students are exempt for the following reasons: a) The requested information is \"directory information,\" as defined in FERPA. FERPA does not specifically prohibit the _ release of directory information. Therefore, the University may not rely on the provisions of FERPA to withhold the requested information under section 7(1)(a) of FOIA; b) None of the information requested is \"private information\" as defined by section 2(c-5) of FOIA. Therefore, the University has not met its burden to exempt the requested information from disclosure under section 7(1)(b) of FOIA; and c) None of the information requested by the Tribune is “personal information\" the disclosure of which \"would constitute clearly unwarrantedi nvasion of personal privacy.\" Therefore, the University has not met its burden of demonstrating that the records are exempt under section 7(1)(c) of FOIA.)SE Mr. Brendan J. Healy Mr. Patrick B. Cage \n\nTherefore, it is the opinion of the Attorney General that the University violated FOIA by improperly denying Ms. Cohen's August 16, 2011, FOIA request. Accordingly, the Universityi s directed to take immediate and appropriate action to comply with this opinion by furnishing the requested public records to Ms. Cohen and the Tribune. Under section 9.5(f) of FOJA, the University must either immediately comply with this binding opinion or initiate administrative review under section 11.5 of FOIA (5 ILCS 140/11.5 (West 2010). _ This opinion shall be considered a final decision of an administrative agency for the purposes of administrative review under the Administrative Review Law. 735 ILCS 5/3-101 (West 2010). An aggrieved party may obtain judicial review of the decision by/filing a complaint for-administrative review in the Circuit Court of Cook County or Sangamon County within 35 days of the date of this decision by naming the Attorney General of Illinois and Ms. Jodi S. Cohen as defendants. See 5 ILCS 140/11.5 (West 2010). | Very truly yours, LISA MADIGAN ATTORNEY GENERAL By: Michael J. Luke Counsel to the Attorney General"}
{"id":646,"orig_master_id":12885,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1976,"date_issued":"1976-04-06","case_number":null,"request_numbers":null,"title":"Illinois education agency's discretion to spend or lapse line-item appropriation on intellectual property","filename":"S-1070 APPROPRIATIONS  Meaning of an Appropriation; Copyright by the State.pdf","rel_path":"AG\\S-1070 APPROPRIATIONS  Meaning of an Appropriation; Copyright by the State.pdf","word_count":525,"summary":"Will you be able to answer your question in general terms? The discretion of an agency to allow an appropriation to lapse depends on the language of the authorization and the appropriation acts . The Supreme Court of Washington in Island Cty. Com. v.- Department of Rev., 500 P. 2d 756 (1972) stated at page 763 that \"an appropriation of public monies by the legislature ia not a mandate to spend\"","plain_summary":"A state education official asked the Attorney General whether his agency was required to spend, or could instead let lapse, a line-item appropriation earmarked for developing agency-owned intellectual property when no other law mandated the underlying contract, and whether an initial contract award created a vested right to funding in subsequent fiscal years. The Attorney General held that, absent specific authorizing legislation, an agency generally has discretion to spend or let lapse its appropriation based on the language of the specific appropriation act, and did not further resolve the vested-rights question. This is a general state-appropriations opinion with no connection to the Freedom of Information Act or Open Meetings Act; its 'OMA' classification in this corpus is a false positive triggered by the letters 'oma' occurring inside unrelated OCR'd words and should not be cited as open-government authority.","holding":"NOT A FOIA/OMA OPINION - keyword false positive, retained and flagged for transparency. Addresses appropriations law only: an agency generally has discretion to spend or let lapse a line-item appropriation absent contrary statutory language.","legal_question":null,"disposition":"other","primary_statute":null,"foia_related":0,"foia_or_oma":null,"foia_exemption":null,"public_body":null,"requesting_party":"Cronin","pac_outcome":null,"pac_law_type":null,"subject_category":"not FOIA/OMA (state appropriations)","subject_description":null,"ocr_status":"ok","ocr_quality":56.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/3e208f645d/1976%20S1070.pdf","sha256":"68628db7ab49192b085237495ce7722b230f970e2f13e06da3c333ec8b74e812","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"This 1976 opinion answers a state education official's question about whether an agency must spend, or may let lapse, a specific line-item appropriation earmarked for developing agency-owned intellectual property, and about vested contract rights across multiple fiscal years. It does not address the Freedom of Information Act or the Open Meetings Act in any substantive way. This document's 'OMA' tag in the corpus is a keyword false positive (the letters 'oma' appear inside unrelated words during OCR), not a real ruling on open government law, and it should not be cited as OMA authority.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-646/","full_text":"--- PAGE 1 ---\nWILLIAM J. SCOTT\nATTORNEY GENERAL\nSTATE OF. ILUNOIS\nSPRINGFIELD\n, .. .e,oo\nApril 6, 1976\nFJLB BO. S-1070\nAPPROPRIAftOJISt\nMeanift9 of An ~ppropriation;\nCOpyri9llt by the State\n-\n.Joaeph M. Cronin\n· Stat.e ·Saperintendent of !Mftu,a on . .\nlllinoi• Office of Bc1ucati.\n100 North ,irat Su.t\nSprincff1e14, lllinoie 62777\nDear Mr. Cronin,\nat for an opinion in\nh containing t.wo .parts. You\nitem of a •tate a9enoy•a annual\nDDJ:'OlilriaUon bJ.11 p:rovidea ~t • certain\n_.uw\ni• appi:opriated 'to the agency\npm-po••\nof' eonuaotin9 for the\n~!!t~~~•t of a oenain tectlmiq11e which\na • tee intelleot.\\1111 property (and there\nno othu enuling legislation which\nmctatea aucb a conuac'I:) then,\n(a) Hllet the agenoy enter a oonuact for\n••ch purpoae wllen·aaid a9ency det.eminea\nit 1:o_be inadviaule to dO so? or may\nthe agency peanit the appropriation to\nlapse?\n--- PAGE 2 ---\nJoseph M. Cronin - 2.\n(b) If the a9ency enters a contract for nch\npurpose in a given fiscal year, and the\ndevelopment of sudl intellectual property\nwill take three or four years. with addi\ntional fiacal year appropriations,~••\naward\nthe recipient of the first contract\nhave a vested interest in receiving the\nsubsequent contract awards?., ·\nYou have cited no act. containing an appropriation\nto your office which specifically provides for contracting £or\nI\nthe.development of intellectual property. I understand from\nyour q,\\leat,.lon that while your agency has authority to ent•r\ninto the contract, 1t is not required by substantive legislation\nto enter into such a contract. You have again cited no specific\nprovisions. I am able, therefore, only to answer your question\nin general terms.\nThe discretion of an a9ency to allow an appropriation\nto lapse depends on the langU.age of the authorisation and the\nappropriation aces. In general, however, an agency has the\ndiscretion to spend its appropriation as it deems necessary\nlai•••\nand may allOfll at least a part of its appropriation to\na••····\nTbe Supreme Court of Washington in Ieland S:tv• s;om. on\nRat, v. pepartmfa:!i pf Rev •• 500 P. 2d 756 (1972), stated at pave\n763 tilat ••an appropriation of public mo:aies by the legislature ia\nnot a mandate to spend, rather it is an authorization given by\n--- PAGE 3 ---\nJoseph M. Cronin - 3.\nthe 1q1a1atve t:o • designated a9enay to use not to aceed a\natated asm for epeo1fie4 puz:posea.\" :tt noted in its footnote\nthat legialative act• cmetomarily, though not necessarily,\ncontain language reflecting this c:haraot.eristic. 'l'he appro\npriation act for your aqency specifically contains lallg\\1&9e\nreflecting' this, i.e. •the following named awns, or ao 111\\lGh\nthereof•~ may be neoeaeary reapeetively, for the objects\nand purposes hereinafter named\". see aleo At.t:orney General v.\nBaldwin,\n279 N.E. 2d 110 (Ma�;�k!�)�/k\t]MAGS-1072 COUNTIES  The Authority of Superintendent of Highways to Hold Funds.pdfAG\\S-1072 COUNTIES  The Authority of Superintendent of Highways to Hold Funds.pdf--- PAGE 1 ---\n\n--- PAGE 2 ---\n\n--- PAGE 3 ---\n\n0f7c4160386b2c1a234431e8e7f0e2619a0476cf2026-06-30T01:33:53.139424+00:00�:�j y�K\t]MAGS-1071 REVENUE  Collectibility of Delinquent Taxes.pdfAG\\S-1071 REVENUE  Collectibility of Delinquent Taxes.pdf--- PAGE 1 ---\n\n--- PAGE 2 ---\n\n--- PAGE 3 ---\n\n--- PAGE 4 ---\n\n--- PAGE 5 ---\n\n--- PAGE 6 ---\na91d55537aa36d64920c30a8bf6ac9662d5a2d962026-06-30T01:33:53.125676+00:00"}
{"id":832,"orig_master_id":12075,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1962,"date_issued":"1962-03-29","case_number":null,"request_numbers":null,"title":"1962 policy on who may request AG legal opinions, excluding OMA/FOIA","filename":"Statement of Policy of the Attorney General Relating to Furnishing Written Opinions.pdf","rel_path":"AG\\Statement of Policy of the Attorney General Relating to Furnishing Written Opinions.pdf","word_count":756,"summary":null,"plain_summary":"This document is not a case decided by the Attorney General, but the office's 1962 internal policy statement describing who may request formal written legal opinions (the Governor, other state officers, legislators, and State's Attorneys) and the procedure such requests must follow. It states that the Attorney General does not furnish opinions to municipalities, private parties, or on questions of executive discretion, fact, or pending litigation. The policy expressly does not govern the separate advisory and binding opinions the Attorney General issues under the Open Meetings Act or the Freedom of Information Act, which follow their own statutory procedures.","holding":"NOT A SUBSTANTIVE OMA/FOIA RULING - mention-only reference, retained and flagged for transparency. States the Attorney General's general policy on who may request formal opinions and carves out OMA/FOIA opinions as governed by separate statutory procedures.","legal_question":"Who may request formal written legal opinions from the Attorney General, and what procedure must such requests follow?","disposition":"other","primary_statute":["5 ILCS 120","5 ILCS 140"],"foia_related":0,"foia_or_oma":null,"foia_exemption":null,"public_body":"Office of the Illinois Attorney General","requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"AG opinion-request procedure (not a FOIA/OMA ruling)","subject_description":null,"ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/opinionpolicy.pdf","sha256":"59519e4fdfbb45d3393b684826bd3692aeea3d4fef10e6cc904c3e463ca14dd5","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"This is the Attorney General's 1962 internal policy statement describing who may request formal legal opinions from that office (the Governor, other state officers, legislators, and State's Attorneys) and how such requests must be submitted. It is not a ruling under the Open Meetings Act or FOIA. It mentions both Acts exactly once, to note that these general opinion-request guidelines do not apply to the separate advisory and binding opinions the Attorney General issues under the Open Meetings Act (5 ILCS 120) or FOIA (5 ILCS 140) - those follow their own statutory procedures.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-832/","full_text":"--- PAGE 1 ---\nSTATEMENT OF POLICY\nOF THE ILLINOIS ATTORNEY GENERAL RELATING\nTO FURNISHING WRITTEN OPINIONS\nAdopted March 29, 1962\n\nThe Attorney General of the State of Illinois makes the following statement of policy\nrelating to the constitutional and statutory duty to give written opinions.\n\nA. Persons to Whom Opinions Will Be Issued\n\n1.\n\n2.\n\n3.\n\n4.\n\n5.\n\nThe Attorney General will furnish written opinions as required by law to the\nGovernor and other elected and appointed State officers upon legal or\nconstitutional questions relating to the duties of those officers, respectively.\n\nThe Attorney General will furnish written opinions to the officers of either\nbranch of the General Assembly and chairpersons and minority spokespersons\nof committees thereof on matters that relate to their duties as such.\n\nThe Attorney General will consult with and advise the several State's\nAttorneys in matters relating to the duties of their offices and will furnish\nwritten opinions to State's Attorneys in matters relating to their official duties,\nwhen appropriate.\n\nThe Attorney General is not authorized to furnish written opinions to the\nofficers of, or attorneys for, public corporations, municipal corporations,\ntownships or other political subdivisions of the State, in the absence of\nspecific statutory authority providing therefor.\n\nThe Attorney General is not authorized to furnish opinions to private persons\nor entities.\n\nB. Form in Which Opinion Requests Should Be Made\n\n1.\n\nRequests must be in the form of a letter and addressed to the Attorney\nGeneral, attention Opinions Bureau, 500 South Second Street, Springfield,\nIllinois 62706.\n\n--- PAGE 2 ---\n2. All requests must contain a clear, concise question of law and a complete\n\nstatement of the facts describing the situation out of which the legal issue\narises. The Attorney General will not seek out the facts or infer the question\nfrom enclosed correspondence. All requests should name a person whom the\nstaff of the Attorney General may contact to discuss the request.\n\nRequests made by executive officers, by chairpersons, directors, heads or\nexecutive secretaries of boards, commissions, departments and agencies of the\nState, by officers of the General Assembly and its committees and\ncommissions and by State's Attorneys must be signed or endorsed by such\nofficers.\n\nRequests from officers under the jurisdiction of the Governor must also be\nforwarded through his office, in accordance with his policy.\n\nC. Situations in Which No Opinion Will Be Issued\n\n1,\n\n3.\n\nThe Attorney General will not furnish opinions regarding the exercise of\nexecutive judgment or discretion, nor on questions of fact.\n\nThe Attorney General will not furnish opinions on questions scheduled for\ndetermination by the courts.\n\nNo opinion should be requested unless a bona fide need exists by the party\nrequesting it with respect to the performance of his or her official duties.\n\nFor a particularly difficult and important question of law, officials should\nresort to a declaratory judgment action whenever practicable, and the Attorney\nGeneral may recommend this or other courses of action that may be more\nappropriate than the issuance of an opinion.\n\nD. Miscellaneous Provisions\n\n1.\n\n2.\n\n3.\n\nOfficers requesting opinions and interested private parties or other\ngovernmental agencies may submit memoranda of law and policy and other\nstatements and material for the consideration by the Attorney General. Such\nmaterial should be submitted to the attention of the Opinions Bureau in the\nSpringfield office of the Attorney General.\n\nAll official opinions of the Attorney General are signed by the Attorney\nGeneral. Informal opinions and other letters signed by Assistant Attorneys\n\nGeneral are not official opinions.\n\nAll opinions are on file in the Attorney General's office in Springfield.\n\n--- PAGE 3 ---\n4. These guidelines do not apply to the furnishing of interpretive opinions by the\nAttorney General as administrator of the Franchise Disclosure Act of 1987\n(815 ILCS 705/1 et seq.).\n\n5. These guidelines do not apply to the furnishing of advisory or binding\nopinions by the Attorney General or the Public Access Counselor pursuant to\nthe Open Meetings Act (5 ILCS 120/1 et seq.) or the Freedom of Information\nAct (5 ILCS 140/1 et seq.).\n\n6. In order for the Attorney General to act in the best interests of the public and\nthe State, all guidelines are subject to exception where special circumstances\ncan be shown to warrant an exception.\n\nPlease note that it is very helpful for the Attorney General to be apprised of all\nbackground information relating to an opinion request. Further, any information relating to the\npractical effect of any particular resolution of a question posed should be included with a request\nfor an opinion."}
{"id":833,"orig_master_id":12143,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1975,"date_issued":"1975-05-05","case_number":null,"request_numbers":null,"title":"Private citizens may tape-record open county board meetings without consent under Eavesdropping Act","filename":"S-908 COUNTIES Tape Recording of Open Meetings and the Illinois Eavesdropping Act.pdf","rel_path":"AG\\S-908 COUNTIES Tape Recording of Open Meetings and the Illinois Eavesdropping Act.pdf","word_count":1184,"summary":"William J. Scott: \"I do not believe that the Eavesdropping Act applies to such tape recordings\" Scott: Tape recording of “Open Meetings’s” not to he construed as criminal conduct . Blackstone defined the common law of eavesdropping as, “listening under walls windows, and there to frame slanderous and mischievous tales”","plain_summary":"A state's attorney asked whether private citizens who are not participants may tape-record open county board meetings without the board members' consent, given the state's separate eavesdropping law. The Attorney General held that the Eavesdropping Act does not apply to open, non-secret recording of a meeting covered by the Open Meetings Act, because eavesdropping requires secretly monitoring a private conversation and Open Meetings Act proceedings are by definition conducted openly. No individual, official or private citizen, may unilaterally object to the open recording of a public meeting.","holding":"The Illinois Eavesdropping Act does not apply to open (non-secret) tape recording by a private citizen of a meeting subject to the Open Meetings Act; such recording is not a criminal violation of the Eavesdropping Act.","legal_question":"Whether private citizens who are not participants may lawfully tape-record open county board meetings without the members' consent, given the Illinois Eavesdropping Act.","disposition":"other","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":null,"public_body":null,"requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"meeting recording","subject_description":null,"ocr_status":"ok","ocr_quality":90.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/0d01fb0e54/1975%20S-908%20COUNTIES%20Tape%20Recording%20of%20Open%20Meetings%20and%20the%20Illinois%20Eavesdropping%20Act.pdf","sha256":"28dac9edb0b96af28c1d6d49f02b07b63bb399dd7cc6b739e6253e4ec9f47db4","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A State's Attorney asked whether private citizens who aren't participants may legally tape-record county board meetings without the board members' consent, given Illinois's separate eavesdropping law. The Attorney General held that the Eavesdropping Act does not apply to open, non-secret recording of a meeting covered by the Open Meetings Act, because eavesdropping requires secretly monitoring a private conversation, and Open Meetings Act proceedings are by definition meant to be conducted openly. No individual - official or citizen - can unilaterally object to open recording of a public meeting.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-833/","full_text":"--- PAGE 1 ---\nWILLIAM J. SCOTT\n' ATTORNEY GENERAL\nSTATE OF ILLINOIS\nS00 SOUTH SECOND STREET\n\nSPRINGFIELD\n62706\n\nMay 5, 1975\n\n_ PILE NO. S-908 . \\\n\nCOUNTIES: LO\nTape Recording of Open Meetings .\n\nand the Illinois Eavesdropping Ac\n\nHonorable Martin Rudman\nState's Attorney, Willi County\nCourthouse\n\nJoliet, Iliinois 60431,\n\nletter wherein you state:\n\nmy ax Opinion S-867 of Feb-\n975, I hereby request your opinion |\neeitg question:\n\ntronic recording by. private\n\nS$, Aho axe not participants, of\neéedings of County Board meetings\n\nwithout the consent of the County Board\n\nmembers, a violation of Article XIV of\n\nChapter 38, Illinois Revised Statutes, 19737\"\n\n‘In opinion 8-867, I stated that a governmental body,\n\neuch as a county board, may not prevent the tape recording of |\n\n--- PAGE 2 ---\nHonorable Martin Rudman - 2.\n\na meeting that comes under the provisions of the Illinois Open\nMeetings Act. (Ill. Rev. Stat. 1973, ch. 102, par. 41 et seq.)\nAlthough that question dealt specifically with a county board\nmeeting, it was clearly indicated that tape recordings of the\n‘proceedings were to be allowed in all “Open Meetings\" held in\nthis State. Although your question deals with county board meet-\nings, the answer is again equally applicable to all “Open Meetings”.\n\nYour inquiry calls into question the relationship be-\ntween my previous opinion and Article 1¢ of the Illinois Criminal\nCode of 1961. (111. Rev. Stat, 1973, ch. 38, par. 14-1 et seq.)\nArticle 14 is concerned with the crime of eavesdropping. Section\nié-1 of the Act defines an eavesdropping device and an eaves~-\ndropper as:\n\n“(a) Eavesdropping device.\n\nAn eavesdropping device is any device capable\n\nof being used to hear or record oral conversation\n\nwhether such conversation is conducted in person,\n\nby telephone, or by any other means; Provided,\n\nhowever, that this definition shall not include\n\nGevicea used for the restoration of the deaf or\nhard-of~hearing to normal or partial hearing.\n\n— (e) Eavesdropper.\n\nAn eavesdropper is any pereon, including law\nenforcement officers, who operates or partici-:\npates in the operation of any eavesdropping device\ncontrary to the provisions of this Article.”\n\n--- PAGE 3 ---\nHonorable Martin Rudman - 3,\n\nSection 14-2 of the Act sets forth the elements of\nthe offense of eavesdropping:\n\n“A pergon commits eavesdropping when he:\n\n{a) Uses an eavesdropping device to hear or .\n\nrecord all or any part of any conversation unless\n\nhe does so with the consent of any one party to\n\nsuch conversation and at the request of a State's\n\nAttorney; or\n\n(b) Uses or divulges, except in a criminal pro-\n\n' eeeding; any information which he knows or reason-\nably should know was obtained through the use of\n\nan eavesdropping device.”\n\nThe initial issue ise whether the legislature intended\nto include within the purview of the Zavesdropping Act, the tape\nrecording of the proceedings of an \"Gpen Meeting\". (See, Op.\nAtty. Gen. 5-736, issued April 17, 1974.) I assume such\nrecording is made openly and not secretly. For the reasons set\nforth below I do not believe that the Eavesdropping Act applies\nto such tape recordings. An analysis of the legislative history\nof eavesdropping statutes in general, as well as a recognition\nof const Ltutionaily protected conduct invelved indicates that\ntape recording of “Open Meetings\" is not to he construed as\ncriminal conduct.\n\nThe crime of eavesdropping although provided for by\n\nstatute in many jurisdictions finds its origins in the common\n\n--- PAGE 4 ---\nHonorable Martin Rudman - 4.\n\nlaw. Blackstone defined the common law offense of eavesdropping\nas, “listening under walls or windows or the eaves of a house to\nhearken after discourse, and thereupon to frame slanderous and\nmischievous tales.“ (4 Blackstone Coumentaries 168; Pavesich v.\n3 and Life Insurance Co., 122 da. 190, 50 S.E. 68, 69 L.R.A.\n101.) The origins of eavesdropping legislation were thus based ,\nupon a concern with protecting the individual and his right of\nprivacy. The Committee Comments to the tllinois law enforce this\ntheory. The Committee states that the reason for the legislation\nis to protect the privacy of individuals, one of the fundamental\ncivil liberties of our syatem. It is apparent that the Committee\nwhich drafted these provisions waa opposed to eavesdropping as\nan unwarranted invasion of the privacy of individuals. See gen«\nerally; People v. Kurth, 34 Ill. 24 387. ,\n\nThe generally accepted definition of the term eaves~-\n‘dropping also lends support to the theory that the legislation\nie designed to protect the privacy of individuals. In the absence\nof a statutory definition indicating a different legislative in-\ntention, words used in a statute are presumed to have their ordi-\n\nnary and popularly understood meaning. (Farand Coal Co. v. Halpin,\n\n--- PAGE 5 ---\n‘Bonorable Martin Rudman - 5.\n\n10 I11. 24 507.) Eavesdropping is defined as listening secretly\nto what is aaid in private. (Webster's Third New International\nDictionary.) From the continued use of the tern eavesdropping,\n\nit appears that the General Assembly intended Article 14 of the\nCriminal Code of 1961 to protect individuals only from secret or\nunknown monitering of their conversations. People v. Kurth, supra;\n(Schaeffer J. concurring) .\n\nIt is apparent, therefore, that before an individual\nmay be guilty of eavesdropping, the words or conversations which\nhe monitors must be of a private nature and the monitoring must\n‘be secret. With this prerequisite established, the words of the\nIllinois Open Meetings Act indicate strongly the answer to your\n_ question. Section 1 of that Act, (X11. Rev. Stat. 1973, ch. 102,\npar. 41) sets forth the public policy of the State:\n\n\"(T]hat the public commissions, committees,\n\nboards and councils and the other public\n\nagencies in this State exist to aid in the\n\nconduct of the people's business. It is the\ntent of 6 Act that their acti be taken\n\nopenly and that their deliberations be con-\nducted openly.\" (Zmphasis added.)\n\nThe recognition of the public nature of governmental\n\n‘Geliberations is found in numerous cases, (See Prosser, Handbook\n\n--- PAGE 6 ---\nHonorable Martin Rudman <- 6.\n\nof the Law of Torts, sec. 117 (4th ed. 1971).) The prevailing.\n\nlaw of invasion of privacy generally recognises that the interests\nin privacy fade when the information involved already is available\n_ to the public. Cox Corporation v. Cohn, __U.S.__ i, 95 S. Ch.\n1029, st. Bd. 22, (1975). -\nTherefore, it is my opinion that the Eavesdropping Act\nis not applicable to electronic recording by private citizens of\nthe proceedings of any meeting where the provisions of the Illinois\nOpen Meetings Act are applicable. Neither the public officials\nparticipating in such a meeting nor the private citizens in attend-\nance at the meeting can claim any right of privacy for their con-\nduct. To aliow any one individual, whether an officeholder or\nconcerned citizen to unilaterally object to the tape recording\nof the proceedings of an “Open Meeting” would violate the spirit\nand intent of opinion S867 and the Illinois Open Meetings Act.\nThe recording of proceedings is not within the protected area of\n. eavesdropping legislation, and therefore is not objectionable.\n\nVery truly yours,\n\nATTORNEY GENERAL"}
{"id":834,"orig_master_id":12153,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1975,"date_issued":"1975-02-04","case_number":null,"request_numbers":null,"title":"County board may not ban tape recording of open meetings","filename":"S-867 COUNTIES Right of Individuals to Mechanically Record Proceedings of County Board Meetings.pdf","rel_path":"AG\\S-867 COUNTIES Right of Individuals to Mechanically Record Proceedings of County Board Meetings.pdf","word_count":1713,"summary":"The Illinois \"Open Meetings Act” was originally enacted in 1957 and although amended in 1965 and 1967 the public policy expressed in the original legislation has remained unchanged . At last count thirty-five states had enacted in one form or another open-meetings legislation . In Nevens v. City of Chino, 44 Cal. Rptr. 50, 233 Cal. App. 2d  775 (1965)","plain_summary":"A state's attorney asked whether a county board could prohibit individuals from bringing a tape recorder to its public meetings. The Attorney General held that a governmental body may not prevent the tape recording of a meeting covered by the Open Meetings Act, reasoning that the common-law right to inspect and copy public records extends to recording public proceedings, and that such recordings must not be allowed to interfere with the meeting's decorum. Governmental bodies were advised to adopt procedural guidelines governing how recording may occur without disrupting the proceedings.","holding":"A governmental body such as a county board may not prevent tape recording of a meeting that qualifies as an open meeting under the Illinois Open Meetings Act (Ill. Rev. Stat. ch. 102, par. 41 et seq.); it may only adopt procedural rules ensuring recording doesn't interfere with the proceedings.","legal_question":"Whether a county board may prohibit individuals from bringing a tape recorder to its public meetings.","disposition":"other","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":null,"public_body":null,"requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"meeting recording","subject_description":null,"ocr_status":"ok","ocr_quality":92.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/7e0a001661/1975%20S-867%20COUNTIES%20Right%20of%20Individuals%20to%20Mechanically%20Record%20Proceedings%20of%20County%20Board%20Meetings.pdf","sha256":"df3864dd120fd4254c5861a5b23d65f58a3c2d4f7011083fb5ff57ff80f5ebef","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A State's Attorney asked whether a county board could prohibit an individual from bringing a tape recorder to a public meeting. The Attorney General held that a county board has no authority to ban recording of a meeting covered by the Open Meetings Act: the Act's policy of open, public deliberation means a board can't rely on its general procedural rulemaking power to prohibit recording devices, even though no statute specifically addresses them. Boards may adopt reasonable rules governing how recording is done so it doesn't disrupt the meeting, but they cannot ban it outright.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-834/","full_text":"--- PAGE 1 ---\n- WILLIAM J. SCOTT\nATTORNEY GENERAL\nSTATE OF ILLINOIS\nS00 SOUTH SECOND STREET\n\nSPRINGFIELD\n62706\n\nFebruary 4, 1975\n\nFILE NO. S-~867\n\nCOUNTIES :\n\nRight of Individuals to Mechani-\ncally Record Proceedings of County\nBoard Meetings\n\nHonorable Omer T. Shawler\nState's Attorney, Clark County\nMarshall, Illinois 6244\n\nDear Mr. Shawler:\n\netter in which you state:\nto the matter of\nding device to a public\np the meeting of the County\nka all preceedings and dis-\na public meeting.\"\n\nThe question you pose is one that has not previously\n\nbeen dealt with in Illinois either by the courts or by my office.\n\nIt is an important question and one that will become more so in\n\nthe coming years. With the advent of smaller, more convenient,\n\n--- PAGE 2 ---\nHonorable Omer T. Shawler - 2.\n\nand more efficient recording devices it has become feasible to\nrecord the proceedings of public meetings without disrupting\nthe meeting.\n\nWhat is really at issue is whether the county board\nmay, within the powers granted to it by law, prohibit an indi-~\nvidual from bringing a recording device to a public meeting. It\nis well established in Illinois that a county board, with the\nexception of a home rule unit, can exercise only such powers as\nare expressly given by law or as arise by necessary implication\nfrom powers granted by law. (Ashton v. Cook County, 384 111.\n287 (1944); I1l. Const., art. VII, sec. 7.) Prior opinions of\nthe Attorney General have stated that a county board may, in\nthe absence of statutory direction, adopt rules governing proce-\ndure. (1965 Op. Atty. Gen., 144; 1969 Op. Atty. Gen., 77.) As\nthese opinions note, procedural rules are not laws as such, but\nare merely regulations governing the conduct of meetings.\n\nThere ig no statute dealing specifically with the use\nof recording devices at county board meetings. For the reasons\nset forth below, the absence of such a specific statute does not\n\nmean that prohibiting tape recorders is within the power of a\n\n--- PAGE 3 ---\nHonorable cwer T. Shawler - 3.\n\ncounty board on the ground that such a rule would be procedural\nonly.\n\nIllinois has enacted “AN ACT in relation to weetings.\"\n(Ill. Rev. Stat. 1973, ch. 102, par. 41 et seg.) Section 1 of\nthat Act sets forth the public policy of the State:\n\n“(T)hat the public commissions, committees,\n\nboards and councils and the other public\n\nagencies in this State exist to sid in the\n\nconduct of the people's business. It is\n\nthe intent of this Act that their actions\n\nbe taken openly and that their deliberations\n\nbe conducted openly.”\n\nThe Illinois \"Open Meetings Act” was originally enacted\n\n. in 1957 and although amended in 1965 and 1967 the public policy\n\nexpressed in the original legislation has remained unchanged. At\n\nlast count thirty-five states had enacted in one form or another\nopen-meetings legislation. (Wickham, Let the Sun Shine In} Gpen\nMeeting Legislation Can Be Our Key tc Closed Doors in State and\n\nLocal Government, 68 N.W. U.L. Rev. 480 (1973).}) Only one State\n\ncourt has been called upon to determine whether such legislation\ncan be interpreted to allow the tape-recording of an open meeting.\nIn Nevens v. City of Chino, 44 Cal. Rptr. 50, 233 Cal. App. 2d\n\n775 (1965), the court was called upon to interpret California's\n\n--- PAGE 4 ---\nHonorable Omer fT. Shawler ~ 4.\n\nopen meeting legislation, the Ralph M. Brown Act (California Gov.\nCode, sec. 54950 ~ 54958, 1972). The Brown Act, although more\ndetailed than the legislation in Illinois, contains language in\nits public policy sections similar to that of the Illinois sta-\ntute. The California Act provides;\n\n*°In enacting this chapter, the Legislature finds\n\nand declares that the public commissions, boards\n\nand councils and the other public agencies in\n\nthis State exist to aid in the conduct of the\n\npeople's business. It is the intent of the law\n\nthat their actions be taken openly and that\n\ntheir deliberations be conducted openly.”\n\nIn Nevens the court held that a city council resolu-\ntion prohibiting tape recorders in the council chambers during\ncouncil proceedings ie an unreasonable deprivation of the means\nto make an accurate record of what transpires in a public meeting\nand interferes with an individual's right as a private citizen to\n. Keep a record of what takes place at public meetings. In so\nholding the court stated that:\n\n\"{T)he plaintiff says that his machine is silent\n\nand unobtrusive and that it does not interfere\n\nin any way with the meetings of the council; it\n\nis not claimed that he uses electricity of the\n\ncity, or that he interferes with the auditory\n\nrights of other citizens. The court can take\njudicial notice that there have been developed\n\n--- PAGE 5 ---\nHonorable Omer T. Shawler - 5.\n\nduring recent years more than one variety of\nnoiseless tape recorder. The action of the\ncity council is too arbitrary and capricious,\ntoo restrictive and unreasonable. [Citations]\nIt bara what clearly should be permitted in\nmaking an accurate record of what takes place\nat such meetings.\n\nAccuracy in reporting the transactions of a\npublic governing body should never be penalized,\nparticularly in a democracy, where truth is often\nsaid to be supreme. Governmental measures based\nupon police power should always be well defined\nand reasonably exercised. And here reason is\ndown-graded. If a shorthand record of such a\nmeeting is more accurate than long hand notes,\nthen the use of shorthand is te be approved\n[Citation]; and if the making of a tape record\nis a atill better method of memorializing the\nacts of a public body it should be encouraged.\n\nAs no one is harmed, the use of a silent\n\ntape recorder operated exclusively by the person\ninterested in making such a record must be per-\nmitted. * # «*\n\nThe California decision is, of course, not binding\n\nupon Illinois courts. However, it is my opinion that the princi-\n\nples enunciated and the holding therein are applicable in Illinois.\nTo hold otherwise would be neither logical nor consistent with |\nthe policy of the Illinois Meetings Act.\n\nAs early as 1958, one year after the enactment of the\nOpen Meetings Act, the then Attorney General held that the minutes\n\nof the public meetings were public records and therefore available\n\n--- PAGE 6 ---\nHonorable Omer T. Shawler - 6.\n\nfor public inspection. (1958 Op. Atty. Gen., 286.) More re-\n\ncently, the argument that public records may be viewed but not\n\ncopied, was rejected by the Illinois Appellate Court. (People\n\n@X% rel, Gibson v. Zeller, 34 Ill. App. 2d 372.) ‘The court in\nGibson dealt with the Glaim by members of a Board of Education\n\nthat although records could be inspected by citizens there was\n\nno right to make copies of the records. The plaintiffs claimed\nthe right to make copies under both the common law and the author~\nity of the State Records Act, (Ill. Rev. Stat. 1973, ch. 116,\n\npar. 43.1 et seg.). The court agreed and held that;\n\n“The right of relators to reproduce the\npublic records is not solely dependent upon\nstatutory authority. There exists at common\nlaw the right to reproduce, copy and photo~\ngxaph public records as an incident to the\ncommon law right to inspect and use public\nrecords. Good public policy requires liber-\nality in the right to examine public recorda.\nIn 76 CJS, Records, p 133, the author states:\n‘The right of access to, and inspection of,\npublic records is not entirely a matter of\nstatute. The right exists at common law, and\nin the absence of a controliing statute, such\nright is still governed by the common law....\nall authorities are agreed that at common law\n@ person may inspect public records ... or\nmake copies or memoranda thereof.' In Clay v.\nBallard, 87 Va 787, 790, 13 SE 262, 263, the\ncourt said that at common law the right to\n\n--- PAGE 7 ---\nHonorable Omer T. Shawler - 7.\n\ninapect includes the right to copy. See\nalso Fuller v. State, 154 Fla 368, 17 S02a\n607; State ex rel. Colescott v. King, 154\nInd 621, 57 WE 535.\n\nDefendants say that relators have the\nFight to lieok, examine and inspect with the\nnaked eye the public records and copy by hand\nthese public records, but that they have no\nright to photograph the records. This argu-\nment cannot be sustained by logic or common\nknowledge. Modern photography is accurate,\nharmless, noiseless and time saving. It does\nnothing more than capture that which is seen\nwith the naked eye. Neither defendants nor\nthe public can be harmed by the reproduction\nof the records exactly as they exist. The\nfact that more modern methods of copying are\ndevised should not lessen the basic right\ngiven under the common law. The State Records\nAct declares the public policy relating to\npublic records in the State of Illinois. It\ndoes not abrogate the common law.\"\n\nin light of the above authority, prohibiting the tape\nrecording of an open meeting would create an anomalous situation.\nAny minutes of the meeting would be available for copying, but\na more efficient and accurate method of copying, such as tape\nrecording the original proceeding would not. Where comprehensive\nminutes are not kept there is an even gxeater reason for alliow-\ning tape recording; such recording would be the only accurate\n\nmeans for ascertaining how or why the public officials acted as\n\n--- PAGE 8 ---\nHonorable Qner T, Shawler <- &.\n\nthey did. I£ open meeting legislation is to have any meaning\nit is essential that the public be granted the right to acquire\na record of what transpired at such open meetings.\n\nTherefore, I am of the opinion that a governmental\nbody, such as a county board, may not prevent the tape recording\nof a meeting that qualifies ae such under the Illinois Open Meet-\nings Act. I must emphasize, however, that such tape recordings\nshould not be allowed to interfere with the overall decorum and\nproceeding of the meeting. Governmental bodies should adopt pro-\ncedural guidelines so that recording may be done in such a manner\n\ngO as not to interfere with the proceedings as they cccur.\n\nVery truly yours,\n\nATTORBWEY GBRBHWERAL"}
{"id":835,"orig_master_id":12157,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1975,"date_issued":"1975-03-06","case_number":null,"request_numbers":null,"title":"Illinois Energy Resources Commission held wholly exempt from Open Meetings Act","filename":"S-875 STATE MATTERS Whether the Illinois Energy Resources Commission is Subject to the Open Meetings Act.pdf","rel_path":"AG\\S-875 STATE MATTERS Whether the Illinois Energy Resources Commission is Subject to the Open Meetings Act.pdf","word_count":749,"summary":"The Illinois Energy Resources Commission was created ‘by Publie Act 78-1125. That Act provides that the Commission shall consist of 10 members of the General Assembly and 8 members from the general public . The Act does not define ‘commissions’ as ‘commigsions’ ‘Commission’ means a special or interim committee or commission of the House of Representatives or the Senate . The Commission is to submit its findings and recommendations .","plain_summary":"A state representative asked whether the Illinois Energy Resources Commission, made up of legislators and public members, was subject to the Open Meetings Act, and, if not, whether it could go into executive session to receive proprietary or secret material when taking no final action. The Attorney General held that the Commission was, by its composition and legislative purpose, a commission of the General Assembly and therefore fell within the Act's express exemption for the General Assembly and its committees and commissions. Because the Commission was exempt from the Act altogether, the Attorney General did not reach the executive-session question.","holding":"The Illinois Energy Resources Commission is a commission of the General Assembly and is therefore entirely exempt from the Open Meetings Act (Ill. Rev. Stat. ch. 102, par. 42), including for closed-session-type discussions.","legal_question":"Whether the Illinois Energy Resources Commission, composed of legislators and public members, is subject to the Open Meetings Act.","disposition":"other","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":null,"public_body":"Illinois Energy Resources Commission","requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"public body definition","subject_description":null,"ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/44e5a3c650/1975%20S-875%20STATE%20MATTERS%20Whether%20the%20Illinois%20Energy%20Resources%20Commission%20is%20Subject%20to%20the%20Open%20Meetings%20Act.pdf","sha256":"3e7f3234bc8daadc7c18999a0dc4249b4c815840373195519b491d8ad286807b","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A state legislator asked whether the Illinois Energy Resources Commission - composed of General Assembly members and public members - was subject to the Open Meetings Act, given the Act's exception for the General Assembly and its committees or commissions. The Attorney General concluded the Commission is itself a commission of the General Assembly, so it falls entirely within that exception and is not subject to the Open Meetings Act's public-meeting requirements at all, regardless of what topic is being discussed at a given meeting.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-835/","full_text":"--- PAGE 1 ---\nWILLIAM J. SCOTT\nATTORNEY GENERAL\nSTATE OF ILLINOIS\nSOO SOUTH SECOND STREET\n\nSPRINGFIELD\n62706\n\nMarch 6, 1975\n\nPILE NO. 8-875 \\ |\nSTATE MATTERS: . a\nWhether the Illinois Energy ~\nResources Commission is Subject NV\n\nto the Open Meetings Act\n\nHonorable Adeline J. Geo~-Ka\nState Representative.\nChairman\n\nTilinois Energy Resour\nState Capitol\n\nSpringfield, Illino\n\nrelation\n\net sea.)\n\npar. 42) specifically provides that: “This Act does not apply\nto the General Assembly or to the committees or commissions\n\nthereof\". The Act does not define ‘commissions’. If the\n\n--- PAGE 2 ---\nHonorable Adeline 3. Geo-Karis ~ 2.\n\nCommission is not a commission of the General Assembly, you\n\nalso request my opinion aa to whether it is permissible for\n\nthe Commission to go into executive session to receive material\nwhich is either of a proprietary or secret nature when no\n\nfinal action will be taken by the Commission.\n\nThe Illinois Energy Resources Commission was created\nby Public Act 78-1125. ‘That Act provides that the Commission\nshall consist of 10 members of the General Assembly and 6\nmembers from the general public, all of which are appointed\nby the leadership of the General Assembly. One of the duties\nof the Commission is to study, review and make recommendations\nconcerning energy related problems in the State of Illinois.\nThe Commission is to submit its findings and recommendations\nto the General Assembly.\n\nThe Commission is similar in its membership and\nduties to other commissions such as the Commission on the Status —\nof Women (ILL. Rev. Stat. 1973, ch. 23, par. 5201); the Spanish ;\nSpeaking Peoples Study Commission (111. Rev. Stat. 1973,\nch. 23, pars. 5211 et seq.) and the County Problema Commission\n(I1l. Rev. Stat. 1973, ch. 34, pars. 1201 e et seq.) These are\nall comnonly considered legislative commissions.\n\nWhile \"AN ACT in relation to meetings\", supra, does\nnot define commissions\", “commission” is defined in section 1\n\n--- PAGE 3 ---\nHonorable Adeline J. Geo-Karis - 3.\n\nof “AN ACT in relation to hearings before commissions\" (I11.\nRev. Stat. 1973, ch. 63, par. 13.1) as follows:\n\n“* * * ‘Commission’ means a special or\ninterim committee or commission of the Bouse\nof Representatives or the Senate, a joint\ncommittee or commission of the House of\nRepresentatives and the Senate, any committee\nor commission consisting of members of the\nGeneral Assembly and of the public, or a\nduly authorized subcommittee of any of the\nforegoing, but shall not be construed to _\ninclude any standing committee of either the\nHouse of Representatives or the Senate.\n\n* ?\n\nThe Energy Resources Commission falle within the definition of\n*conmission” as 30 defined,\n\nIt is thus the obvious legislative intent that the\nIllinois Energy Resources Commission be considered a commission\nof the General Assembly. ,\n\nFurthermore, if the Commission ig not considered a\ncommigsion of the General Assembly, the question would arise as\nto whether it is a commiesicn of the executive or judicial\nbranch. it is obvious from the duties of the Commission that\nit is not a judicial commission. While the Commission does\nhave the duty to review and approve or reject all proposed\nprojects under the program of capital development of coal re-\nsources funded through the sale of general obligation bonds,\n\n--- PAGE 4 ---\nHonorable Adeline J. Geo-Karis - 4.\n\neven after such funds have been appropriated to the Department\nof Business and Economic Development, this does not detract\nfrom the legislative intent that the Commission be a commission\nof the General Assembly. If the Commission were considered an\nexecutive commission, it would be unconstitutional since\nsection 9(a) of article V of the Illinois Constitution of 1970\nprohibits the General Assembly from appointing officers of the\nexecutive branch. Statutes should be interpreted so aa to\navoid rendering them unconstitutional.\n\ni, therefore, am of the opinion that the Illinois\nEnergy Resources Commission is a commission of the General\nAssembly and is not subject to the requirements of °AN ACT\nin relation to meetings\", supra.\n\n' Since the Commission is not subject to the Act,\n\nI need not consider your second question. The exception is\nan absolute exception to all meetings of the Commission and\nan application of such exception does not depend on the subject\nmatter discussed at the meetings.\n\nThis opinion is not to be construed as a holding\non the validity or propriety of possibly executive activities\nbeing assigned to or exercised by this legislative commission.\n\n| Very truly yours, |\n\nATT ORBRBEY GENERAL"}
{"id":836,"orig_master_id":12368,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1972,"date_issued":"1972-07-24","case_number":null,"request_numbers":null,"title":"University Civil Service Merit Board’s advisory committee not exempt from OMA; whole meeting cannot be closed for one item","filename":"S-495 MEETINGS Personnel Directors Advisory Committee - Public Meetings.pdf","rel_path":"AG\\S-495 MEETINGS Personnel Directors Advisory Committee - Public Meetings.pdf","word_count":1962,"summary":"The Public Meetings Act provides for the implementation of this policy by reguiring that all tax supported bedies hold public meetings . Section 2 of the Act provides:  \"All meetings of any legislative  executive, administrative or advisory bedies of the State, counties, towns, cities, villages, incorporated towns, school districts and all other municipal corporations, boards, bureaus, committees ox commissions of this State\"","plain_summary":"A state Board of Higher Education official asked whether the Personnel Directors Advisory Committee of the University Civil Service Merit Board was exempt from the Open Meetings Act, and, if part of a meeting were properly closed, whether the entire meeting could then be closed. The Attorney General held that the Committee, as a tax-supported body with no authority to make employment decisions or conduct collective bargaining, did not fall within any statutory exception and its meetings therefore had to be open, and further held that closing part of a meeting for a properly confidential matter does not permit closing the meeting in its entirety. The opinion noted that both a civil remedy (a court-ordered writ of mandamus) and criminal penalties applied to violations of the Act.","holding":"The Personnel Directors Advisory Committee was not exempt from the (then) Public Meetings Act and its meetings had to generally be open; a public body may not close an entire meeting merely because one agenda item would properly qualify for closed session - only that specific item may be discussed in closed session.","legal_question":"Whether the Personnel Directors Advisory Committee of the University Civil Service Merit Board is exempt from the Open Meetings Act, and whether closing part of a meeting permits closing the whole meeting.","disposition":"other","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":null,"public_body":"University Civil Service Merit Board (Personnel Directors Advisory Committee)","requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"closed session","subject_description":null,"ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/08416fc77c/1972%20S-495%20MEETINGS%20Personnel%20Directors%20Advisory%20Committee%20-%20Public%20Meetings.pdf","sha256":"384caaa9401a7cdc7b3b1783ed65a0780e8eb76b936ba126e8751985428c661c","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Board of Higher Education asked whether a University Civil Service System advisory committee had to hold open meetings, whether an entire meeting must close if one topic on the agenda was properly confidential, and what remedies exist for violations. The Attorney General held the committee is a public body supported by tax revenue that doesn't fit any statutory exception, so its meetings must generally be open. Even if one agenda item is legitimately confidential, that doesn't allow the entire meeting to be closed - only the specific exempted business may be discussed privately. The Act is enforceable both through a court-ordered writ of mandamus and through civil or criminal penalties.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-836/","full_text":"--- PAGE 1 ---\nS-495\n\nSpringfield, ‘Illinois 62701 —\\\\\n\n| Dear Mr. Holderman:\n\nWILLIAM J. SCOTT\nATTORNEY GENERAL\nSTATE OF ILLINOIS\n300 SOUTH SECOND STREET\n\n' SPRINGFIELD)\n\n. : July 24, 1972\nUNIVERSITY CIVIL SERVICE SYSTEM\nPersonnel Directors Advisory Committee\n\n- Public Meetings\n\nHonorable James B. Holderman\nExecutive Director\nBoard of wigher Education\n\n900 Reisch building\n\n119 South Fifth Street\n\n>\n\n1972, which requests\n\nI have your létter of\nmy opinion on the application in Relation to Meetings\"\n(Ill. Rev. Stat. 1971, ch. 102, 41 to 44 inclusive,\n\nhereafter Public Meetings\n\nidvisory Committee is a part of\nrYyice System of Illinois. (Ill. Rev.\nbars. 38b1 to 38m inclusive.)\n\ned ty the Merit Board of the System\n\npursuant to its rule making power. It is composed of the\n\nPersonnel Directors of all of the member institutions. The\n\nCommittee's function is to advise the Merit Board on all matters\n\n--- PAGE 2 ---\nJanes B. Holderman ~- 2.\n\npertinent to the University Civil Service System. Regular\n' meetings of the Committee are held on the first Thursday of\neach month.\nYour specific questions are:\n1. Is the Personnel Directors Advisory\nCommittee exempt from the Public\nMeetings Act?\nIf some areas of the Conmittee's\n\nmeetings are properly ‘closed,’\nthen is the entire meeting closed?\n\nhm\n\n3. Should all or part of the Personnel\nDirectors Advisery Committee meetings\nbe open, what avenues of redress are\navailable for remedy?\n\nThe purpose of the Public Meetings Act is to\nagsure that public business will be openly conducted. The\nlegislative purpose is set forth in Section 1 of that Act.\n\n\"It is the public policy of this State\n\nthat the public commissions, committees,\n\nboards and councils and the other public agencies\nin this State exist to aid in the conduct\n\nof the people's business. It is the\n\nintent of this Act that their actions be\n\ntaken openly and that their deliberations\n\nne maa a irene pores: cee a\n\nbe conducted openly.” (Emphasis supplied)\n\nNet\n\nTil. Rev. Stat. 1971, ch. 102, par. 41.\nThe Act provides for the implementation of this\n\npolicy by reguiring that all tax supported bedies hold public\n\n--- PAGE 3 ---\nJames 5.\n\nmeetings.\n\nHolderman - 3.\n\nSection 2 of the Act provides:\n\n\"All meetings of any legislative\nexecutive, administrative or advisory\nbodies of the State, counties, town\nShips, cities, villages, incorporated\ntowns, school districts and all other\nmunicipal corporations, boards, bureaus,\ncommittees ox commissions of this State,\nand any subsidiary bodies of any of the\nforegoing including but not linited to\ncommittees and subcommitteas which are\nsupported in whole ox in part by tax\nrevenue, or which expend tax revenue, shall\nve public meetings . . .\". (Emphasis\nsupplied) Til. Rev. Stat. 1871, ch. 102,\npar. 42.\n\nIn considering this Act the Appellate Court said, \"The language\n\nof this statute is unequivocal and no guidelines we might\n\nlay down could make for more clarity than already exists.\"\n\n(Johnson v. Board of Education of Chicago, 79 Ill. App.2d 22,\n\n25.) The legislature has clearly stateé its desire that the\n\nmeetings of tax supported Lodies be public meetings unless\n\nthe legislature has provided a specific exception. The\n\ncpinions of my office have followed this interpretation.\n\n1969 Atty. Gen. Op. 131; 1976 Atty. Gen. Op. 185; 1971 Atty.\n\nGen. Op.\n\nsate neem ne crane\n\na S$ 298 issued May 24, 1971.\n\n--- PAGE 4 ---\nJames B. Holderman ~- 4.\n\nSection 2 of the Public Meetings Act provides a\nnumber of exceptions to the open meeting rule. (111. Rev.\nStat. 1971, ch. 102, par. 42.) The following summarizes the\nstatutory exceptions:\n\na) collective negotiating matters between\npublic employers and their employees or\nrepresentatives, ;\n\nb) deliberations for decisions of the\nIllinois Cammerce Commission and the\nIllinois Parole and Pardon Board,\n\nec) executive sessions of the Illinois Crime\nInvestigating Commission where investigations\nare to be discussed,\n\na) meetings where the acquisition of real\nproperty is being considered, or where a\npending court proceeding against or on\nbehalf of the particular governmental unit\nis being considered, but no other portion\n\nof such meetings may be closed to the public,\n\ne) grand and petit jury sessions,\n\nf) where the Constitution provides that a\ngovernmental unit can hold secret meetings,\n\ng) meetings at public institutions of higher\neducation relating to campus security or to\nthe safety of staff and students,\n\n--- PAGE 5 ---\nh) meetings of the General Agsembly or\ncommittees and commissions thereof,\n\ni) clesed sessions to consider information\nregarding appointment, employment or dis~\nwissal of an employee or officer or to hear\ntestimony on a complaint lodged against an\nemployee or officer to determine its validity,\nbut no final action may be taken at a clesed\nsession,\n\nj) closed sessions where Federal regulation\nrequires it,\n\nk) closed sessions of a school board or any\ncomittee thereof for hearing student dis-\nciplinary cases as for discussing matters\nrelating to individual students in special\neducation prograns as defined by Article 14\ncf The School Cede (Ill. Rev. Stat. 1571,\nch. L22, par. 14-i et sec.)\n\n1) closed sessions of an advisery committee\nappointed to provide a public body with profession-\nél consultation on matters germane to its field\n\nof competence to consider matters of professional\nethics or performance ,\n\nri) closed sessions to consider the appoint~\nment of a member to fill a vacancy on that\nbody, Lut no final action may be taken at\n\na Closed session, and\n\nn) closed sessions pursuant to ordinance\nof a municipality for the conciliation\n\n--- PAGE 6 ---\nJames B. Holderman -~ ¢€.\n\nof complaints of discrimination under\n\nSection ll~-1l1.1-1 of the Tlilinois Municipal\n\nCode. Ill. Rev. Stat. 1971, ch. 22,\n\npar. 11-11.1-1.\n\nThe Personnel Directors Advisory Committee is a\ncommittee of a tax supported public body of the State,\nthe University Civil Service Merit Board. It is a rule of\nstatutory construction that the expression of certain\nexceptions in a statute is the exclusion of all others.\n(City Savings Association v. International Guaranty and\nInsurance Company, 17 Ill. 24 609.) Unless the meetings\nof the Personnel Directors Advisory Committee can he brought\nunder one of the foregoing exceptions, it would be subject\nto the Public Meetings Act.\n\nMost of the exceptions are clearly inapplicable _\nto the Personnel Directors Advisory Committee. Only those\nlettered i and 1 raise any questions. The University\nCivil Service System was created to provide a uniform program\nof personnel administration for the various nonacademic\n\nenployees of the several State colleges and universities.\n\n--- PAGE 7 ---\nJames &. Holderman 7.\n\n(Heap v. University Civil Service Berit Board, 83 Ill. App.24\n350.) The Merit Hoard created by the system supervises the\nadministration of the statutory provisions. (Ill. Rev. Stat.\n\n1871, ch. 24 1/2, par. 38b3.) It dees not have the authority\n\nto make employment decisions for the individual mamber\n\ninstitutions. (I11. Rev. Stat. 1971, ch. 24 1/2, par. 38b7.)\n\nThe Herit Board does not act as a collective bargaining agent\n\nfor the member institutions: the employers are authorized to\n\nsO act. (Ill. Rev. Stat. 1971, ch. 24 1/2, par. 3863, subpar.\n\n(3).) the Personnel Advisory Comittee of the Merit Board has no\npower to make employment decisions nor te undertake collective\nbargaining. They would, therefore, not be covered by the\n\nexceptions to the Public Meetings Act which allow closeé sessions\n\nto discuss employment decizions or collective bargaining negotiations.\nYou should also note that the University Civil Service System\n\nAct (111. Rev. Stat. 1971, ch. 24 1/2, pars. 38b1 to 38m\n\ninclusive) contains no statutory provision allowing the Merit\n\nEoard to hold confidential meetings.\n\nThe exception for Advisory Committees appointed\n\n--- PAGE 8 ---\ndames B. Holderman ~ §&.\n\nto advise public bodies on matters of professional ethics\n\nand performance is also inapplicable to the Personnel\nDirectors Advisory Committee. The Department of Registration\nand Education has general supervisory power of the statutes\nproviding for licensing of prefessionals who work in Illinois.\n(Ill. Rev. Stat. 1971, ch. 127, pars. 58.91 to 58.11\ninclusive.) The Department's power includes examinations,\nlicensing and revocation of license; it may only be exercised\npursuant to the written reconmendation of a committee made\n\nup of members of that profession. (I11. Rev. Stat. 1971,\n\nch. 127, par. 60 to 60h inclusive.) Moat of the licensing\nstatutes create an Advisory Board or group whose purpose is\nto advise on matters of professional ethics and performance.\n(i.e. architects, Ill. Kev. Stat. 1971, ch. 10 1/2, par. 4a;\ndentists, Ill. Rev. Stat. 1971, ch. $91, par. 58a; public\naccountants, Ill. Rev. Stat. 1971, ch. 110 1/2, par. 36;\nveterinarian, Ill. Kev. Stat. 1971, ch. $1, par. 124.8.\n\nSee also nurses, Il1. Rev. Stat. 1971, ch. $1, par. 35.38\n\nand pharmacists, Ill. Rev. Stat. 1971, ch. 91, par. 55.51.)\n\n--- PAGE 9 ---\nJames B. Holderman -~ 9,\n\nIt is to these groups that the exception for closed meetings of\nprofessional advisory groups applies. The purpose of this\nexception is to pretect individuals who are subject to investi~\ngation for their professional conduct. Information of these\ninvestigations should not become public knowledge unless\ndisciplinary action is taken against them. In this respect\nthe exception is similar to the exceptions for public bodies\nGiscussing student discipline or employment decisions.\n\nUnder the above analysis 1t would appear that the\nPersonnel Directors Advisory Committee is a committee of\na public agency supported by tax revenue which does not fall\nwithin any of the exceptions of the Public Meetings Act.\nIt would, therefore, be required to make its meetings open\nto the public. In answer to your first question, it is my\nopinion that the Personnel Directors Advisory Committee\nis not exempt from the Public Meetings Act.\n\nA closed meeting can only be held pursuant to\n\none of the statutory exceptions to the Public Meetings Act.\n\n--- PAGE 10 ---\nJames E. Holderman ~ 13.\n\nAs discussed above, none of the exceptions to the Public\nMeetings Act can be applied to the Personnel Directors\n\nAdvisery Committee. Its neatings must he open. I might\n\nalso point out that the exceptions to the Fublic Meetings Act\nare mostly limited ones which allow a publie body to hold\n\na Closed meeting for some limiteé purpose. Public bodies which\nfall within one of the exceptions may hold closed sessions only\nfor the purpose of transacting the business authorized by that\nexception. A public body would not be allewed to close its\nentire meeting because one item on the agenda was properly\nconfidential. The adontion of such an interpretation of the\nPublic Meetings Act would frustrate its legislative purpose.\nTherefore, in answer to your second question, it is my opinion\nthat the Public Meetings Act does not provide any exception\nwhich would allow the Personnel Directors Advisory Committee to\nclose a portion of its meetings to the public. Even if a portion\n\nof the committee's meeting were properly closed, the entire\n\nmeeting could not be closed to the public.\n\n--- PAGE 11 ---\nJames E. Holderman - 11.\n\nThe Public Meetings Act contains two provisions\nto insure compliance with its terms. Saction 3 provides\nthat a court may issue a writ of mandamus and make whatever\nother orders are necessary to obtain compliance. (Ill. Rev.\nStat. 1971, ch. 192, par. 43.) Section 4 provides that persons\nviolating the Public Seetings Act may be punished by fines\nox imprisonment or both for violating its terms. (Ill. Rev.\nStat. 1971, ch. 192, par. 44.) Therefore, in answer to your\nthixd question, it is my opinion that the terms of the Public\nMeetings Act provide both civil and criminal remedies to\ninsure compliance with ite terms.\n\nThis opinion is not to be construed as a comment\nvpon the rights, if any, that a member of the public has to\nparticipate in a meeting.\n\nYours very truly,\n\nAT&T OR}\n\ns\nzt\n3\n“<\n\nGENERA\n\nti"}
{"id":837,"orig_master_id":12486,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1980,"date_issued":"1980-07-28","case_number":null,"request_numbers":null,"title":"News media recording provision does not limit individual’s pre-existing right; library board’s closed session unjustified","filename":"S-1501 MEETINGS Tape Recordings.pdf","rel_path":"AG\\S-1501 MEETINGS Tape Recordings.pdf","word_count":1533,"summary":"Section 2.05 of the Act CR11.05 provides: “Subject to the provisions ef ‘An Act in relation to the rights of witnesses at proceedings conducted by a court, commlesion, administrative agency or other tribunal in this State which are televised or broadcast or at which retions pictures are taken’, approved July 14, 1953, as amended, by tape, film or other means . The atithority holding the meeting shall prasecribe reasonable rules to govern the right to make such recordings .","plain_summary":"A state's attorney asked whether a new statutory provision expressly allowing news media to record open meetings limited any other individual's pre-existing right to record, and separately asked to what extent attorney-client privilege could justify a closed session, where a library board had met privately with its attorney to discuss a tax-rate-reduction petition. The Attorney General held that the news-media recording provision did not narrow the existing right of any individual to record an open meeting, and that the library board's closed-door consultation was not justified because no litigation was pending or reasonably foreseeable and no confidential information was actually discussed. The opinion left the general boundary of the attorney-client exception unresolved, noting it must be decided case-by-case in the public interest.","holding":"(1) A 1977 amendment giving news media an explicit statutory right to record open meetings did not limit any other individual's pre-existing right to record open meetings under the Open Meetings Act. (2) A public body may not hold a closed session to consult its attorney absent pending or reasonably foreseeable litigation or genuinely confidential information; discussing a citizen petition with counsel in the abstract does not qualify for the attorney-client exception.","legal_question":"Whether a statutory provision expressly allowing news-media recording of open meetings limits any other individual's pre-existing right to record, and to what extent attorney-client privilege justifies a closed session.","disposition":"other","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":null,"public_body":null,"requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"meeting recording","subject_description":null,"ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/1428a1d364/1980%20S-1501%20MEETINGS%20Tape%20Recordings.pdf","sha256":"d6bdc81cdd5fd45c93a649d476ef840f69d92839c38eca43439f338c3a4d9bc3","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A State's Attorney raised two questions: whether a 1977 amendment giving news media an explicit right to record open meetings limited any other person's pre-existing right to record, and whether a library board could hold a closed session so its attorney could explain a citizen tax-rate-reduction petition. The Attorney General held the amendment only made explicit a right the public already had under a 1975 opinion - it did not narrow anyone else's right to record open meetings. On the second question, the Attorney General found no pending or reasonably foreseeable litigation and no genuinely confidential information at issue, so consulting counsel behind closed doors about the petition did not qualify for the attorney-client closed-session exception, and the discussion should have been held in open session.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-837/","full_text":"--- PAGE 1 ---\nWILLIAM J. SCOTT —\nATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nSPRINGFIELD\n\nJuly 28, 1930\n\nPILE KO. $-1501 4 \\\n\nMEETINGS :\nTapa Recordings\n\nHonorable Dennis P. Ryan .\nState's Attorney, Lake County,\nCounty Suilding\n\nWaukegan, Illinois 60085\n\nDear Mr. Ryan:\n\nmy opinider t poth Actions constitute violations of “AN\n\n1979, ch. 102, par. 41 et seq.}, hereinafter referred to as the\nOpen Heatings Act.\n\n--- PAGE 2 ---\nHenorable Dennis FP. Ryan - 2.\n\nSection 2.05 of the Act CZ11. Rev. Star. 1979,\neh. 102, par. 42.05) provides:\n\n“Subject to the provisions of ‘An Act in\nrelation to the rights of witnesses at proceadings\nconducted by a court, comalesion, administrative\nagency or other tribunal in this Stare which are\ntelevised or broadcast or at which motions pictures\nare taken’, approved July 14, 1953, as amended, the\nprocesdings at meetings required to be open by thie\nAct may be recorded by any representativa of any\nnews medium as defined in ‘An Act concerning disclosure\nof the sources of information obtained by certaia\npersons in the news media’, approved September 23,\n\n971, by tape, film or other means. The anzhoricy\nholding the meeting shall prascribe reasonable rules\nte govern the right to make such recordings.\n\nIf a wituess at any meeting required to be open\nby this Act which is conducted by a commission, ad-\nministrative agency or other tribunal, refuses to\ntestify on the grounds that he may not be compelled\nte testify if any portion of his testimony is to be\nbroadcast or televised or if motion pictures are to\nbe taken of him while he is testifying, the authority\nholding the meeting shall prohibit such recording\nduring the testimony of the witness. Nothing tu this\nSection shall be construed to extend the right to\nrefuse to testify at any meeting not subject to the\nprovisions of ‘An Act in relation to the rights of\nwitnesses at proceedings conducted by a court,\ncormission, adminfietrative agency or other tribunal\nin this State which are televised or broadcast or\nat which motion pictures ara taken’, approved July 14,\n1953, as anended,”\n\nThis provigion was enacted approximately two years after I\nadvised, in opinion No. $-867, issued February 4, 1975, that\n\na governmental body may not prevent the tape recording ef a\npublic meeting. (1975 TLL. Act'y Gen. Op. 17, 20.) In that\noplaion, I specifically discussed the right of a private\nindividual to bring an electrenic recording device to a public\n\nmeeting.\n\n--- PAGE 3 ---\nHonorable Pennis P. Ryan ~ 3,\n\nThe lesue thus raised is whether in enacting a pro-\nvision which specifically graute representatives of thea news\nmedia the right to record a public meeting, the General Assembly\nmeant to grant a public bedy the authority to prevent the tape\nrecording of a publie meeting by any other person,\n\nThere is neo language in section 2.05 which shows\nany intent on the part of the General Assembly to change the\nlaw or which limits the right of any individual to record a\nmeeting; and there is no provision in the Open Meetings Act or\nother statute which grants a public body the authority to\nprevent recording (other than to praserva decorum and prevent\ninterference with the proceedings). Section 2.93 only makes\nthe right to record by news media representatives explicit and\nmakes clear that the public body hae authority to prohibit\nrecordings 1£ requested by certain witnesses.\n\nSection 2.03 was added by, Public Act 80-862 (H.B. 796)\nwhich aise added paragraph (e) to section 14-3 of the Criminal\nCode af 1961 (ILL. Rev. Stat. 1979, ch. 38, par. 143), which\nexenpte \"[xrlecording the procsedings of any meeting required\nto be open * * *\" from the criminal provisions relating to\neavesdropping. This provision applies to all recordings, not\njust those by representatives of the news media.\n\nThe interpretation that by adding section 2.05 the\nGeneral Assembly did not intend to limit the right of any\n\nindividual co record a meeting is confirmed by the debates.\n\n--- PAGE 4 ---\nHonorable Dennis P. Ryan ~ 4.\n\nIn the Senate debates concerning House Bill 796, Senator\nHimrod stated:\n\" & te\n\n* ok * What. this bill docs, ie it provides\nfor the confirmation to put ie i iietative Langus ge\nthe Attorney General's skal 8 opin ie thia particu ar\n\nrigne te implicit. ¥ * Tea putting this into\nthe law, of course, only. allows them to enforce\nthe right thet they already have. * * * oo\n\nEIS\n\nwo OF\n\n; I just want to state, Senator vonnewaid, ‘that\nI bave in my hend bere from the Journal Courier in.\nJacksonville on May 17th, the most recent dates.\nthat are involved, that there was a physical removal\nof & television crew from a nearing and in opposition\nto the right which they already have and I would hope\nthat all this bill does is put the Attorney General's\nopiaion into Statutes. * * *\" (imphasia added.)\n. (lilineis Senate Bebates, Jiume 27, 1977, at 1L1, 112.)\n\nSecondly, you inquire as to the extent to which tha\nattorney-client privilege may be aseerted ag a basia for con-\nducting deliberations of 2 public body in a closed session.\nThe inguiry is based on a set of facts which you related as\n\nfollows:\nae kee\n\nThe taxpayer's association circulated a petition\nunder §léZa cf the Revenue Act (I11L. Rev. Stat. (1977),\nCh. 120, [par.] 6434), which requested that a refer-\nendum be conducted on 2 question of public policy\nvélating to the reductien of the maximum tax rate\nof the library district. The petition was present\nto the secretary of the district’s board. At the\nfirst meeting of the board subsequent to the pre-\nsentation of the petition, the beard met in closed\nsession for the purpose of consulting ‘privately\nwith the attorney in order that he might explain to\nthe beard the petition itself and the statutory basis\nfor it’. According to the statement of the president\nof the board of trustees the sole matter discussed\nduring the clesed session was the attorney's ‘advice\n\n--- PAGE 5 ---\nhonorable Uenmis PP. Ryan .« 5,\n\nom the legal background of the petitioner 8\n\naction ard on the library board's avallable options\n\nin considering the position’, ineluding responses\n\nby the attorney, to ‘individual board members‘ questions\nm the matter’\n\nAgs you noted in your letter:\niad ee *&\n\n* # &1T]ie Open Meetinage Act dees not contain\nany exception for discussions between attorney and\nclient except as they relate to pending litigation.\n“However, in People ex rel. To fv. Barger, 332 0.0.\n649 (ind bist. (3735 the Appellate Court stated\nia dieta that advance legal consultation between a\npubiic bacy and its attorney on prospective litiga-\ntien, does not constitute a ‘meeting \"SF ‘the\ngovernmental body as contemplated in the Act and\nthus is not covered by the Act. * *\n\nwow\n\nthe court in Barger sugsested two reasons for the need to allow\na public bedy to consult with its atterney in limited cir-\ncumstances concerning prospactive Litigation:\n\n(1) It would not be in tha public iuterest to\nrequire a public body to discues foreseeable\nLitigation with its attorney iu an open\nmeeting becauge it would give a potential |\nprivate adversary a litigious acvantaze ever\nthe public. .\n\nClosed sessions between a public body and .\nits attorney are sometimes necessary to\npreserve the confidentiality of confidential\ninformation which the public body must relate\nto ite attorney in order for him to de a pro-\nfessional job.\n\nFrom the facts as you stated thes ta your letter end\n\nquoted above, I see nothing which indicates a legitimate\n\nreason for closing the meeting. Ne litigation was pending or\n\nreasonably foreseeable and no confidential information was _\n\n--- PAGE 6 ---\nHonorable Deunis P. Ryan - 6.\n\ndiscussed. The library board is required to place the pre- .\nposition for lowering the tax rate Limit on the ballot if\ntechnical requirements are met, If these requirements are\nmet, the board has uo option. The petition iteelf and the\nstatutory basis for it are public knowledge. |\n\n} It is impossible te state precisely the extent to.\nWhich the attorney-elLent privilege may be asserted as a\nbasis for conducting deliberations of a public bedy in a\nclosed session. The court in Barger, in recognizing ia dicta\nthat advance consultacions between a publie body and its |\nattormmey are uot subject to the Open Meetings Act, stated\n\nat page 936:\n\nThis does not maan, of course, that con-\nsultations by a governing body with an attorney\nin private may be used as a device to thwart the\nliberal implementation of tha poliey that the\ndecision-making preeesa is to be open and that\nconfidentLality is to be strictly limited. The\nbalance between the two must always be resolved\nin the public interest on a case-by-case basis,\n\n. ao . ”\n(Feople ex rel. Hopf v. Lerger (1975), 30 1211.\n\nThe court in the Barger case did not find sufficient reason\nto justify closing the meeting. I do not find sufficient\nreason to clese the meeting on the facts you present.\n\nVery truly yours,\n\n4\n\nATTORSAEY GERERAL"}
{"id":838,"orig_master_id":12497,"dup_master_id":null,"dup_sha256":null,"source":"AG","sub_agency":null,"doc_type":"Attorney General Opinion","binding":0,"year":1980,"date_issued":"1980-05-12","case_number":null,"request_numbers":null,"title":"School board's closed session on extending bargaining rights violated Open Meetings Act","filename":"S-1490 MEETINGS Collective Negotiating Exception to the Open Meetings Act.pdf","rel_path":"AG\\S-1490 MEETINGS Collective Negotiating Exception to the Open Meetings Act.pdf","word_count":388,"summary":"William J. Scott: Special education board held a closed session to discuss whether or not it would extend collective bargaining rights . Section 2 of the Open Meetings Act provides in pertinent part: \"All meetings of any legislative, executive, administrative or administrative or advisory bodies of the State, counties, townships, cities, cities ... and all other municipal corporations, boards, bureaus, committees or commissions\"","plain_summary":"A state's attorney asked whether a school board's closed session to decide whether to extend collective bargaining rights to its employees fell within the Open Meetings Act's exception for collective negotiating matters. The Attorney General held that the exception, which must be narrowly construed, applies only to negotiations between an employer and employees who already have bargaining rights, not to an employer's unilateral, threshold decision about whether to grant those rights in the first place. The board's closed session on that threshold question therefore did not qualify for the exception.","holding":"The collective negotiating exception to the Open Meetings Act does not cover a public body's unilateral internal deliberations about whether to extend collective bargaining rights in the first place - only actual negotiations between an employer and a recognized employee representative qualify for closed session.","legal_question":"Whether a school board's closed session to decide whether to extend collective bargaining rights falls within the Open Meetings Act's exception for collective negotiating matters.","disposition":"other","primary_statute":["5 ILCS 120"],"foia_related":0,"foia_or_oma":"OMA","foia_exemption":null,"public_body":null,"requesting_party":null,"pac_outcome":null,"pac_law_type":null,"subject_category":"closed session","subject_description":null,"ocr_status":"ok","ocr_quality":91.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/dA/27d59cb8e3/1980%20S-1490%20MEETINGS%20Collective%20Negotiating%20Exception%20to%20the%20Open%20Meetings%20Act.pdf","sha256":"c2c68d04b91e4d6bbbb48e3df55522ccde5d0c905c13026476f60079db264d94","needs_review":0,"splice_suspect":0,"splice_method":"pattern scan: clean","faq_tags":null,"truncated_suspect":0,"site_category":null,"full_text_pre_clean":null,"full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A State's Attorney asked whether a special education board could hold a closed session, under the Open Meetings Act's collective-bargaining exception, to decide whether to extend collective bargaining rights in the first place - before any bargaining relationship existed. The Attorney General agreed this did not qualify: the collective negotiating exception only covers actual negotiations between an employer and an already-recognized employee representative, not a board's preliminary, unilateral decision about whether to extend bargaining rights to begin with. Exceptions to the Open Meetings Act must be read narrowly, so this threshold deliberation had to happen in open session.","card_headline":null,"full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/doc-838/","full_text":"--- PAGE 1 ---\nWILLIAM J. SCOTT\nATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nSPRINGFIELD\n\nMay 12, 19380\n\nPILE NO. S-1490 \\\n\nMEETINGS:\nCollective Negotiating seni Co\nto the Open Meetings Act\n\nHonorable Edwin R. Parkinso\nState's Attorney, Morgan C\nMorgan County Courthouse\nJacksonville, Illinois 62\nDear Mr. Parkinson:\n1 you inquire whether\n\nwhether to extend collective\n\nEctive bargaining exception in\n\nin relation to meetings\" (I11, Rev. Stat.\n2) [Open Meetings Act], You state in.\n\na ocal. special education board, at a time\nwhen no collective bargaining agreement was in existence,\nheld a closed session to discuss whether or not it would\nextend collective bargaining rights. You advise that it is\n\nyour opinion that such a meeting does not fall within the\n\n--- PAGE 2 ---\nHonorable Edwin R. Parkinson - 2.\n\ncollective negotiating exception to the Open Meetings Act.\nI concur with your opinion.\n\nSection 2 of the Open Meetings Act provides in\npertinent part: | |\n\n\"All meetings of any legislative, executive,\nadministrative or advisory bodies of the State,\ncounties, townships, cities, villages, incorporated\ntowns, school districts and all other municipal\ncorporations, boards, bureaus, committees or\ncommissions of this State, and any subsidiary\nbodies of any of the foregoing including but\nnot limited to committees and subcommittees which\nare supported in whole or in part by tax revenue,\nor which expend tax revenue, shall be public\nmeetings except for (a) collective negotiating\nmatters between public employers and their\n\nemployees or representatives * * *,\nkok Ox \"\n\nExceptions to the Open Meetings Act should be\nnarrowly construed to avoid doing violence to the volicy\nwhich the Act is intended to promote. (Ill. News Broadcasters\nv. City of Springfield (1974), 22 Ill. App. 3d 226, 228.) tt\nis clear from the language of the statute that a closed meeting\nto consider whether or not collective bargaining rights will\nbe extended is not within the plain meaning of section 2(a).\nThere can be no collective negotiations between employers\nand employees before there has been a decision by the employer\n\nto extend negotiating rights. Therefore, it is my opinion\n\nthat the collective negotiating exception of the Open\n\n--- PAGE 3 ---\nHonorable Edwin R. Parkinson - 3,.\n\nMeetings Act does not include unilateral deliberations\nby the employer on the question of whether to extend\nnegotiating rights.\n\nVery truly yours,\n\nATTORNEY GRANERAL"}
{"id":839,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-30","case_number":null,"request_numbers":["13591"],"title":"Illinois Department of Revenue did not violate FOIA by withholding audit manual sections","filename":"13591, issued October 30, 2018.pdf","rel_path":null,"word_count":3178,"summary":"The requester sought portions of the Illinois Department of Revenue's Audit Manual regarding corporate income tax and sales/use tax determinations, which the Department withheld. The PAC determined that the Department's reliance on FOIA exemptions and federal law to withhold the records was appropriate.","plain_summary":"A law firm requested internal audit manuals from the Illinois Department of Revenue to understand how the state determines corporate income and sales taxes. The Attorney General's office reviewed the request and concluded that the Department was legally allowed to keep these documents private to protect tax enforcement standards. This means the request for the records was denied and the case is now closed.","holding":"The Illinois Department of Revenue did not violate FOIA by withholding the requested audit manual sections.","legal_question":"Whether the Illinois Department of Revenue properly withheld portions of its Audit Manual under FOIA exemptions 7(1)(d)(i) and 7(1)(d)(ii) and federal law.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(i)","7(1)(d)(ii)"],"public_body":"Illinois Department of Revenue","requesting_party":"Ms. Julie Skelton (McDermott Will & Emery)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(d)","subject_description":"The request sought internal audit manual sections used by the Department of Revenue for tax enforcement and examination standards.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_v/13591%2C%20issued%20October%2030%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["audit manual","tax records","enforcement standards","FOIA exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOctober 30,  2018\n\nVia electronic mail\n\nMs.  Catherine A. Battin\nMcDermott Will &  Emery\n444 West Lake Street\n\n[street address redacted for site publication -- see original PDF]\ncbattin@mwe.\n\ncom\n\nVia electronic mail\n\nMr.  Jim Nichelson\n\nAssistant General Counsel/ Ethics Officer\n\nIllinois Department of Revenue\n\n101 West Jefferson Street\n\nSpringfield,  Illinois 62702\n\njim.nichelson@illinois.gov\n\nRE:  FOIA Request for Review — 2011 PAC 13591\n\nDear Ms. Battin and Mr. Nichelson: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Illinois Department of Revenue\nDepartment)  to Ms.  Julie Skelton' s January 21,  2011,  FOIA request did not violate FOIA. \n\nOn that date,  Ms.  Skelton,  on behalf of McDermott Will &  Emery,  requested: \n\ncopies of any and all chapters or sections of the Illinois\nDepartment of Revenue Audit Manual ( the \" Audit Manual\")  in\neffect for the taxable years ending December 31,  1998 through\nDecember 31,  2010 relating to the following legal\n\nissue: \n\n1) \n\nThe determination of corporate income tax under the\n\nIllinois Income Tax Act,  35 ILCS 5/ 101 et.  seq. \n\n500 South Second Street,  Springfield,  Illinois 62701 • (\n100 West Randolph Street,  Chicago,  Illinois 60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785- 2771 • \n\nFax: ( 217)  782- 7046\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Catherine Battin\n\nMr.  Jim Nichelson\n\nOctober 30,  2018\n\nPage 2\n\n2) \n\nThe determination of sales and use taxes under the Use Tax\n\nAct,  35 ILCS 105/ 1 et.  seq.;  the Service Use Tax Act,  35 ILCS\n110/ 1 et. seq.;  the Service Occupation Tax Act, 35 ILCS 115/ 1 et. \nseq.;  the Retailer' s Occupation Tax Act, 35 ILCS 120/ 1 et. seq.; \nand the Hotel Operators'  Occupation Tax Act,  35 ILCS 145/ 1 et. \nseq. Ell\n\nOn February 15,  2011,  the Department denied Ms.  Skelton' s request\n\nin its entirety pursuant\n\nto\n\nsections\n\n7( I)( d)( i),  7( 1)( d)( ii),  and 7( 1)( d)( v)  of FOIA ( 5 ILCS 140/ 7( 1)( d)( i), (\n\n1)( d)( ii), \n1)( d)( v) ( West 2010)).  On April 15,  2011,  this office received Ms.  Skelton' s Request for\nReview challenging the Department' s denial. \n\nOn April 25,  2011,  this office sent a copy of the Request for Review to the\nDepartment and asked it to provide a detailed explanation of its legal and factual bases for\ndenying Ms.  Skelton' s request.  On May 10,  2011,  this office received the Department' s written\nresponse and copies of the table of contents for sections of the audit manual for our confidential\nreview.  The Department asserted that although the Internal Revenue Service and several states\nhave public versions of their audit manuals,  the Department did not maintain a separate manual\nfor public disclosure.  On November 13,  2013,  Ms.  Catherine Battin informed this office that Ms. \nSkelton was no longer at McDermott Will &  Emery,  but that the firm remained interested in\nobtaining a resolution to the Request for Review.  On January 10,  2014,  the Department\nsubmitted a supplemental written answer to this office.  On January 15,  2014,  this office\nforwarded the supplemental response to Ms.  Battin.  She did not reply.  On January 4,  2018,  this\noffice requested that the Department provide a copy of the Audit Manual\nconfidential\n\nreview.  On January 12,  2018,  the Department provided the requested records. \n\nfor this office' s\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"  5 ILCS\n140/ 1. 2 ( West 2010). \n\nSection 7( 1)( d)( v)  of FOIA exempts from disclosure: \n\nJanuary 21,  2011),  at\n\n1. \n\nLetter from Julie M.  Skelton to Mr. George Logan,  Freedom [ of]  Information Officer,  FOI Office\n\n\fMs. Catherine Battin\n\nMr. Jim Nichelson\n\nOctober 30,  2018\n\nPage 3\n\nd)  Records in the possession of any public body created in the\ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nv)  disclose unique or specialized investigative techniques\n\nother\n\nthan those generally used and known [* * *] \n\nand\n\ndisclosure would result in demonstrable harm to the agency\nor public body that is the recipient of the request[.] \n\nThe Department asserts that the section 7( 1)( d)( v)  exemption applies to the Audit\n\n1) \n\nthe Department\n\nManual because: (\ncreated for law enforcement purposes; ( 3)  disclosure of the Audit Manual would reveal the\nDepartment' s specialized investigative techniques;  and ( 4)  disclosure would result in\ndemonstrable harm to the Department. \n\nis a law enforcement agency; ( 2)  the Audit Manual was\n\nFOIA does not define \" law enforcement agency.\"  When construing a statute,  the\nprimary purpose is to ascertain and give effect to the intent of the General Assembly.  Southern\nIllinoisan v.  Illinois Department of Public Health,  218 I11.  2d 390,  415,  844 N. E. 2d 1,  14 ( 2006). \nThe best evidence of legislative intent\ngiven its plain,  ordinary and popularly understood meaning.\"  Nelson v.  Kendall County,  2014 IL\n116303, ¶ 23,  10 N. E. 3d 893,  988 ( 2014).  When a term is undefined in a statute,  it is entirely\nappropriate to use a dictionary to help determine its meaning.  Lacey v.  Village of Palatine,  232\nI11.  2d 349,  363,  904 N. E. 2d 18,  26 ( 2009).  The term \" law enforcement\" \npart as: \"[\n\nis the language used in the statute itself,  which must be\n\nt] he detection and punishment of violations of the law.\"  Black' s Law Dictionary ( 10th\n\nis defined in relevant\n\ned.  2014),  available at Westlaw BLACKS.  A note in Black' s Law Dictionary' s definition of\nlaw enforcement\"  provides: \n\nThis term is not limited to the enforcement of criminal\nexample,  the [ Federal]  Freedom of Information Act contains an\n\nlaws.  For\n\nexemption from disclosure for information compiled for law- \n\nenforcement purposes and furnished in confidence.  That\nexemption is valid for the enforcement of a variety of noncriminal\nlaws ( such as national -security laws)  as well as criminal\nlaws.  See\n5 USCA §  552( 6)( 7).  Black' s Law Dictionary ( 10th ed.  2014), \navailable at Westlaw BLACKS. \n\n\fMs.  Catherine Battin\n\nMr. Jim Nichelson\n\nOctober 30,  2018\n\nPage 4\n\nAccordingly,  to establish that it is a law enforcement agency under section 7( 1)( d)  of FOIA,  a\npublic body must prove that it has authority to enforce civil or criminal laws by promoting\ncompliance and/ or detecting violations. \n\nThe Department explained that taxpayers use self- reported data to determine the\n\nreturns.  See 35 ILCS 5/ 904( a) ( West\n\namount of tax they owe.  To compel compliance with tax laws,  the Department conducts its own\ninvestigations,  known as audits,  of the information reported by taxpayers.  The Department has\nauthority to impose penalties on taxpayers for deficient\n2010) (\" As soon as practicable after a return is filed, the Department shall examine it to\ndetermine the correct amount of tax.  If the Department\nreturn is less than the correct amount,  it shall\nissue a notice of deficiency to the taxpayer which\nshall set forth the amount of tax and penalties proposed to be assessed.\").  The Uniform Penalty\nand Interest Act ( 35 ILCS 735/ 3- 1 et seq. ( West 2010)),  provides authority to the Department\nto\nimpose interest and penalties for failure to file or pay taxes,  among other things.  Accordingly, \nthe Department not only detects tax underpayment and compels compliance by seeking payment\nof taxes owed,  but it also may punish those who do not comply with tax laws by imposing\npenalties and interest.  Therefore,  this office concludes that the Department\n\nfinds that the amount of tax shown on the\n\nis a \" law\n\nenforcement agency\"  under section 7( 1)( d)  of FOIA when it is engaged in investigating and\nenforcing compliance with tax laws. \n\nThe Department asserted that the Audit Manual\n\nis for law enforcement purposes, \nas it \" identifies procedures and tactics to assist auditors to conduct successful and accurate audits\nand]  was created so there would be a mechanism to enforce compliance with the State' s self - \nreporting tax system.\" 2\nIn analyzing the application of a law enforcement exemption in the\nFederal FOIA to records in the possession of the Internal Revenue Service ( IRS),  the United\nStates District Court\nenforcing the revenue laws,  it is completely obvious that it is proceeding with an enforcement\npurpose.\"  Sutton v.  Internal Revenue Service,  No.  05 C 7177,  2007 WL 30547,  at * 5 ( N. D.  Ill. \nJanuary 4,  2007) ( Not Reported in F.  Supp.  2d).  Similarly,  it is clear that the Department uses\nthe Audit Manual to enforce tax laws,  and therefore this office concludes that the Audit Manual\nis for the Department' s law enforcement purposes. \n\nfor the Northern District of Illinois noted that \" whenever\n\nthe IRS is\n\nThe Department argued that the Audit Manual contains the Department' s\n\nspecialized investigative techniques because it includes:• \n\nthe accumulated knowledge,  opinions,  and recommendations of\nhundreds of past and present auditors and lawyers,  who have\n\nSobitan,  Assistant Attorney General,  Public Access Bureau ( January 10,  2014),  at 8. \n\n2Letter\n\nfrom Paul Berks,  Deputy General Counsel,  Illinois Department of Revenue,  to Tola\n\n\fMs.  Catherine Battin\n\nMr.  Jim Nichelson\n\nOctober 30,  2018\n\nPage 5\n\nconducted investigations of many taxpayers over many years.  Tlie\ntactics the Department has developed for unearthing misconduct\nand underpayment derive from this accumulated knowledge and\nare not generally known to the public. \n\nj\n\nIn short,  one of the principal purposes of the Audit Manual\n\nis to\n\nshare among the audit staff the procedures and \" investigative\ntools\"  that are not generally known to the taxpayer community. l31\n\nThis office has reviewed the Audit Manual and confirms that. it contains specialized investigative\n\ntechniques that are not generally known to the public.  The Audit Manual provides detailed, \nhighly technical guidance for conducting investigations into the accuracy of taxpayers'  returns. \nAmong other things,  the Audit Manual contains tactics,  procedures,  and investigative tools to\ndetect misconduct and underpayment. 4 Although the Audit Manual also contains quotations of\nlegal references and descriptions of procedural,  rather than investigative,  guidelines for\nconducting audits,  these factual provisions are to be read in conjunction with the specialized\ntechniques and cannot be easily segregated from the sensitive investigative material. \n\nThe final factor in the 7( 1)( d)( v)  analysis is whether disclosure of the Audit\n\nManual would result\n\nin demonstrable harm to the Department. \" Harm\" \n\nis defined as: \"\n\nInjury, \n\nloss,  damage;  material or tangible detriment.\"  Black' s Law Dictionary ( 10th ed.  2014),  available\nat Westlaw BLACKS.  Accordingly,  in order to withhold requested information under section\n7( 1)( d)( v),  a public body must prove that it would suffer injury,  loss,  or damage if the\ninformation were to be disclosed. \n\nThe Department argues that disclosure of the Audit Manual would \" provide a\n\nroadmap on how to avoid detection of unlawful behaviori5 and\n\nwill guide unscrupulous taxpayers on circumventing their\nobligations,  which will cause the State to lose revenue,  honest\n\nSobitan,  Assistant Attorney General,  Public Access Bureau ( January 10,  2014),  at 9. \n\nLetter from Paul Berks,  Deputy General Counsel,  Illinois Department of Revenue,  to Tola\n\nFOIA precludes this office from further describing the substance of the Audit Manual' s contents. \n\nBecause the Department provided the Audit Manual to this office confidentially,  section 9. 5( c)  of\n\nSobitan,  Assistant Attorney General,  Public Access Bureau ( January 10,  2014),  at 11. \n\n5Letter from Paul Berks,  Deputy General Counsel,  Illinois Department of Revenue,  to Tola\n\n\fMs.  Catherine Battin\n\nMr.  Jim Nichelson\n\nOctober 30,  2018\n\nPage 6\n\ntaxpayers to shoulder a disproportionate share of the tax burden, \nfor the State' s taxing authority. 161\nand all taxpayers to lose respect\n\nFederal courts have repeatedly found that certain IRS records,  the disclosure of\n\nwhich could be exploited by tax cheats to evade revenue laws,  are exempt under the Federal\nFOIA.  Illinois courts have recognized that because Illinois' s FOIA statute is based on the\nFederal FOIA statute,  decisions construing the latter,  while not controlling,  may provide helpful\nand relevant precedents in construing the state Act.  See Margolis v.  Director,  Illinois\nDepartment of Revenue,  180 Ill.  App.  3d 1084,  1087 ( 1st Dist.  1989).  Thus,  a review of Federal\nFOIA cases involving IRS records is useful for understanding the risks present in disclosing law\nenforcement records related to tax laws. \n\nThe court in Mayer Brown LLP v.  IR. S.,  562 F. 3d 1190,  1193 ( D. C.  Cir.  2009), \n\naddressed whether\n\nexempt pursuant\n\nrecords related to certain tax shelters and the IRS' s settlement practices were\nto section 7( E)  of the Federal FOIA ( 5 U. S. C. § 552( b)( 7)( E) ( 2006)).  Section\n\n7( E)  exempts from disclosure law enforcement records that \" would disclose techniques and\nprocedures for law enforcement investigations or prosecutions,  or would disclose guidelines for\nlaw enforcement\ninvestigations or prosecutions if such disclosure could reasonably be expected\nto risk circumvention of the law.\"  The court noted that \"[ t] hough the information here does not\nnecessarily provide a blueprint for tax shelter schemes,  it could encourage decisions to violate\nthe law or evade punishment.\"  Mayer Brown LLP,  562 F. 3d at 1193.  The court concluded that\nthe records were not subject\nenormous benefit\nwould risk circumvention of tax laws.  Mayer Brown LLP, 562 F. 3d at 1196. \n\nto potential evaders and past violators hoping to escape punishment\"  and\n\nto mandatory disclosure because they \" would clearly be of\n\nIn Sutton, 2007 WL 30547,  at * 1, \n\nthe plaintiff sought \" all underlying files, work\npapers,  and documents pertaining to\"  the IRS' s notice of deficiency against him,  and in response\nthe IRS withheld discriminant\nfunction (\" DIF\")  scores. \" DIF scoring is the method used by the\nIRS to identify tax returns that should be examined or audited.\"  Sutton,  2007 WL 30547,  at * 3. \nThe court held that none of the information on four specific pages concerning the IRS' s DIF\nscores could be segregated out without disclosing the DIF scores,  and that \"[ g] iven that an\nunscrupulous taxpayer could use DIF information to avoid examination or audit,  the\ndetermination that disclosure of the DIF scores would seriously impair assessment,  collection,  or\nenforcement under the internal revenue laws [ was]  not arbitrary and capricious.\"  Sutton,  2007\nWL 30547,  at * 4. 7\n\n6Letter from Paul Berks,  Deputy General Counsel,  Illinois Department of Revenue,  to Iola\n\nSobitan,  Assistant Attorney General,  Public Access Bureau ( January 10,  2014),  at 10. \n\nIn Sutton, the court analyzed the IRS' s assertion of section 552( b)( 3)  of the Federal FOIA ( 5\n\nU. S. C. §  552( b)( 3) ( 2006) ( exempting from disclosure records that are \" specifically exempted from disclosure by\n\n\fMs.  Catherine Battin\n\nMr. Jim Nichelson\n\nOctober 30,  2018\n\nPage 7\n\nthe IRS]  to scrutinize those returns most likely to reveal\n\nIn Roberts v.  I.R. S.,  584 F.  Supp.  1241,  1243 ( E. D.  Mich.  1984),  the United States\nDistrict Court for the Eastern District of Michigan described the IRS' s Law Enforcement Manual\nas \" certain guidelines which enable [\nnoncompliance.  The guidelines focus upon a variety of characteristics of a given return which\nhave a positive correlation with income tax evasion.\"  The court determined that the IRS was not\nrequired to disclose the Law Enforcement Manual pursuant to section 2( C)  of the Federal FOIA\n5 U. S. C. §  552( a)( 2)( C) ( 1982)),  which exempts from disclosure \" administrative staff manuals\nand instructions to staff that affect a member of the public.\"  The court concluded that \" the\nmaterial contained in the [ Law Enforcement Manual]  is the kind of sensitive law enforcement\ninformation,  disclosure of which will only serve to undermine law enforcement.\"  Roberts,  584 F. \nSupp.  at 1245. \n\nLike the records addressed in the federal cases cited above,  disclosure of the\n\nAudit Manual would make information available that could be used to thwart auditors' \ninvestigations and to perpetrate tax evasion schemes.  Tax evasion not only harms the\nDepartment by hindering its ability to perform its duty of enforcing revenue laws,  it also leads to\nthe tangible loss of revenue owed to the Department and State.  Ms.  Skelton asserted that she\n\nthat was the equivalent of the IRS' s Law\nwas not seeking the portion of the Audit Manual\nEnforcement Manual and that she did not intend \" to publicize the Department' s proprietary\nenforcement information in any way. i8 The specialized techniques described in the Audit\nManual are not segregable from the purely factual material,  however,  so it would not be possible\nfor the Department to provide a version of the Audit Manual that did not disclose or reveal\nspecialized investigative techniques that are not generally known to the public. \n\nAccordingly,  for the reasons stated above,  this office finds that the Department\nis a\n\nhas met its burden of establishing by clear and convincing evidence that the Audit Manual\nlaw enforcement record containing specialized investigative techniques,  the disclosure of which\nwould harm the Department.  Therefore,  this office concludes that the Department did not violate\nFOIA by denying Ms.  Skelton' s request for the Audit Manual pursuant to section 7( 1)( d)( v)  of\nFOIA.  Because this determination is dispositive,  this office need not review the applicability of\nthe other exemptions cited by the Department,  sections 7( 1)( d)( i)  and 7( 1)( d)( ii),  to the\nresponsive\n\nrecords. \n\nstatute\")  and its argument that section 6103( b)( 2)  of the Internal Revenue Code prohibited disclosure of the records\nat\nissue.  26 U. S. C. §  6103( 6)( 2) ( 2006)) ( exempting from disclosure \" standards used or to be used for the selection\nof returns for examination,  or data used or to be used for determining such standards, \nsuch disclosure will seriously impair assessment,  collection,  or enforcement under the internal\n\nif the Secretary determines that\n\nrevenue laws.\"). \n\nthe Attorney General ( April\n\n14,  2011),  at 2. \n\nLetter from Julie M.  Skelton,  McDermott Will &  Emery,  to Public Access Counselor,  Office of\n\n\fs. Catherine Battin\n\nMr.  Jim Nichelson\n\nOctober 30,  2018\n\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at the Springfield address on this letter, ( 217)  524- 7958,  or\nI harter@atg.  state. i I . us. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n13591 f 71 dv proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Internal audit manual sections for tax enforcement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-13591/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOctober 30, 2018\n\nVia electronic mail\n\nMs. Catherine A. Battin\nMcDermott Will & Emery\n444 West Lake Street\n\n[street address redacted for site publication -- see original PDF]\ncbattin@mwe.\n\ncom\n\nVia electronic mail\n\nMr. Jim Nichelson\n\nAssistant General Counsel/ Ethics Officer\n\nIllinois Department of Revenue\n\n101 West Jefferson Street\n\nSpringfield, Illinois 62702\n\njim.nichelson@illinois.gov\n\nRE: FOIA Request for Review — 2011 PAC 13591\n\nDear Ms. Battin and Mr. Nichelson: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Illinois Department of Revenue\nDepartment) to Ms. Julie Skelton's January 21, 2011, FOIA request did not violate FOIA. \n\nOn that date, Ms. Skelton, on behalf of McDermott Will & Emery, requested: \n\ncopies of any and all chapters or sections of the Illinois\nDepartment of Revenue Audit Manual (the \" Audit Manual\") in\neffect for the taxable years ending December 31, 1998 through\nDecember 31, 2010 relating to the following legal\n\nissue: \n\n1) \n\nThe determination of corporate income tax under the\n\nIllinois Income Tax Act, 35 ILCS 5/ 101 et. seq. \n\n2) \n\nThe determination of sales and use taxes under the Use Tax\n\nAct, 35 ILCS 105/ 1 et. seq.; the Service Use Tax Act, 35 ILCS\n110/ 1 et. seq.; the Service Occupation Tax Act, 35 ILCS 115/ 1 et. \nseq.; the Retailer's Occupation Tax Act, 35 ILCS 120/ 1 et. seq.; \nand the Hotel Operators' Occupation Tax Act, 35 ILCS 145/ 1 et. \nseq. Ell\n\nOn February 15, 2011, the Department denied Ms. Skelton's request\n\nin its entirety pursuant\n\nto\n\nsections\n\n7(I)(d)(i), 7(1)(d)(ii), and 7(1)(d)(v) of FOIA (5 ILCS 140/ 7(1)(d)(i), (1)(d)(ii), \n1)(d)(v) (West 2010)). On April 15, 2011, this office received Ms. Skelton's Request for\nReview challenging the Department's denial. \n\nOn April 25, 2011, this office sent a copy of the Request for Review to the\nDepartment and asked it to provide a detailed explanation of its legal and factual bases for\ndenying Ms. Skelton's request. On May 10, 2011, this office received the Department's written\nresponse and copies of the table of contents for sections of the audit manual for our confidential\nreview. The Department asserted that although the Internal Revenue Service and several states\nhave public versions of their audit manuals, the Department did not maintain a separate manual\nfor public disclosure. On November 13, 2013, Ms. Catherine Battin informed this office that Ms. \nSkelton was no longer at McDermott Will & Emery, but that the firm remained interested in\nobtaining a resolution to the Request for Review. On January 10, 2014, the Department\nsubmitted a supplemental written answer to this office. On January 15, 2014, this office\nforwarded the supplemental response to Ms. Battin. She did not reply. On January 4, 2018, this\noffice requested that the Department provide a copy of the Audit Manual\nconfidential\n\nreview. On January 12, 2018, the Department provided the requested records. \n\nfor this office's\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 (West 2010). \n\nSection 7(1)(d)(v) of FOIA exempts from disclosure: \n\nJanuary 21, 2011), at\n\n1. \n\nLetter from Julie M. Skelton to Mr. George Logan, Freedom [ of] Information Officer, FOI Office\n\nd) Records in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nv) disclose unique or specialized investigative techniques\n\nother\n\nthan those generally used and known [* * *] \n\nand\n\ndisclosure would result in demonstrable harm to the agency\nor public body that is the recipient of the request[.] \n\nThe Department asserts that the section 7(1)(d)(v) exemption applies to the Audit\n\n1) \n\nthe Department\n\nManual because: (created for law enforcement purposes; (3) disclosure of the Audit Manual would reveal the\nDepartment's specialized investigative techniques; and (4) disclosure would result in\ndemonstrable harm to the Department. \n\nis a law enforcement agency; (2) the Audit Manual was\n\nFOIA does not define \" law enforcement agency.\" When construing a statute, the\nprimary purpose is to ascertain and give effect to the intent of the General Assembly. Southern\nIllinoisan v. Illinois Department of Public Health, 218 I11. 2d 390, 415, 844 N. E. 2d 1, 14 (2006). \nThe best evidence of legislative intent\ngiven its plain, ordinary and popularly understood meaning.\" Nelson v. Kendall County, 2014 IL\n116303, ¶ 23, 10 N. E. 3d 893, 988 (2014). When a term is undefined in a statute, it is entirely\nappropriate to use a dictionary to help determine its meaning. Lacey v. Village of Palatine, 232\nI11. 2d 349, 363, 904 N. E. 2d 18, 26 (2009). The term \" law enforcement\" \npart as: \"[\n\nis the language used in the statute itself, which must be\n\nt] he detection and punishment of violations of the law.\" Black's Law Dictionary (10th\n\nis defined in relevant\n\ned. 2014), available at Westlaw BLACKS. A note in Black's Law Dictionary's definition of\nlaw enforcement\" provides: \n\nThis term is not limited to the enforcement of criminal\nexample, the [ Federal] Freedom of Information Act contains an\n\nlaws. For\n\nexemption from disclosure for information compiled for law- \n\nenforcement purposes and furnished in confidence. That\nexemption is valid for the enforcement of a variety of noncriminal\n\nAccordingly, to establish that it is a law enforcement agency under section 7(1)(d) of FOIA, a\npublic body must prove that it has authority to enforce civil or criminal laws by promoting\ncompliance and/ or detecting violations. \n\nThe Department explained that taxpayers use self- reported data to determine the\n\nreturns. See 35 ILCS 5/ 904(a) (West\n\namount of tax they owe. To compel compliance with tax laws, the Department conducts its own\ninvestigations, known as audits, of the information reported by taxpayers. The Department has\nauthority to impose penalties on taxpayers for deficient\n2010) (\" As soon as practicable after a return is filed, the Department shall examine it to\ndetermine the correct amount of tax. If the Department\nreturn is less than the correct amount, it shall\nissue a notice of deficiency to the taxpayer which\nshall set forth the amount of tax and penalties proposed to be assessed.\"). The Uniform Penalty\nand Interest Act (35 ILCS 735/ 3- 1 et seq. (West 2010)), provides authority to the Department\nto\nimpose interest and penalties for failure to file or pay taxes, among other things. Accordingly, \nthe Department not only detects tax underpayment and compels compliance by seeking payment\nof taxes owed, but it also may punish those who do not comply with tax laws by imposing\npenalties and interest. Therefore, this office concludes that the Department\n\nfinds that the amount of tax shown on the\n\nis a \" law\n\nenforcement agency\" under section 7(1)(d) of FOIA when it is engaged in investigating and\nenforcing compliance with tax laws. \n\nThe Department asserted that the Audit Manual\n\nis for law enforcement purposes, \nas it \" identifies procedures and tactics to assist auditors to conduct successful and accurate audits\nand] was created so there would be a mechanism to enforce compliance with the State's self - \nreporting tax system.\" 2\nIn analyzing the application of a law enforcement exemption in the\nFederal FOIA to records in the possession of the Internal Revenue Service (IRS), the United\nStates District Court\nenforcing the revenue laws, it is completely obvious that it is proceeding with an enforcement\npurpose.\" Sutton v. Internal Revenue Service, No. 05 C 7177, 2007 WL 30547, at * 5 (N. D. Ill. \nJanuary 4, 2007) (Not Reported in F. Supp. 2d). Similarly, it is clear that the Department uses\nthe Audit Manual to enforce tax laws, and therefore this office concludes that the Audit Manual\nis for the Department's law enforcement purposes. \n\nfor the Northern District of Illinois noted that \" whenever\n\nthe IRS is\n\nThe Department argued that the Audit Manual contains the Department's\n\nspecialized investigative techniques because it includes:• \n\nthe accumulated knowledge, opinions, and recommendations of\n\nconducted investigations of many taxpayers over many years. Tlie\ntactics the Department has developed for unearthing misconduct\nand underpayment derive from this accumulated knowledge and\nare not generally known to the public. \n\nj\n\nIn short, one of the principal purposes of the Audit Manual\n\nis to\n\nshare among the audit staff the procedures and \" investigative\ntools\" that are not generally known to the taxpayer community. l31\n\nThis office has reviewed the Audit Manual and confirms that. it contains specialized investigative\n\ntechniques that are not generally known to the public. The Audit Manual provides detailed, \nhighly technical guidance for conducting investigations into the accuracy of taxpayers' returns. \nAmong other things, the Audit Manual contains tactics, procedures, and investigative tools to\ndetect misconduct and underpayment. 4 Although the Audit Manual also contains quotations of\nlegal references and descriptions of procedural, rather than investigative, guidelines for\nconducting audits, these factual provisions are to be read in conjunction with the specialized\ntechniques and cannot be easily segregated from the sensitive investigative material. \n\nThe final factor in the 7(1)(d)(v) analysis is whether disclosure of the Audit\n\nManual would result\n\nin demonstrable harm to the Department. \" Harm\" \n\nis defined as: \"\n\nInjury, \n\nloss, damage; material or tangible detriment.\" Black's Law Dictionary (10th ed. 2014), available\nat Westlaw BLACKS. Accordingly, in order to withhold requested information under section\n7(1)(d)(v), a public body must prove that it would suffer injury, loss, or damage if the\ninformation were to be disclosed. \n\nThe Department argues that disclosure of the Audit Manual would \" provide a\n\nroadmap on how to avoid detection of unlawful behaviori5 and\n\nwill guide unscrupulous taxpayers on circumventing their\nobligations, which will cause the State to lose revenue, honest\n\nSobitan, Assistant Attorney General, Public Access Bureau (January 10, 2014), at 9. \n\nLetter from Paul Berks, Deputy General Counsel, Illinois Department of Revenue, to Tola\n\nFOIA precludes this office from further describing the substance of the Audit Manual's contents. \n\nBecause the Department provided the Audit Manual to this office confidentially, section 9. 5(c) of\n\ntaxpayers to shoulder a disproportionate share of the tax burden, \nfor the State's taxing authority. 161\nand all taxpayers to lose respect\n\nFederal courts have repeatedly found that certain IRS records, the disclosure of\n\nwhich could be exploited by tax cheats to evade revenue laws, are exempt under the Federal\nFOIA. Illinois courts have recognized that because Illinois's FOIA statute is based on the\nFederal FOIA statute, decisions construing the latter, while not controlling, may provide helpful\nand relevant precedents in construing the state Act. See Margolis v. Director, Illinois\nDepartment of Revenue, 180 Ill. App. 3d 1084, 1087 (1st Dist. 1989). Thus, a review of Federal\nFOIA cases involving IRS records is useful for understanding the risks present in disclosing law\nenforcement records related to tax laws. \n\nThe court in Mayer Brown LLP v. IR. S., 562 F. 3d 1190, 1193 (D. C. Cir. 2009), \n\naddressed whether\n\nexempt pursuant\n\nrecords related to certain tax shelters and the IRS's settlement practices were\nto section 7(E) of the Federal FOIA (5 U. S. C. § 552(b)(7)(E) (2006)). Section\n\n7(E) exempts from disclosure law enforcement records that \" would disclose techniques and\nprocedures for law enforcement investigations or prosecutions, or would disclose guidelines for\nlaw enforcement\ninvestigations or prosecutions if such disclosure could reasonably be expected\nto risk circumvention of the law.\" The court noted that \"[ t] hough the information here does not\nnecessarily provide a blueprint for tax shelter schemes, it could encourage decisions to violate\nthe law or evade punishment.\" Mayer Brown LLP, 562 F. 3d at 1193. The court concluded that\nthe records were not subject\nenormous benefit\nwould risk circumvention of tax laws. Mayer Brown LLP, 562 F. 3d at 1196. \n\nto potential evaders and past violators hoping to escape punishment\" and\n\nto mandatory disclosure because they \" would clearly be of\n\nIn Sutton, 2007 WL 30547, at * 1, \n\nthe plaintiff sought \" all underlying files, work\npapers, and documents pertaining to\" the IRS's notice of deficiency against him, and in response\nthe IRS withheld discriminant\nfunction (\" DIF\") scores. \" DIF scoring is the method used by the\nIRS to identify tax returns that should be examined or audited.\" Sutton, 2007 WL 30547, at * 3. \nThe court held that none of the information on four specific pages concerning the IRS's DIF\nscores could be segregated out without disclosing the DIF scores, and that \"[ g] iven that an\nunscrupulous taxpayer could use DIF information to avoid examination or audit, the\ndetermination that disclosure of the DIF scores would seriously impair assessment, collection, or\nenforcement under the internal revenue laws [ was] not arbitrary and capricious.\" Sutton, 2007\nWL 30547, at * 4. 7\n\n6 Letter from Paul Berks, Deputy General Counsel, Illinois Department of Revenue, to Iola\n\nSobitan, Assistant Attorney General, Public Access Bureau (January 10, 2014), at 10. \n\nIn Sutton, the court analyzed the IRS's assertion of section 552(b)(3) of the Federal FOIA (5\n\nU. S. C. § 552(b)(3) (2006) (exempting from disclosure records that are \" specifically exempted from disclosure by\n\nthe IRS] to scrutinize those returns most likely to reveal\n\nIn Roberts v. I.R. S., 584 F. Supp. 1241, 1243 (E. D. Mich. 1984), the United States\nDistrict Court for the Eastern District of Michigan described the IRS's Law Enforcement Manual\nas \" certain guidelines which enable [\nnoncompliance. The guidelines focus upon a variety of characteristics of a given return which\nhave a positive correlation with income tax evasion.\" The court determined that the IRS was not\nrequired to disclose the Law Enforcement Manual pursuant to section 2(C) of the Federal FOIA\n5 U. S. C. § 552(a)(2)(C) (1982)), which exempts from disclosure \" administrative staff manuals\nand instructions to staff that affect a member of the public.\" The court concluded that \" the\nmaterial contained in the [ Law Enforcement Manual] is the kind of sensitive law enforcement\ninformation, disclosure of which will only serve to undermine law enforcement.\" Roberts, 584 F. \nSupp. at 1245. \n\nLike the records addressed in the federal cases cited above, disclosure of the\n\nAudit Manual would make information available that could be used to thwart auditors' \ninvestigations and to perpetrate tax evasion schemes. Tax evasion not only harms the\nDepartment by hindering its ability to perform its duty of enforcing revenue laws, it also leads to\nthe tangible loss of revenue owed to the Department and State. Ms. Skelton asserted that she\n\nthat was the equivalent of the IRS's Law\nwas not seeking the portion of the Audit Manual\nEnforcement Manual and that she did not intend \" to publicize the Department's proprietary\nenforcement information in any way. i8 The specialized techniques described in the Audit\nManual are not segregable from the purely factual material, however, so it would not be possible\nfor the Department to provide a version of the Audit Manual that did not disclose or reveal\nspecialized investigative techniques that are not generally known to the public. \n\nAccordingly, for the reasons stated above, this office finds that the Department\nis a\n\nhas met its burden of establishing by clear and convincing evidence that the Audit Manual\nlaw enforcement record containing specialized investigative techniques, the disclosure of which\nwould harm the Department. Therefore, this office concludes that the Department did not violate\nFOIA by denying Ms. Skelton's request for the Audit Manual pursuant to section 7(1)(d)(v) of\nFOIA. Because this determination is dispositive, this office need not review the applicability of\nthe other exemptions cited by the Department, sections 7(1)(d)(i) and 7(1)(d)(ii), to the\nresponsive\n\nrecords. \n\nstatute\") and its argument that section 6103(b)(2) of the Internal Revenue Code prohibited disclosure of the records\nat\nissue. 26 U. S. C. § 6103(6)(2) (2006)) (exempting from disclosure \" standards used or to be used for the selection\nof returns for examination, or data used or to be used for determining such standards, \nsuch disclosure will seriously impair assessment, collection, or enforcement under the internal\n\nif the Secretary determines that\n\nrevenue laws.\"). \n\nthe Attorney General (April\n\n14, 2011), at 2. \n\nLetter from Julie M. Skelton, McDermott Will & Emery, to Public Access Counselor, Office of\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on this letter, (217) 524- 7958, or\nI harter@atg. state. i I. us. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n13591 f 71 dv proper sa"}
{"id":840,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-09-21","case_number":null,"request_numbers":["17798"],"title":"Metropolitan Water Reclamation District improperly applied recurrent requester provisions retroactively","filename":"17798, issued September 21, 2018.pdf","rel_path":null,"word_count":2355,"summary":"The requester challenged the Metropolitan Water Reclamation District's designation of her as a 'recurrent requester' under FOIA. The PAC determined that the District improperly applied the recurrent requester provisions retroactively to requests made before the statute's effective date.","plain_summary":"The requester's employer submitted a FOIA request that the public body treated as coming from a \"recurrent requester,\" counting requests submitted before the recurrent-requester provision took effect. The PAC determined that applying the recurrent-requester classification retroactively was improper because it imposed new legal consequences on requests made before the amendment's effective date. Because the public body had already disclosed the requested records, no further action was required.","holding":"The District improperly treated the requester as a recurrent requester by applying the statutory provisions retroactively to conduct that occurred before the law was amended.","legal_question":"Whether a public body may retroactively apply the 'recurrent requester' provisions of FOIA (5 ILCS 140/2(g)) to requests made prior to the effective date of the amendment.","disposition":"violation_found","primary_statute":["5 ILCS 140/2(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":"Mary Polich","pac_outcome":"Improperly treated as recurrent requester","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The dispute concerns the retroactive application of the 'recurrent requester' designation to a citizen who submitted numerous FOIA requests.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_b/Persons-acting-as-a-group/17798%2C%20issued%20September%2021%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","FOIA request","retroactive application","public records"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nSeptember 21,  2018\n\nMs. Mary Polich\nGabriel Environmental Services\n1421 North Elston Avenue\n\n[street address redacted for site publication -- see original PDF]\nMs.  Helen Shields -Wright\n\nHead Assistant Attorney/ FOIA Officer\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\n\nChicago,  Illinois 60611- 3154\n\nRE:  FOIA Request for Review -  2011 PAC 17798\n\nDear Ms. Polich and Ms.  Shields -Wright: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016).  For the reasons explained below, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District of Greater\nChicago ( District)  improperly treated Ms.  Mary Polich' s FOIA request as being from a recurrent\nrequester because it applied the recurrent requester provisions of FOIA retroactively. \n\nOn December 8,  2011,  the District received a FOIA request under the name\n\nMary Polich\"  from the business e- mail account of her husband,  Mr. John Polich.  Mr. Polich is\nan employee of Gabriel Environmental Services ( GES).  On December 14,  2011,  the District\nresponded by notifying Mr.  Polich that the District had designated him as a \" recurrent\n\nrequester\" \n\npursuant\n\nto section 2( g)  of FOIA ( 5 ILCS 140/ 2( g) ( West 2011 Supp.)).  The notification letter\ni] n the year\n\nadvised Mr. Polich that he met the requirements for a recurrent\npreceding the request date * * *  we have received 96 requests from you. il The letter further\nindicated that the District would provide an initial response within 21 business days and \" comply\nwith the request within a reasonable period considering the size and complexity of the request,  in\n\nrequester because \"[\n\nDistrict of Greater Chicago,  to John Polich,  Gabriel Environmental Services ( December 14,  2011). \n\nLetter from Helen Shields - Wright,  Head Assistant Attorney,  Metropolitan Water Reclamation\n\n500 South Second Street,  Springfield,  Illinois 62706 • (\nIllinois,  60601 • (\n100 West Randolph Street,  Chicago, \n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 217)  782- 7046\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Mary Polich\nMs.  Helen Shields -Wright\n\nSeptember 21,  2018\nPage 2\n\naccordance with section 3. 2( c)\"  of\ndid not directly issue a response to Ms.  Polich at that time. \n\nFOIA2 (\n\n5 ILCS 140/ 3. 2( c) ( West 2011 Supp.)).  The District\n\nThe Public Access Bureau forwarded a copy of the Request for Review to the\nDistrict and requested additional\ninformation concerning its receipt and handling of the FOIA\nrequest,  including a clarification as to why the District sent the notification letter to Mr. Polich\nrather than Ms.  Polich.  The District responded,  in pertinent part,  that it construed GES as the\nrequester and issued a response to Mr. Polich because the request was sent from his business e- \nmail account: \n\nThe [ District]  has received 96 requests from GES within the past\nyear and,  as such,  GES falls under the recurrent requester category\nas defined in section 3. 2 of the Act. \n\nAs you can see from the correspondence from employees at\n\nGES,  the named person seeking information and the email\naddressee is not always consistent.  While a copy of an email\nFOIA request was sent to you purportedly from Mary Polich and\nthe actual appeal to you was \" signed\"  b Mary Polich,  it originated\nfrom a \"jpolich\"  per the email address. JJI\n\nfor Review, \nIn her reply to the District' s response to the allegations in the Request\nMs.  Polich stated that she works for GES and shares her husband' s business e- mail account.  She\nfurther stated,  in pertinent part: \n\nMany corporations are much larger than Gabriel,  and could\n\nconsistently need,  for business purposes,  to have individuals on\ntheir staffs cumulatively send more than 96 FOIAs in a year to a\nspecific agency.  Gabriel alone has 5- 6 individuals who regularly\nFOIA IEPA for information,  due to the nature of what each person\ndoes here. 141\n\nDistrict of Greater Chicago,  to John Polich,  Gabriel Environmental Services ( December 14,  2011). \n\n2Letter from Helen Shields -Wright, Head Assistant Attorney,  Metropolitan Water Reclamation\n\nLetter from Ms.  Helen Shields -Wright, Head Assistant Attorney, Metropolitan Water\n\nReclamation District of Greater Chicago,  to Steve Silverman,  Assistant Attorney General,  Public Access Bureau\nJanuary 5,  2012). \n\nAttorney General,  Public Access Bureau ( January 13,  2012). \n\n4E -mail from Mary Polich, Gabriel Environmental Services,  to Steve Silverman,  Assistant\n\n\fMs.  Mary Polich\nMs.  Helen Shields -Wright\nSeptember 21,  2018\n\nPage 3\n\nThe Public Access Bureau subsequently received confirmation that the District\n\ndisclosed records responsive to GES on January 10,  2012;  no copying fees were assessed. \n\nDETERMINATION\n\nDefinition of Recurrent Requester\n\nSection 2( b)  of FOIA ( 5 ILCS 140/ 2( b) ( West 2011 Supp.))  defines a \" person\"  as\nany individual, corporation, partnership,  firm, organization or association, acting individually or\nas a group.\"  Section 2( g)  of FOIA defines a \" recurrent requester\"  as a \" person\"  who, \" in the 12\nmonths immediately preceding the request,  has submitted to the same public body ( i)  a minimum\nof 50 requests for records, ( ii) a minimum of 15 requests for records within a 30 -day period, or\niii) a minimum of 7 requests for records within a 7 -day period.\"  A public body' s time to\nrespond to a request by a recurrent requester is extended to 21 business days after receipt of the\nrequest.  5 ILCS 140/ 3. 2( a) ( West 2016)). 5\n\nComments during the Senate floor debate by one of the co- sponsors for House\n\nBill 1716, which as Public Act 97- 579 added the recurrent requester provision in section 2( g)  to\nFOIA,  indicate that the legislation was intended to ease the strain on public bodies that had been\nheavily burdened by Targe numbers of FOIA requests,  particularly from businesses: \n\nThe sweeping FOIA law that was put into place was outstanding in\nprinciple,  outstanding conceptually,  but,  frankly,  the pendulum had\nswung too far and became very impractical\nmunicipalities and local units of government\nfact,  many local units of government were overwhelmed by\ncommercial FOIA that got in the way of legitimate citizen\ninquiries,  and indeed it overwhelmed the system and taxed the\ntaxpayers because they were --  under a timeline that was entirely\nunreasonable.  Remarks of Sen.  Sandack,  May 30,  2011,  Senate\nDebate on House Bill 1716,  at 75. \n\nto maintain.  And,  in\n\nfor many\n\nMs.  Polich has acknowledged that she submitted her FOIA request in her capacity\nas an employee of GES.  It also is undisputed that Mr. Polich had submitted 96 FOIA requests to\nthe District in his capacity as an employee of GES in the 12 -month period preceding the FOIA\nrequest that Ms. Polish submitted to the District.  Therefore, this office must initially determine\nwhether a public body may properly attribute FOIA requests submitted by individual employees\n\n5In contrast,  a public body must respond to most other types of requests within 5 business days\n\nafter receipt of the request unless it extends the time to respond by an additional\n140/ 3( d) ( West 2010). \n\nfive business days.  5 1LCS\n\n\fMs.  Mary Polich\nMs. Helen Shields -Wright\n\nSeptember 21,  2018\n\nPage 4\n\nin their employment capacity to their business employer, and classify the business employer as a\nrecurrent requester under section 2( g)  based on the cumulative number of FOIA requests. \n\nBecause Mr. Polich and Ms. Polich were acting as employees of GES rather than\nacting individually,  this office concludes that all their FOIA requests are attributable to GES for\nthe purposes of section 2( g)  of FOIA.  We note that classifying each individual employee who\nsubmits a FOIA request in their employment capacity as a separate \" person\"  under section 2( g) \nwould enable any business with a sufficiently large number of employees to overwhelm a public\nbody with FOIA requests.  For example,  a business with 500 employees could submit 3, 000\nFOIA requests to a public body in the names of individual employees in a 7 -day period without\nany of the individual employees or the business meeting the definition of a \" recurrent requester\" \npursuant to section 2( g).  Construing section 2( g)  in such a manner would undermine the\nlegislative intent of Public Act 97- 579,  and possibly yield absurd results. \n\nApplication of Public Act 97- 579\n\nNext, we must determine whether FOIA requests submitted on behalf of GES by\n\nMr. Polich before August 26,  2011,  the effective date of the \" recurrent requester\"  FOIA\namendment,  may be used to classify GES as a recurrent requester.  The District has advised this\noffice that Mr. Polich has submitted only nine FOIA requests since August 26,  2011.  Therefore, \nGES only may be properly classified as a recurrent requester based on Mr. Polich' s 96 FOIA\nrequests to the District in the year preceding Ms.  Polich' s FOIA request if section 2( g)  applies\nretroactively. \n\nIn Commonwealth Edison Company v.  Will County Collector,  196 Ill. 2d 27\n\nIn doing so,  the court adopted the\n\n2001)  the Illinois Supreme Court considered the issue of whether statutory amendments that\naffect tax rates should be given retroactive application. \nretroactivity analysis used by the United States Supreme Court in Landgraf v.  USI Film\nProducts,  511 U. S.  244,  114 S. Ct.  1483, ( 1994).  Under the Landgraf analysis,  a court\nto whether the legislature has expressly prescribed the temporal\nclearly intended to be retroactive or to be prospective only), and, if so,  gives effect to the\nlegislative intent,  absent a constitutional prohibition.  If the legislature has not indicated the reach\nof a statute or amendment, \" then the court must determine whether applying the statute would\nhave a retroactive impact,  i.e., ' whether it would impair rights a party possessed when he acted, \nincrease a party's liability for past conduct,  or impose new duties with respect to transactions\nalready completed.' ,  Commonwealth Edison,  196 Ill 2d at 38,  quoting Landgraf 511 U. S.  at\n280,  114 S.  Ct. at 1505. \n\nreach of a statute ( whether it is\n\nlooks first\n\nMore recently, the Illinois Supreme Court in Caveney v.  Bower, 207 Ill. 2d 82\n\n2003),  stated that through section 4 of the Statute on Statutes ( 5 ILCS 70/4) ( West 2002)),  the\nGeneral Assembly has indicated the \" temporal reach of every amended statute.\" ( Emphasis in\noriginal.)  Caveney,  207 III.  2d at 92.  The court stated that \"[ s] ection 4 represents a clear\n\n\fMs.  Mary Polich\nMs. Helen Shields -Wright\nSeptember 21,  2018\n\nPage 5\n\nlegislative directive as to * * * \nnature may be applied retroactively, while those that are substantive may not.\"  Caveney, 207 Ill. \n2d at 92. \n\nstatutory amendments and repeals:  those that are procedural\n\nin\n\nA review of the language of Public Act 97- 579 confirms that the General\n\nreach of the \" recurfentrequester\"  provisions\n\nAssembly did not specifically indicate the temporal\nin the amendment.  Therefore,  the question is whether the \" recurrent requester\"  amendment\nprocedural or substantive in nature.  A procedural change in the law generally prescribes a\nmethod of enforcing rights or involves pleadings,  evidence and practice.  Ores v.  Kennedy,  218\nI11.  App.  3d 866 ( 1991).  A substantive change in law establishes,  creates or defines rights. \nSchwieckert v. AG Services ofAmerica,  Inc.,  355 Ill. App.  3d 439,  443 ( 2005),  quoting Ogdon v. \nGianakos,  415 Ill. 591,  595 ( 1953);  see also Perry v.  Dep' t of Financial and Professional\nRegulation, 2018 IL 122349, ¶ 71, \ninformation that is accessible[ ]\"  under FOIA are substantive changes). \n\n2018) ( amendments that \" alter the scope of\n\nN. 3d. (\n\nis\n\nFOIA guarantees Illinois citizens the right to full and complete information\n\nregarding the affairs of government.  Section 1 of FOIA ( 5 ILCS 140/ 1) ( West 2010))  provides, \nin pertinent part: \n\nRestraints on access to information,  to the extent permitted\nby this Act, are limited exceptions to the principle that the people\nof this State have a right to full disclosure of information relating\nto the decisions,  policies,  procedures,  rules,  standards,  and other\naspects of government activity that affect the conduct of\ngovernment and the lives of any or all of the people.  The\nprovisions of this Act shall be construed in accordance with this\nprinciple.  This Act shall be construed to require disclosure of\nrequested information as expediently and efficiently as possible\nand adherence to the deadlines established in this Act.\" \n\nIn this situation,  the District' s consideration of FOIA requests submitted prior to\nAugust 26,  2011,  in determining whether GES was a \" recurrent requester\"  imposed an adverse\nconsequence on GES for its otherwise lawful conduct.  The District' s consideration of the FOIA\nrequests,  therefore,  has a substantive effect.  Moreover,  even if the recurrent requester\namendment could be construed as purely procedural,  courts have concluded that an amendment\ncannot be applied retroactively if the amended statute has a retroactive impact by attaching \" new\nlegal consequences to events completed before the statute was changed.\"  Schwieckert, 355 111. \nApp.  3d at 444.  Here,  if applied retroactively,  the recurrent requester provision would impose\nrestrictions on the availability of information to a requester based on past lawful conduct,  the\nFOIA requests made prior to August 26,  2011,  when the number or frequency of requests made\nby a requester was immaterial.  Accordingly,  this office concludes that the District improperly\n\n\fs. Mary Polich\nMs. Helen Shields -Wright\n\nSeptember 21,  2018\n\nPage 6\n\ntreated Ms. Polich' s December 8,  2011,  as a request by a recurrent requester.  Because the\nDistrict subsequently responded to the FOIA request at issue,  no further action is necessary. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions,  you\nmay contact me at ( 312)  814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n17798 f 2g recurrent req improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A company, Gabriel Environmental Services (GES), was labeled a 'recurrent requester' by a government agency based on requests made by an employee before the law creating that category took effect. The Illinois Attorney General's Public Access Bureau ruled that the agency improperly applied the recurrent requester provisions retroactively, because the law did not apply to requests submitted before its effective date. The Bureau issued this determination, noting that the agency had already disclosed the requested records, but did not state whether the case was closed or take any further action.","card_headline":"Retroactive application of recurrent requester status","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-17798/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nSeptember 21, 2018\n\nMs. Mary Polich\nGabriel Environmental Services\n1421 North Elston Avenue\n\n[street address redacted for site publication -- see original PDF]\nMs. Helen Shields -Wright\n\nHead Assistant Attorney/ FOIA Officer\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\n\nChicago, Illinois 60611- 3154\n\nRE: FOIA Request for Review - 2011 PAC 17798\n\nDear Ms. Polich and Ms. Shields -Wright: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016). For the reasons explained below, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District of Greater\nChicago (District) improperly treated Ms. Mary Polich's FOIA request as being from a recurrent\nrequester because it applied the recurrent requester provisions of FOIA retroactively. \n\nOn December 8, 2011, the District received a FOIA request under the name\n\nMary Polich\" from the business e- mail account of her husband, Mr. John Polich. Mr. Polich is\nan employee of Gabriel Environmental Services (GES). On December 14, 2011, the District\nresponded by notifying Mr. Polich that the District had designated him as a \" recurrent\n\nrequester\" \n\npursuant\n\nto section 2(g) of FOIA (5 ILCS 140/ 2(g) (West 2011 Supp.)). The notification letter\ni] n the year\n\nadvised Mr. Polich that he met the requirements for a recurrent\npreceding the request date * * * we have received 96 requests from you. il The letter further\nindicated that the District would provide an initial response within 21 business days and \" comply\nwith the request within a reasonable period considering the size and complexity of the request, in\n\nrequester because \"[\n\nDistrict of Greater Chicago, to John Polich, Gabriel Environmental Services (December 14, 2011). \n\nLetter from Helen Shields - Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\naccordance with section 3. 2(c)\" of\ndid not directly issue a response to Ms. Polich at that time. \n\nFOIA2 (5 ILCS 140/ 3. 2(c) (West 2011 Supp.)). The District\n\nThe Public Access Bureau forwarded a copy of the Request for Review to the\nDistrict and requested additional\ninformation concerning its receipt and handling of the FOIA\nrequest, including a clarification as to why the District sent the notification letter to Mr. Polich\nrather than Ms. Polich. The District responded, in pertinent part, that it construed GES as the\nrequester and issued a response to Mr. Polich because the request was sent from his business e- \nmail account: \n\nThe [ District] has received 96 requests from GES within the past\nyear and, as such, GES falls under the recurrent requester category\nas defined in section 3. 2 of the Act. \n\nAs you can see from the correspondence from employees at\n\nGES, the named person seeking information and the email\naddressee is not always consistent. While a copy of an email\nFOIA request was sent to you purportedly from Mary Polich and\nthe actual appeal to you was \" signed\" b Mary Polich, it originated\nfrom a \"jpolich\" per the email address. JJI\n\nfor Review, \nIn her reply to the District's response to the allegations in the Request\nMs. Polich stated that she works for GES and shares her husband's business e- mail account. She\nfurther stated, in pertinent part: \n\nMany corporations are much larger than Gabriel, and could\n\nconsistently need, for business purposes, to have individuals on\ntheir staffs cumulatively send more than 96 FOIAs in a year to a\nspecific agency. Gabriel alone has 5- 6 individuals who regularly\nFOIA IEPA for information, due to the nature of what each person\ndoes here. 141\n\nDistrict of Greater Chicago, to John Polich, Gabriel Environmental Services (December 14, 2011). \n\n2 Letter from Helen Shields -Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nLetter from Ms. Helen Shields -Wright, Head Assistant Attorney, Metropolitan Water\n\nReclamation District of Greater Chicago, to Steve Silverman, Assistant Attorney General, Public Access Bureau\n\nThe Public Access Bureau subsequently received confirmation that the District\n\ndisclosed records responsive to GES on January 10, 2012; no copying fees were assessed. \n\nDETERMINATION\n\nDefinition of Recurrent Requester\n\nSection 2(b) of FOIA (5 ILCS 140/ 2(b) (West 2011 Supp.)) defines a \" person\" as\nany individual, corporation, partnership, firm, organization or association, acting individually or\nas a group.\" Section 2(g) of FOIA defines a \" recurrent requester\" as a \" person\" who, \" in the 12\nmonths immediately preceding the request, has submitted to the same public body (i) a minimum\nof 50 requests for records, (ii) a minimum of 15 requests for records within a 30 -day period, or\niii) a minimum of 7 requests for records within a 7 -day period.\" A public body's time to\nrespond to a request by a recurrent requester is extended to 21 business days after receipt of the\nrequest. 5 ILCS 140/ 3. 2(a) (West 2016)). 5\n\nComments during the Senate floor debate by one of the co- sponsors for House\n\nBill 1716, which as Public Act 97- 579 added the recurrent requester provision in section 2(g) to\nFOIA, indicate that the legislation was intended to ease the strain on public bodies that had been\nheavily burdened by Targe numbers of FOIA requests, particularly from businesses: \n\nThe sweeping FOIA law that was put into place was outstanding in\nprinciple, outstanding conceptually, but, frankly, the pendulum had\nswung too far and became very impractical\nmunicipalities and local units of government\nfact, many local units of government were overwhelmed by\ncommercial FOIA that got in the way of legitimate citizen\ninquiries, and indeed it overwhelmed the system and taxed the\ntaxpayers because they were -- under a timeline that was entirely\nunreasonable. Remarks of Sen. Sandack, May 30, 2011, Senate\nDebate on House Bill 1716, at 75. \n\nto maintain. And, in\n\nfor many\n\nMs. Polich has acknowledged that she submitted her FOIA request in her capacity\nas an employee of GES. It also is undisputed that Mr. Polich had submitted 96 FOIA requests to\nthe District in his capacity as an employee of GES in the 12 -month period preceding the FOIA\nrequest that Ms. Polish submitted to the District. Therefore, this office must initially determine\nwhether a public body may properly attribute FOIA requests submitted by individual employees\n\n5 In contrast, a public body must respond to most other types of requests within 5 business days\n\nin their employment capacity to their business employer, and classify the business employer as a\nrecurrent requester under section 2(g) based on the cumulative number of FOIA requests. \n\nBecause Mr. Polich and Ms. Polich were acting as employees of GES rather than\nacting individually, this office concludes that all their FOIA requests are attributable to GES for\nthe purposes of section 2(g) of FOIA. We note that classifying each individual employee who\nsubmits a FOIA request in their employment capacity as a separate \" person\" under section 2(g) \nwould enable any business with a sufficiently large number of employees to overwhelm a public\nbody with FOIA requests. For example, a business with 500 employees could submit 3, 000\nFOIA requests to a public body in the names of individual employees in a 7 -day period without\nany of the individual employees or the business meeting the definition of a \" recurrent requester\" \npursuant to section 2(g). Construing section 2(g) in such a manner would undermine the\nlegislative intent of Public Act 97- 579, and possibly yield absurd results. \n\nApplication of Public Act 97- 579\n\nNext, we must determine whether FOIA requests submitted on behalf of GES by\n\nMr. Polich before August 26, 2011, the effective date of the \" recurrent requester\" FOIA\namendment, may be used to classify GES as a recurrent requester. The District has advised this\noffice that Mr. Polich has submitted only nine FOIA requests since August 26, 2011. Therefore, \nGES only may be properly classified as a recurrent requester based on Mr. Polich's 96 FOIA\nrequests to the District in the year preceding Ms. Polich's FOIA request if section 2(g) applies\nretroactively. \n\nIn Commonwealth Edison Company v. Will County Collector, 196 Ill. 2d 27\n\nIn doing so, the court adopted the\n\n2001) the Illinois Supreme Court considered the issue of whether statutory amendments that\naffect tax rates should be given retroactive application. \nretroactivity analysis used by the United States Supreme Court in Landgraf v. USI Film\nProducts, 511 U. S. 244, 114 S. Ct. 1483, (1994). Under the Landgraf analysis, a court\nto whether the legislature has expressly prescribed the temporal\nclearly intended to be retroactive or to be prospective only), and, if so, gives effect to the\nlegislative intent, absent a constitutional prohibition. If the legislature has not indicated the reach\nof a statute or amendment, \" then the court must determine whether applying the statute would\nhave a retroactive impact, i.e., ' whether it would impair rights a party possessed when he acted, \nincrease a party's liability for past conduct, or impose new duties with respect to transactions\nalready completed.', Commonwealth Edison, 196 Ill 2d at 38, quoting Landgraf 511 U. S. at\n280, 114 S. Ct. at 1505. \n\nreach of a statute (whether it is\n\nlooks first\n\nMore recently, the Illinois Supreme Court in Caveney v. Bower, 207 Ill. 2d 82\n\n2003), stated that through section 4 of the Statute on Statutes (5 ILCS 70/4) (West 2002)), the\nGeneral Assembly has indicated the \" temporal reach of every amended statute.\" (Emphasis in\noriginal.) Caveney, 207 III. 2d at 92. The court stated that \"[ s] ection 4 represents a clear\n\nlegislative directive as to * * * \nnature may be applied retroactively, while those that are substantive may not.\" Caveney, 207 Ill. \n2d at 92. \n\nstatutory amendments and repeals: those that are procedural\n\nin\n\nA review of the language of Public Act 97- 579 confirms that the General\n\nreach of the \" recurfentrequester\" provisions\n\nAssembly did not specifically indicate the temporal\nin the amendment. Therefore, the question is whether the \" recurrent requester\" amendment\nprocedural or substantive in nature. A procedural change in the law generally prescribes a\nmethod of enforcing rights or involves pleadings, evidence and practice. Ores v. Kennedy, 218\nI11. App. 3d 866 (1991). A substantive change in law establishes, creates or defines rights. \nSchwieckert v. AG Services ofAmerica, Inc., 355 Ill. App. 3d 439, 443 (2005), quoting Ogdon v. \nGianakos, 415 Ill. 591, 595 (1953); see also Perry v. Dep' t of Financial and Professional\nRegulation, 2018 IL 122349, ¶ 71, \ninformation that is accessible[ ]\" under FOIA are substantive changes). \n\n2018) (amendments that \" alter the scope of\n\nN. 3d. (is\n\nFOIA guarantees Illinois citizens the right to full and complete information\n\nregarding the affairs of government. Section 1 of FOIA (5 ILCS 140/ 1) (West 2010)) provides, \nin pertinent part: \n\nRestraints on access to information, to the extent permitted\nby this Act, are limited exceptions to the principle that the people\nof this State have a right to full disclosure of information relating\nto the decisions, policies, procedures, rules, standards, and other\naspects of government activity that affect the conduct of\ngovernment and the lives of any or all of the people. The\nprovisions of this Act shall be construed in accordance with this\nprinciple. This Act shall be construed to require disclosure of\nrequested information as expediently and efficiently as possible\nand adherence to the deadlines established in this Act.\" \n\nIn this situation, the District's consideration of FOIA requests submitted prior to\nAugust 26, 2011, in determining whether GES was a \" recurrent requester\" imposed an adverse\nconsequence on GES for its otherwise lawful conduct. The District's consideration of the FOIA\nrequests, therefore, has a substantive effect. Moreover, even if the recurrent requester\namendment could be construed as purely procedural, courts have concluded that an amendment\ncannot be applied retroactively if the amended statute has a retroactive impact by attaching \" new\nlegal consequences to events completed before the statute was changed.\" Schwieckert, 355 111. \nApp. 3d at 444. Here, if applied retroactively, the recurrent requester provision would impose\nrestrictions on the availability of information to a requester based on past lawful conduct, the\nFOIA requests made prior to August 26, 2011, when the number or frequency of requests made\nby a requester was immaterial. Accordingly, this office concludes that the District improperly\n\ntreated Ms. Polich's December 8, 2011, as a request by a recurrent requester. Because the\nDistrict subsequently responded to the FOIA request at issue, no further action is necessary. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, you\nmay contact me at (312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n17798 f 2g recurrent req improper mun"}
{"id":841,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-21","case_number":null,"request_numbers":["26247"],"title":"SIU School of Medicine properly withheld animal training emails under 7(1)(f)","filename":"26247, issued February 21, 2017.pdf","rel_path":null,"word_count":1895,"summary":"The Physicians Committee for Responsible Medicine challenged the Southern Illinois University School of Medicine's withholding of records regarding animal use in its residency program. The PAC determined that the School of Medicine properly withheld the records under the preliminary drafts and deliberative process exemption.","plain_summary":"The Physicians Committee for Responsible Medicine requested records from the Southern Illinois University School of Medicine about animal use in medical training. The school withheld some emails, claiming they were internal drafts or deliberative communications. The Attorney General's office agreed that the school followed the law and was allowed to keep those specific documents private.","holding":"The Southern Illinois University School of Medicine did not violate FOIA by withholding records under section 7(1)(f).","legal_question":"Whether the School of Medicine properly applied the section 7(1)(f) exemption to withhold internal communications regarding the use of animals in a residency program.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Southern Illinois University School of Medicine","requesting_party":"Physicians Committee for Responsible Medicine","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request sought records and communications concerning the use of animals in the School of Medicine's emergency medicine residency program.","ocr_status":"ok","ocr_quality":92.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_e/26247%2C%20issued%20February%2021%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["deliberative process","preliminary drafts","university records","FOIA exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 21,  2017\n\nVitt electronic mail\n\nMr. Mark Kennedy\nDirector of Legal Affairs\n\nPhysicians Committee for Responsible Medicine\n\n5100 Wisconsin Avenue,  NW Suite 400\n\nWashington,  District of Columbia 20016\n\nmkennedy@perm. org\n\nVia electronic mail\n\nMr.  Frank Martinez\n\nAssociate General Counsel and FOIA Officer\n\nSouthern Illinois University School of Medicine\n801 North Rutledge Street\n\n[street address redacted for site publication -- see original PDF]\nfmartinez@siumed. edu\n\nRE:  FOIA Request\n\nfor Review — 2013 PAC 26247\n\nDear Mr.  Kennedy and Mr. Martinez: \n\nThis determination is issued pursuant to section 9. 5( t)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).  For the reasons stated below,  the\n\nPublic Access Bureau concludes that the response by the Southern Illinois University\nUniversity)  School of Medicine ( School of Medicine)  to the FOIA request submitted by the\nPhysicians Committee for Responsible Medicine ( Committee)  on September 12,  2013.  did not\n\nviolate the requirements of FOIA. \n\nOn that date,  the Committee submitted a FOIA request to the School of Medicine\n\nseeking various records regarding the School of Medicine' s use of animals in its emergency\nmedicine residency program,  including communications from the School of Medicine' s Office of\nthe Dean and the Office of the Public Affairs related to this issue.  On September 26, 2016,  the\nSchool of Medicine provided some responsive records but withheld others pursuant to section\n\n7( 1)(\n\n1)  of FOIA ( 5 ILCS 140/ 7( 1 )(\n\nf) ( West 2012)).  The Committee' s Request for Review\n\ndisputes the withholding of these records. \n\n500 South Second Street.  Springfield. \n\nIllinois 62706 • \n\n1217)  782- 1090 •  TTY:  12171 785 - 2771 • \n\nFax: ( 217)  782- 7( 146\n\n100 West Randolph Street.  Chicago.  Illinois.  606( 11 • \n\n13121814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax:  1312)  814- 3806\n\n1001 Est Main.  Carbondale.  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Mark Kennedy\nMr.  Frank Martinez\n\nFebruary 21,  2017\nPage 2\n\nOn October 9.  2013,  this office sent a copy of the Request\n\nfor Review to the\n\nSchool of Medicine and requested copies of the records that were withheld,  for our confidential\n\nreview,  together with a detailed explanation of the applicability of section 7( 1)(\noffice received those materials on October 18,  2013.  On October 22,  2013,  we forwarded a\ncopy of the School of Medicine' s response to the Committee;  the Committee did not reply. \n\nf)  of FOIA.  This\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n1. 2 ( West 2012).  A public body \" has the burden\n\nhe open to inspection or copying.\" \nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/\n\n1. 2 ( West 2012). \n\n5 ILCS 140/\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure \" [ p] reliminary drafts,  notes, \n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated,  except\nthat a specific record or relevant portion of a record shalt not be\nexempt when the record is publicly cited and identified by the head of the public body.\" \nEmphasis added.).  The section 7( 1)(\nexemption in the federal FOIA ( 5 U. S. C. § 552( b)( 5) ( West 2014)),'  which applies to \" inter-  and\nintra -agency predecisional and deliberative material.\"  Harwood v.  McDonough,  344 III.  App.  3d\n242,  247 ( 1st Dist.  2003).  The exemption is \" intended to protect the communications process\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\"  Harwood,  344111.  App.  3d at 248. \n\nto the deliberative process\n\nf) exemption is equivalent\n\nRelying on the Illinois Appellate Court' s decision in Dumke v.  City of Chicago. \n2013 IL App ( 1`\nt)  121668,  994 N. E. 2d 573 ( 2013),  the Committee asserted in its Request for\nReview that the School of Medicine waived the exemption from disclosure found in section\n\n7(\n\n1)(\n\nf)  because the School of Medicine' s director of public affairs — who the Committee argued\n\nis the duly authorized designee of the head of the School of Medicine —  issued a public statement\nregarding its evaluation of the use of animals in its emergency medicine residency program. \n\nBecause Illinois'  FOIA statute is based on the federal FOIA statute,  decisions construing the\n\nlatter,  while not controlling, may provide helpful and relevant precedents in construing the state Act.  Margolis v\nDirector,  ill.  Department of Revenue,  180 111.  App.  3d 1084.  1087 ( 1st Dist.  1989). \n\n\fMr.  Mark Kennedy\nMr.  Frank Martinez. \n\nFebruary 21,  2017\nPage 3\n\nSpecifically.  the Committee argued: \n\nU] nder the statute,  Ms.  Carlson.  as director of SIU' s Office of\n\nPublic Affairs is the \" duly authorized designee\"  authorized to\nspeak for President,  Glenn Poshard,  Ph. D.,  the ' head [ of] the public\n\nbody,\"  SIU.  Because Ms.  Carlson has publicly cited and identified\nSIU' s evaluation of its training methods and SIU' s investigation\ninto its methods of preparing physician trainees for patient care, \nSIU has waived exemption 7( 1) 0)  with respect to the evaluation\nand the investigation.  In Dirmke,  the court explained that \"[ b] oth\n\ncite'  and ' identify'  have a plain and ordinary meaning,  as well as a\ncommon understanding,\" * * *, \nrecord or portion thereof'  is ' publicly cited and identified,'  it loses\nits exemption regardless of whether the communication was\n\nif the communication, \n\nand * * * \"\n\nadopted or incorporated\n\nby the agency.\" [ ]  Under these facts and\ncircumstances,  it was inappropriate for SIU to invoke exemption\n\n7( 1) 0)  to withhold communications related to its evaluation and\ninvestigation of SIU' s training methods. 2 • \n\nHowever. the School of Medicine asserted in its response to this office that: \n\nMs.  Carlson was not acting on behalf of President Proshard when\nshe communicated with the media.  but was merely acting in her\nrole as Director of the Office of Public Affairs. * * *  More\nimportantly,  Ms.  Carlson did not comment publically about or cite\nthe emails in question. [ The withheld a - mails provided to the\n\nPublic Access Bureau for confidential\n\nreview in]  Exhibit No.  1 and\n\nExhibit No.  3 have no correlation to the public statement and,  in\n\nany event.  she made no reference to these emails in the public\nstatement.  Likewise.  Exhibit No. 2 deals with changes being made\nto a subsequent public statement,  not the one at\npoint did Ms.  Carlson reference or cite to said email.\" 3\n\nissue.  and at no\n\nMedicine], \n\nto Public Access Counselor.  Office of the Attorney General ( September 27,  2013).  at 3. \n\nLetter from Mark Kennedy. [ Director of Legal Affairs,  Physicians Committee for Kesponsible\n\nLetter\n\nfrom Frank Martinez,  Associate General Counsel and FOIA Officer, [ SIU School of\n\nMedicine],  to Shari West,  Assistant Attorney General,  Public Access Bureau,  Office of the, Attorney General\nOctober\n\n18.  2013),  at 2. \n\n\fMr. Mark Kennedy\nMr. Frank Martinez\n\nFebruary 21,  2017\nPage 4\n\nThis office has reviewed the e- mails in question and,  as a preliminary matter, has\n\ndetermined that they constitute pre -decisional and deliberative records in which opinions and\nrecommendations are expressed and that they contain discussions relating to the School of\nMedicine' s policies or actions.  Therefore,  this office must determine whether the public\nstatement issued by the School of Medicine' s director of public affairs regarding the evaluation\nof the use of animals in its emergency medicine residency program waived the applicability of\nthe section 7( 1)(\n\nf) exemption. \n\nSection 2( e)  of FOIA ( West 2012))  defines the \"[ h] ead of the public body\"  as the\npresident,  mayor,  chairman,  presiding officer,  director,  superintendent,  manager,  supervisor or\nindividual otherwise holding primary executive and administrative authority for the public body, \nor such person' s duly authorized designee.\"  As discussed below,  even if the director of public\naffairs could be considered the duly authorized designee of the University,  there is no indication\nthat the director of public affairs \" publicly cited and identified\"  the e- mails at issue for purposes\nof section 7( 1)(\n\nf). \n\nIn Dumke,  2013 IL App ( 1m)  121668,  994 N. E. 2d 573 ( 2013),  an Illinois\n\nAppellate Court considered whether comments made by the mayor of the City of Chicago ( City) \nduring a press conference on a consultant' s report of the City' s police department operations\nwaived the report from being withheld under section 7( 1)(\n1).  The court held that because the\nmayor directly referenced the consultant's report in a press conference as the basis for the City's\ndecision to reassign police officers and issued a press release that also expressly cited the report, \nthe report was no longer protected by the section 7( l)(\n\nt)  exemption.  Specifically,  the court\n\nstated: \n\nMayor Daley publicly cited and identified the consultants'  study\nand resulting report in the press conference and press release.  He\nmentioned and brought forward the report as support for his\nreorganization plan.  Not only did Mayor Daley cite and identify\nthe report,  he acknowledged and commended its authors.  Daunke, \n2013 IL App ( I \")  121668, ¶ 28,  994 N. E. 2d at 583. \n\nin Harwood held that comments made by the head of the public body,  and\n\nIn contrast,  the court\nthe Governor, citing information from a one- page executive summary of the report at issue in\nthat matter,  did not waive the applicability of section 7( 1)(\nf).  The Court emphasized that the\ncomments did not cite the \" complete,  full\"  report.  Harwood,  344 111.  App.  3d at 249. \n\nHere,  the School of Medicine has specifically asserted that Ms.  Carlson did not\ncomment publically about or cite the e- mails at issue when she issued a public statement to the\nmedia regarding the School of Medicine' s use of animals in its emergency medicine residency\n\n\fr. Mark Kennedy\nMr.  Frank Martinez\n\nFebruary 21,  2017\nPage 5\n\nissued by Ms.  Carlson that the\n\nprogram.  Our review of these e- mails and the public statement\nCommittee provided to this office with its Request for Review confirm the School of Medicine's\nassertion.  Under the plain language of the exemption,  the head of a public body must cite a\nspecific record or relevant portion of a record[ ]\" \n5 ILCS 140/ 7( 1 )(\nto a specific record does not preclude a public body from withholding that specific record if it\nfalls within the section of the exemption.  Therefore.  the Committee' s reliance on Dunike is\nmisplaced,  and we conclude that the School of Medicine did not improperly withhold the e- mails\nin question under section 7( 1)(\n\nf) ( West 2012).  A public statement about a particular subject without reference\n\nto waive section 7( 1)(\n\nf). ( Emphasis added.) \n\nf)  of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. \nImail at the Chicago address listed on the first page of this letter or by e- mail at\nsbarnaby@atg. state. il. us. \n\natg. state. il. us.  This letter serves to close this file. \n\nIf you have any questions.  you may contact me by\n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant -Attorney General\nPublic Access Bureau\n\n26247 f 71f proper univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on animal use in a medical residency program","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-26247/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 21, 2017\n\nVitt electronic mail\n\nMr. Mark Kennedy\nDirector of Legal Affairs\n\nPhysicians Committee for Responsible Medicine\n\n5100 Wisconsin Avenue, NW Suite 400\n\nWashington, District of Columbia 20016\n\nmkennedy@perm. org\n\nVia electronic mail\n\nMr. Frank Martinez\n\nAssociate General Counsel and FOIA Officer\n\nSouthern Illinois University School of Medicine\n801 North Rutledge Street\n\n[street address redacted for site publication -- see original PDF]\nfmartinez@siumed. edu\n\nRE: FOIA Request\n\nfor Review — 2013 PAC 26247\n\nDear Mr. Kennedy and Mr. Martinez: \n\nThis determination is issued pursuant to section 9. 5(t) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons stated below, the\n\nPublic Access Bureau concludes that the response by the Southern Illinois University\nUniversity) School of Medicine (School of Medicine) to the FOIA request submitted by the\nPhysicians Committee for Responsible Medicine (Committee) on September 12, 2013. did not\n\nviolate the requirements of FOIA. \n\nOn that date, the Committee submitted a FOIA request to the School of Medicine\n\nseeking various records regarding the School of Medicine's use of animals in its emergency\nmedicine residency program, including communications from the School of Medicine's Office of\nthe Dean and the Office of the Public Affairs related to this issue. On September 26, 2016, the\nSchool of Medicine provided some responsive records but withheld others pursuant to section\n\n7(1)(1) of FOIA (5 ILCS 140/ 7(1)(f) (West 2012)). The Committee's Request for Review\n\ndisputes the withholding of these records. \n\nOn October 9. 2013, this office sent a copy of the Request\n\nfor Review to the\n\nSchool of Medicine and requested copies of the records that were withheld, for our confidential\n\nreview, together with a detailed explanation of the applicability of section 7(1)(office received those materials on October 18, 2013. On October 22, 2013, we forwarded a\ncopy of the School of Medicine's response to the Committee; the Committee did not reply. \n\nf) of FOIA. This\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n1. 2 (West 2012). A public body \" has the burden\n\nhe open to inspection or copying.\" \nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/\n\n1. 2 (West 2012). \n\n5 ILCS 140/\n\nSection 7(1)(f) of FOIA exempts from disclosure \" [ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except\nthat a specific record or relevant portion of a record shalt not be\nexempt when the record is publicly cited and identified by the head of the public body.\" \nEmphasis added.). The section 7(1)(exemption in the federal FOIA (5 U. S. C. § 552(b)(5) (West 2014)),' which applies to \" inter- and\nintra -agency predecisional and deliberative material.\" Harwood v. McDonough, 344 III. App. 3d\n242, 247 (1st Dist. 2003). The exemption is \" intended to protect the communications process\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\" Harwood, 344111. App. 3d at 248. \n\nto the deliberative process\n\nf) exemption is equivalent\n\nRelying on the Illinois Appellate Court's decision in Dumke v. City of Chicago. \n2013 IL App (1`\nt) 121668, 994 N. E. 2d 573 (2013), the Committee asserted in its Request for\nReview that the School of Medicine waived the exemption from disclosure found in section\n\n7(1)(f) because the School of Medicine's director of public affairs — who the Committee argued\n\nis the duly authorized designee of the head of the School of Medicine — issued a public statement\nregarding its evaluation of the use of animals in its emergency medicine residency program. \n\nBecause Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the\n\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v\n\nSpecifically. the Committee argued: \n\nU] nder the statute, Ms. Carlson. as director of SIU's Office of\n\nPublic Affairs is the \" duly authorized designee\" authorized to\nspeak for President, Glenn Poshard, Ph. D., the ' head [ of] the public\n\nbody,\" SIU. Because Ms. Carlson has publicly cited and identified\nSIU's evaluation of its training methods and SIU's investigation\ninto its methods of preparing physician trainees for patient care, \nSIU has waived exemption 7(1) 0) with respect to the evaluation\nand the investigation. In Dirmke, the court explained that \"[ b] oth\n\ncite' and ' identify' have a plain and ordinary meaning, as well as a\ncommon understanding,\" * * *, \nrecord or portion thereof' is ' publicly cited and identified,' it loses\nits exemption regardless of whether the communication was\n\nif the communication, \n\nand * * * \"\n\nadopted or incorporated\n\nby the agency.\" [ ] Under these facts and\ncircumstances, it was inappropriate for SIU to invoke exemption\n\n7(1) 0) to withhold communications related to its evaluation and\ninvestigation of SIU's training methods. 2 • \n\nHowever. the School of Medicine asserted in its response to this office that: \n\nMs. Carlson was not acting on behalf of President Proshard when\nshe communicated with the media. but was merely acting in her\nrole as Director of the Office of Public Affairs. * * * More\nimportantly, Ms. Carlson did not comment publically about or cite\nthe emails in question. [ The withheld a - mails provided to the\n\nPublic Access Bureau for confidential\n\nreview in] Exhibit No. 1 and\n\nExhibit No. 3 have no correlation to the public statement and, in\n\nany event. she made no reference to these emails in the public\nstatement. Likewise. Exhibit No. 2 deals with changes being made\nto a subsequent public statement, not the one at\npoint did Ms. Carlson reference or cite to said email.\" 3\n\nissue. and at no\n\nMedicine], \n\nto Public Access Counselor. Office of the Attorney General (September 27, 2013). at 3. \n\nLetter from Mark Kennedy. [ Director of Legal Affairs, Physicians Committee for Kesponsible\n\nLetter\n\nfrom Frank Martinez, Associate General Counsel and FOIA Officer, [ SIU School of\n\nMedicine], to Shari West, Assistant Attorney General, Public Access Bureau, Office of the, Attorney General\n\nThis office has reviewed the e- mails in question and, as a preliminary matter, has\n\ndetermined that they constitute pre -decisional and deliberative records in which opinions and\nrecommendations are expressed and that they contain discussions relating to the School of\nMedicine's policies or actions. Therefore, this office must determine whether the public\nstatement issued by the School of Medicine's director of public affairs regarding the evaluation\nof the use of animals in its emergency medicine residency program waived the applicability of\nthe section 7(1)(f) exemption. \n\nSection 2(e) of FOIA (West 2012)) defines the \"[ h] ead of the public body\" as the\npresident, mayor, chairman, presiding officer, director, superintendent, manager, supervisor or\nindividual otherwise holding primary executive and administrative authority for the public body, \nor such person's duly authorized designee.\" As discussed below, even if the director of public\naffairs could be considered the duly authorized designee of the University, there is no indication\nthat the director of public affairs \" publicly cited and identified\" the e- mails at issue for purposes\nof section 7(1)(f). \n\nIn Dumke, 2013 IL App (1m) 121668, 994 N. E. 2d 573 (2013), an Illinois\n\nAppellate Court considered whether comments made by the mayor of the City of Chicago (City) \nduring a press conference on a consultant's report of the City's police department operations\nwaived the report from being withheld under section 7(1)(1). The court held that because the\nmayor directly referenced the consultant's report in a press conference as the basis for the City's\ndecision to reassign police officers and issued a press release that also expressly cited the report, \nthe report was no longer protected by the section 7(l)(t) exemption. Specifically, the court\n\nstated: \n\nMayor Daley publicly cited and identified the consultants' study\nand resulting report in the press conference and press release. He\nmentioned and brought forward the report as support for his\nreorganization plan. Not only did Mayor Daley cite and identify\nthe report, he acknowledged and commended its authors. Daunke, \n2013 IL App (I \") 121668, ¶ 28, 994 N. E. 2d at 583. \n\nin Harwood held that comments made by the head of the public body, and\n\nIn contrast, the court\nthe Governor, citing information from a one- page executive summary of the report at issue in\nthat matter, did not waive the applicability of section 7(1)(f). The Court emphasized that the\ncomments did not cite the \" complete, full\" report. Harwood, 344 111. App. 3d at 249. \n\nHere, the School of Medicine has specifically asserted that Ms. Carlson did not\ncomment publically about or cite the e- mails at issue when she issued a public statement to the\nmedia regarding the School of Medicine's use of animals in its emergency medicine residency\n\nissued by Ms. Carlson that the\n\nprogram. Our review of these e- mails and the public statement\nCommittee provided to this office with its Request for Review confirm the School of Medicine's\nassertion. Under the plain language of the exemption, the head of a public body must cite a\nspecific record or relevant portion of a record[ ]\" \n5 ILCS 140/ 7(1)(to a specific record does not preclude a public body from withholding that specific record if it\nfalls within the section of the exemption. Therefore. the Committee's reliance on Dunike is\nmisplaced, and we conclude that the School of Medicine did not improperly withhold the e- mails\nin question under section 7(1)(f) (West 2012). A public statement about a particular subject without reference\n\nto waive section 7(1)(f). (Emphasis added.) \n\nf) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. \nImail at the Chicago address listed on the first page of this letter or by e- mail at\nsbarnaby@atg. state. il. us. \n\natg. state. il. us. This letter serves to close this file. \n\nIf you have any questions. you may contact me by\n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant -Attorney General\nPublic Access Bureau\n\n26247 f 71f proper univ"}
{"id":843,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2013-12-31","case_number":null,"request_numbers":["26456"],"title":"City of Elmhurst improperly withheld construction cost estimates under 7(1)(f)","filename":"26456, issued December 31, 2013.pdf","rel_path":null,"word_count":1772,"summary":"The requester sought records regarding construction cost projections for city parking garages, which the City of Elmhurst denied under the deliberative process exemption. The PAC determined that the records were factual in nature and did not qualify for the exemption.","plain_summary":"A citizen requested documents from the City of Elmhurst regarding construction costs for city parking garages. The City refused to release the records, claiming they were internal drafts and opinions under section 7(1)(f) of FOIA. The Attorney General's office reviewed the documents and concluded that the general contractor's draft proposals were not exempt because the contractor had its own financial interest, and the City Manager's memorandum was factual, not deliberative. However, the office allowed the City to redact the Assistant City Manager's handwritten notes, which reflected pre-decisional opinions and were not publicly cited by the Mayor.","holding":"The City of Elmhurst improperly withheld the general contractor's draft proposals and the City Manager's memorandum under section 7(1)(f) of FOIA, but may redact the Assistant City Manager's handwritten notes from the draft proposal.","legal_question":"Whether construction cost estimates and a memorandum providing factual background information qualify for the deliberative process exemption under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"City of Elmhurst","requesting_party":"Ms. Erin K. Van De Walle","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned construction cost projections and expenditure documentation for city parking garages.","ocr_status":"ok","ocr_quality":91.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Self-interested-parties/26456%2C%20issued%20December%2031%2C%202013.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["deliberative process","construction costs","public records","FOIA denial"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"o\n\ng'    \n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember. 31,  2013\n\nMs.  Erin C.  Moriarty\nStorino,  Ramello &  Durkin\n\n9501 West Devon Avenue\n\n[street address redacted for site publication -- see original PDF]\nRE:   FOIA Request for Review— 2013 PAC 26456\n\nDear\n\nand Ms.  Moriarty:\n\nThis determination letter is issued pursuant to section 9. 5( t)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2012)).   For the reasons that follow, the\nPublic Access Bureau concludes that the City of Elmhurst improperly denied\n\nFOIA request.\n\nOn September 18,  2013, \n\nsubmitted a FOIA request\n\nto the City\n\nseeking various records including communications provided to the City Council and/ or referred\nto by City employees at the City Council' s September 16,  2013,  meeting which concern \" cost\nprojections for the Addison garage and actual expenditures for various phases of the Schiller and\nAdelaide garages. i'  The City provided certain responsive records on September 19,  2013.   On\nthe City an e- mail stating that she was seeking estimates\nSeptember 20,  2013, \nof specific construction figures totaling several million dollars and documentation supporting\nthose figures. 2 The City treated that e- mail as a new FOIA request and,  on September 27,  2013,\nextended the time for responding pursuant to section 3( e)( v) of FOIA ( 5 ILCS 140/ 3( e)( v) ( West\n2012)).   On October 4,  2013,  the City denied that request\n7( 1)(\npre- decisional\nher Request for Review, \n\nf) (West 2012)),  asserting that the estimates are contained in\nrecords that had not been publicly cited or identified by the head of the City.   In\n\nasserts that the City failed to demonstrate that a responsive\n\nf)  of FOIA ( 5 ILCS 140/ 7( 1)(\n\nin its entirety pursuant\n\nto section\n\nsent\n\nE- mail\n\nfrom\n\nto Elmhurst FOIA ( September\n\n18,  2013).\n\n2E- mail from\n\nto Elmhurst FOIA ( September 20, 2013).\n\n500 South Second Street, Springfield,\n100 West Randolph Street, Chicago,\n\nIllinois 62706 • (\nIllinois, 60601 • (\n\n217) 782- 1090 •  TTY: ( 217) 785- 2771 • \n312) 814- 3000 •  TTY: ( 312) 814- 3374 • \n\nFax:( 217) 782- 7046\nFax:( 312) 814- 3806\n\nInn]  Fact Main Carhnndale. \n\nIllinois 62901 •( 618) 529- 6400• TTY: ( 618) 529- 6403•\n\nFax:( 618) 529- 6416\n\n\fMs.  Erin C.  Moriarty\nDecember 31,  2013\n\nPage 2\n\nmemorandum and preliminary draft with handwritten notes fall within the scope of section\n7( 1)(\nthe City Council' s September 16,  2013,  meeting.\n\nf) of FOIA;  she contends that the records were publicly cited and identified by the Mayor at\n\nf), including a response to\n\nOn October 22,  2013,  this office forwarded a copy of the Request\nthe City and requested a detailed explanation of the factual basis and legal basis for asserting\nsection 7( 1)(\nidentified the responsive records during the September 16,  2013,  City Council meeting.  On\nNovember 5,  2013,  the City furnished its response,  the records in question,  and the minutes and a\nvideo recording of the City Council meeting.   On November 18,  2013, \nthat response.\n\nassertion that the Mayor publicly cited and\n\nfor Review to\n\nreplied to\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"   5 ILCS 140/ 1. 2 ( West 2012);  see also Southern Illinoisan v.\nIllinois Dept. ofPublic Health, 218 Ill. 2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1. 2 ( West 2012).\n\nSection 7( 1)( f) of FOIA exempts from inspection and copying \"[ p] reliminary\n\nf) exemption applies to \" inter-  and intra- agency predecisional and\n\ndrafts,  notes,  recommendations,  memoranda and other records in which opinions are expressed,\nor policies or actions are formulated,  except that a specific record or relevant portion of a record\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\"   The section 7( 1)(\ndeliberative material.\"  Harwood v.  McDonough,  344 Ill. App.  3d 242,  247 ( 1st Dist.  2003).  The\nexemption is \" intended to protect\ndiscussion among agency employees before a final decision is made.\"  Harwood,  344 Ill. App.  3d\nat 248.   Federal courts have construed the scope of the deliberative process exemption to cover\nfactual\nthat disclosure\nof the factual material would reveal the agency' s decision- making processes.\"  Nadler v.  Dept.  of\nJustice,  955 F. 2d 1479,  1491 ( 11th Cir.  1992);  Ryan v.  Dept.  ofJustice,  617 F. 2d 781,  791 ( D. C.\nCir.  1980);  see also Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  17451, \ndata in inspection reports which contain opinions and recommendations about inspected levees is\nexempt\n\ninformation that is so \" inextricably connected to the deliberative material\n\nthe communications process and encourage frank and open\n\nfrom disclosure under section 7( 1)( f)).\n\nissued April 10,  2012 ( Factual\n\nThe Public Access Bureau has reviewed the records in question,  which consist of\n\n1)  a one- page document marked as a draft proposal of projected costs for one option for the\nproject,  and ( 2)  a copy of a proposal by the general contractor outlining additional options for the\n\n\fMs.  Erin C.  Moriarty\nDecember 31,  2013\n\nPage 3\n\nproject and related exhibits together with a memorandum from the City Manager seeking input\nfrom the members of the City Council.   Counsel for the City has clarified,  in a telephone\nconversation with an Assistant Attorney General in the Public Access Bureau,  that the draft\nproposal was created by the general contractor and that some,  but not all,  of the handwritten\nnotes on that document were made by the Assistant City Manager;  counsel could not identify the\nsource of the remaining notes.   Counsel also stated that\nthe development company with which the City reached an agreement for the project.\n\nthe general contractor\n\nis working with\n\nDraft Proposals and Handwritten Notes\n\nThe City appears to assert that draft proposals created by the general contractor\n\nf),  records of communications with a Native-\n\nrecords.   In Department ofInterior v.\nthe U. S.\n\nfor the project constitute intra- agency predecisional\nKlamath Water Users Protective Ass' n,  532 U. S.  1,  121 S.  Ct.  1060,  1061 ( 2001), \nSupreme Court considered whether the U. S.  Department of Interior properly withheld,  pursuant\nto the federal FOIA' s version of section 7( 1)(\nAmerican Indian tribe concerning a plan to allocate water resources.   The court stated that the\nexemption may shield pre- decisional material prepared by a third party consultant on behalf of a\npublic body if the third party \" does not represent an interest of its own, or the interest of any\nother client,  when it advises the agency that hires it. Its only obligations are to truth and its sense\nof what good judgment calls for, and in those respects the consultant functions just as an\nemployee would be expected to do.\"  Klamath Water Users Protective Ass' n,  532 U. S.  at 11,  121\nS.  Ct.  at 1067.   However, communications with third parties that have independent interests and\nthat stand to benefit from the public body's final decision cannot be characterized as intra-agency\ncommunications.  Klamath,  532 U. S.  at 13,  121 S.  Ct.  at 1069.   The court went on to conclude\nthat the records in question did not fall within the scope of the federal FOIA version of section\n70)( f)  because the tribe represented its own interests rather than the interests of the Department\nof Interior:   the \" position of the Tribe as beneficiary is * * * \npaid consultant.\"  Klamath,  532 U. S.  at 13,  121 S.  Ct.  at 1069.\n\na far cry from the position of the\n\nHere,  the general contractor\n\nthat prepared the proposals has its own financial\n\ninterest in the multi- million dollar project.   Although the City Council may consider the general\ncontractor' s proposals in its decision- making process,  the proposals themselves do not constitute\ninter- agency or intra- agency communications because the interests of the City and the general\ncontractor are not the same.   Accordingly,  we conclude that the City has not sustained its burden\nof demonstrating that the general contractor' s draft proposals are exempt\npursuant\n\nfrom disclosure\n\nto section 7( 1)(\n\nf)  of FO1A.\n\nFederal FOIA Exemption 5 ( 5 U. S. C. §  552( b)( 5)( West 2000)) applies to \" inter-agency or intra-\n\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\nwith the agency[.]\"\n\n\fMs.  Erin C.  Moriarty\nDecember 31,  2013\n\nPage 4\n\nHowever, the one- page draft proposal does contain certain handwritten notes.\ninformation that do not fall within the scope of section 7( 1)( f).\n\nSome of the notes are factual\nOther notes,  which counsel for the City indicated were made by the Assistant City Manager,\nconsist of financial figures or highlight or comment on financial figures in the draft proposal.\n\nBecause those handwritten notes appear to reflect the Assistant City Manager' s pre- decisional\nopinions in the process of formulating action,  the notes are exempt from disclosure under section\n7( 1)(\nf)  unless those notes have been cited or identified by the Mayor.  Based on this office' s\nreview of a video recording of the meeting,  however,  the Mayor did not publicly cite and identify\nthe Assistant City Manager' s handwritten notes.  Accordingly,  the City may properly redact those\nhandwritten notes from the remaining portions of the draft proposal which,  as discussed above,.\nare not exempt from disclosure pursuant to section 7( 1)( f) of FOIA.\n\nMemorandum\n\nLastly,  the City withheld a memorandum from the City Manager\nCouncil which was attached to one of the proposals.  The memorandum simply provides factual\nbackground information and requests input\nmemorandum does not express opinions or formulate actions or policies, we conclude that the\n\nfrom members of the City Council.   Because the\n\nto the City\n\nCity improperly withheld this record pursuant\n\nto section 7( 1)(\n\nf) of FOIA.\n\nIn accordance with the conclusions expressed in this letter,  the City must disclose\nthe Assistant City\n\nthe memorandum and the general contractor' s draft proposals,  but may redact\nManager' s handwritten notes.   The Public Access Counselor has determined that resolution of\n\nthis matter does not require the issuance of a binding opinion.   If you have any questions,  please\ncontact me at ( 312)  814- 6756.\n\nVery truly yours,\n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n26456 f 71f improper mun\n\ncc:       Ms. Erin K. Van De Walle\n\nFreedom of Information Officer\n\nCity of Elmhurst\n209 North York Street\n\nElmhurst,  Illinois 60126- 2759\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Construction cost projections for parking garages","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-26456/","full_text":"o\n\ng' \n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember. 31, 2013\n\nMs. Erin C. Moriarty\nStorino, Ramello & Durkin\n\n9501 West Devon Avenue\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review— 2013 PAC 26456\n\nDear\n\nand Ms. Moriarty:\n\nThis determination letter is issued pursuant to section 9. 5(t) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2012)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Elmhurst improperly denied\n\nFOIA request.\n\nOn September 18, 2013, \n\nsubmitted a FOIA request\n\nto the City\n\nseeking various records including communications provided to the City Council and/ or referred\nto by City employees at the City Council's September 16, 2013, meeting which concern \" cost\nprojections for the Addison garage and actual expenditures for various phases of the Schiller and\nAdelaide garages. i' The City provided certain responsive records on September 19, 2013. On\nthe City an e- mail stating that she was seeking estimates\nSeptember 20, 2013, \nof specific construction figures totaling several million dollars and documentation supporting\nthose figures. 2 The City treated that e- mail as a new FOIA request and, on September 27, 2013,\nextended the time for responding pursuant to section 3(e)(v) of FOIA (5 ILCS 140/ 3(e)(v) (West\n2012)). On October 4, 2013, the City denied that request\n7(1)(pre- decisional\nher Request for Review, \n\nf) (West 2012)), asserting that the estimates are contained in\nrecords that had not been publicly cited or identified by the head of the City. In\n\nasserts that the City failed to demonstrate that a responsive\n\nf) of FOIA (5 ILCS 140/ 7(1)(in its entirety pursuant\n\nto section\n\nsent\n\nE- mail\n\nfrom\n\nto Elmhurst FOIA (September\n\n18, 2013).\n\n2E- mail from\n\nto Elmhurst FOIA (September 20, 2013).\n\nmemorandum and preliminary draft with handwritten notes fall within the scope of section\n7(1)(the City Council's September 16, 2013, meeting.\n\nf) of FOIA; she contends that the records were publicly cited and identified by the Mayor at\n\nf), including a response to\n\nOn October 22, 2013, this office forwarded a copy of the Request\nthe City and requested a detailed explanation of the factual basis and legal basis for asserting\nsection 7(1)(identified the responsive records during the September 16, 2013, City Council meeting. On\nNovember 5, 2013, the City furnished its response, the records in question, and the minutes and a\nvideo recording of the City Council meeting. On November 18, 2013, \nthat response.\n\nassertion that the Mayor publicly cited and\n\nfor Review to\n\nreplied to\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2012); see also Southern Illinoisan v.\nIllinois Dept. ofPublic Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2012).\n\nSection 7(1)(f) of FOIA exempts from inspection and copying \"[ p] reliminary\n\nf) exemption applies to \" inter- and intra- agency predecisional and\n\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed,\nor policies or actions are formulated, except that a specific record or relevant portion of a record\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" The section 7(1)(deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \" intended to protect\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d\nat 248. Federal courts have construed the scope of the deliberative process exemption to cover\nfactual\nthat disclosure\nof the factual material would reveal the agency's decision- making processes.\" Nadler v. Dept. of\nJustice, 955 F. 2d 1479, 1491 (11th Cir. 1992); Ryan v. Dept. ofJustice, 617 F. 2d 781, 791 (D. C.\nCir. 1980); see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 17451, \ndata in inspection reports which contain opinions and recommendations about inspected levees is\nexempt\n\ninformation that is so \" inextricably connected to the deliberative material\n\nthe communications process and encourage frank and open\n\nfrom disclosure under section 7(1)(f)).\n\nissued April 10, 2012 (Factual\n\nThe Public Access Bureau has reviewed the records in question, which consist of\n\n1) a one- page document marked as a draft proposal of projected costs for one option for the\nproject, and (2) a copy of a proposal by the general contractor outlining additional options for the\n\nproject and related exhibits together with a memorandum from the City Manager seeking input\nfrom the members of the City Council. Counsel for the City has clarified, in a telephone\nconversation with an Assistant Attorney General in the Public Access Bureau, that the draft\nproposal was created by the general contractor and that some, but not all, of the handwritten\nnotes on that document were made by the Assistant City Manager; counsel could not identify the\nsource of the remaining notes. Counsel also stated that\nthe development company with which the City reached an agreement for the project.\n\nthe general contractor\n\nis working with\n\nDraft Proposals and Handwritten Notes\n\nThe City appears to assert that draft proposals created by the general contractor\n\nf), records of communications with a Native-\n\nrecords. In Department ofInterior v.\nthe U. S.\n\nfor the project constitute intra- agency predecisional\nKlamath Water Users Protective Ass' n, 532 U. S. 1, 121 S. Ct. 1060, 1061 (2001), \nSupreme Court considered whether the U. S. Department of Interior properly withheld, pursuant\nto the federal FOIA's version of section 7(1)(American Indian tribe concerning a plan to allocate water resources. The court stated that the\nexemption may shield pre- decisional material prepared by a third party consultant on behalf of a\npublic body if the third party \" does not represent an interest of its own, or the interest of any\nother client, when it advises the agency that hires it. Its only obligations are to truth and its sense\nof what good judgment calls for, and in those respects the consultant functions just as an\nemployee would be expected to do.\" Klamath Water Users Protective Ass' n, 532 U. S. at 11, 121\nS. Ct. at 1067. However, communications with third parties that have independent interests and\nthat stand to benefit from the public body's final decision cannot be characterized as intra-agency\ncommunications. Klamath, 532 U. S. at 13, 121 S. Ct. at 1069. The court went on to conclude\nthat the records in question did not fall within the scope of the federal FOIA version of section\n70)(f) because the tribe represented its own interests rather than the interests of the Department\nof Interior: the \" position of the Tribe as beneficiary is * * * \npaid consultant.\" Klamath, 532 U. S. at 13, 121 S. Ct. at 1069.\n\na far cry from the position of the\n\nHere, the general contractor\n\nthat prepared the proposals has its own financial\n\ninterest in the multi- million dollar project. Although the City Council may consider the general\ncontractor's proposals in its decision- making process, the proposals themselves do not constitute\ninter- agency or intra- agency communications because the interests of the City and the general\ncontractor are not the same. Accordingly, we conclude that the City has not sustained its burden\nof demonstrating that the general contractor's draft proposals are exempt\npursuant\n\nfrom disclosure\n\nto section 7(1)(f) of FO1A.\n\nFederal FOIA Exemption 5 (5 U. S. C. § 552(b)(5)(West 2000)) applies to \" inter-agency or intra-\n\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\n\nHowever, the one- page draft proposal does contain certain handwritten notes.\ninformation that do not fall within the scope of section 7(1)(f).\n\nSome of the notes are factual\nOther notes, which counsel for the City indicated were made by the Assistant City Manager,\nconsist of financial figures or highlight or comment on financial figures in the draft proposal.\n\nBecause those handwritten notes appear to reflect the Assistant City Manager's pre- decisional\nopinions in the process of formulating action, the notes are exempt from disclosure under section\n7(1)(f) unless those notes have been cited or identified by the Mayor. Based on this office's\nreview of a video recording of the meeting, however, the Mayor did not publicly cite and identify\nthe Assistant City Manager's handwritten notes. Accordingly, the City may properly redact those\nhandwritten notes from the remaining portions of the draft proposal which, as discussed above,.\nare not exempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nMemorandum\n\nLastly, the City withheld a memorandum from the City Manager\nCouncil which was attached to one of the proposals. The memorandum simply provides factual\nbackground information and requests input\nmemorandum does not express opinions or formulate actions or policies, we conclude that the\n\nfrom members of the City Council. Because the\n\nto the City\n\nCity improperly withheld this record pursuant\n\nto section 7(1)(f) of FOIA.\n\nIn accordance with the conclusions expressed in this letter, the City must disclose\nthe Assistant City\n\nthe memorandum and the general contractor's draft proposals, but may redact\nManager's handwritten notes. The Public Access Counselor has determined that resolution of\n\nthis matter does not require the issuance of a binding opinion. If you have any questions, please\ncontact me at (312) 814- 6756.\n\nVery truly yours,\n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n26456 f 71f improper mun\n\ncc: Ms. Erin K. Van De Walle\n\nFreedom of Information Officer\n\nCity of Elmhurst\n209 North York Street\n\nElmhurst, Illinois 60126- 2759"}
{"id":844,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-26","case_number":null,"request_numbers":["26621"],"title":"City of Rockford Fire Department improperly imposed fee for non-commercial request","filename":"26621, issued October 26, 2018.pdf","rel_path":null,"word_count":977,"summary":"The requester challenged the City of Rockford's assessment of a $10 fee for a fire report, arguing the request was not for a commercial purpose. The PAC determined the City improperly charged the fee because the first eight hours of search and retrieval time are exempt from fees under FOIA.","plain_summary":"A requester asked the City of Rockford Fire Department for a fire report, marking the request as not for a commercial purpose. The City charged a $10 fee for one hour of staff time, claiming the request was commercial. The Illinois Attorney General's office found the City improperly treated the request as commercial because using information from public records to provide analysis services does not constitute a commercial purpose under FOIA. The City was asked to refund the $10 fee.","holding":"The City of Rockford improperly treated the requester's FOIA request as having a commercial purpose and charged a fee not authorized by law.","legal_question":"Whether a public body may charge a fee for the first hour of search and retrieval time when the request is not for a commercial purpose.","disposition":"violation_found","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Rockford Fire Department","requesting_party":"Ms. Lisa Ruszkowski (SEA Limited)","pac_outcome":"Improperly charged fees","pac_law_type":null,"subject_category":"fees","subject_description":"The City of Rockford assessed a $10 fee for the search and retrieval of a fire report.","ocr_status":"ok","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_f/26621%2C%20issued%20October%2026%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","search and retrieval","fire report","commercial purpose"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOctober 26,  2018\n\nMs.  Lisa Ruszkowski\n\nAdministrative Assistant\n\nSEA Limited\n\n1800 Howard Street,  Unit A\n\n[street address redacted for site publication -- see original PDF]\nMr.  Kerry F.  Partridge\nCity Attorney\nCity of Rockford\n425 East State Street\n\nRockford,  Illinois 61104- 1068\n\nRE:  FOIA Request for Review — 2013 PAC 26621\n\nDear Ms.  Ruszkowski and Mr.  Partridge: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)). \n\nOn October 25,  2013,  Ms. Lisa Ruszkowski, an Administrative Assistant for SEA\n\nLimited,  submitted a Request for Review to the Public Access Bureau alleging that the City of\nRockford Fire Department ( Department) \nretrieving,  reviewing,  and copying a fire report.  Ms.  Ruskowski provided an invoice from the\nCity which identified the request as having a commercial purpose and assessed a $ 10 fee for one\nhour of time ( rounded to the nearest hour).  The City' s response to this office asserted that the fee\nwas authorized by section 6( t)  of FOIA ( 5 ILCS 140/ 6( 0 ( West 2012))  because Ms. \nRuszkowski' s request was for a commercial purpose.  However, Ms. Ruszkowski marked her\n\nimproperly charged her for the time its personnel spent\n\nrequest as not having a \" commercial purpose\"  as that term is defined in FOIA. \n\nSection 2( c- 10)  of FOIA ( 5 ILCS 140/ 2( c- 10) ( West 2012))  defines\n\nc] ommercial purpose\"  as \" the use of any part of a public record or records,  or information\n\nderived from public records,  in any form for sale,  resale,  or solicitation or advertisement for sales\nor services.\" \n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 217)  782- 7046\n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Lisa Ruszkowski\nMr. Kerry F.  Partridge\nOctober 26,  2018\n\nPage 2\n\nThe City' s response to this office emphasized that the website of Ms.  Ruzkowski' s\nbusiness indicates that it is a forensic engineering and fire investigation company that specializes\nin analysis,  research,  and testing.  According to the City, \"[ t] he company obviously sells its[ ] \nanalysis of fire incidents in reports prepared with the information and data compiled from the\n\nvery Rockford Fire Department\nRuszkowski'\n\ns employer.\"'  The City asserted that doing so constituted a \" commercial purpose,\" \n\nfire incident and fire investigative reports requested by Ms. \n\nand that determinations by this office in 20122 failed to consider that the plain language of the\ndefinition of that term in section 2( c- 10)  includes not only public records themselves but also\n\ninformation derived from public records[ ] * * * \n\nfor sale.\" \n\nThus,  the City contends that a person who uses information derived from public\nrecords to provide business services has a commercial purpose.  The Public Access Bureau has\n\nrejected that interpretation by distinguishing the provision of services from selling information\nderived from records: \n\nA political consultant' s use of records obtained under FOIA to\n\nprovide consulting services to a client\nor reselling the information in those records or using the • \ninformation for solicitations or advertisements for sales or services\n\nis not equivalent\n\nto selling\n\nto his or her clients. \ninformation distilled from FOIA requests, \n\nIndeed,  the political consultant may use\n\nrather\n\nthan the\n\ninformation itself, together with his or her experience to provide\n\nconsulting services to clients.  111.  Att'y Gen.  PAC Req.  Rev.  Ltr. \n52147,  issued August 7,  2018,  at 3. \n\nSee also I11.  Att'y Gen.  PAC Req.  Rev.  Ltr. 41128 and 41129,  issued August 16,  2017,  at 6\nconcluding that \" an attorney' s use of records obtained under FOIA to provide legal services is\nnot tantamount to selling or reselling information in those records to his or her clients[.]\"). \n\nLikewise,  using information derived from fire incident and investigation reports\n\nto provide analysis,  research and testing services does not constitute the sale of information\nderived from public records.  Accordingly,  this office concludes that the City improperly treated\nMs.  Ruzkowski' s request as a request with a commercial purpose.  This office also notes that\n\neven if the request did have a commercial purpose,  the City' s $ 10 fee for one hour of personnel\ntime was not permissible.  The plain language of section 6( f) of FOIA,  which only applies to\n\nIllinois,  USA,  to Dushyanth Reddivari,  Assistant Attorney General,  Public Access Bureau ( December 6,  2013). \n\nLetter from Kerry F.  Partridge,  City Attorney,  Freedom of Information Officer,  City of Rockford, \n\nLtr.  19451, \n\nissued July 6,  2012. \n\n2111.  Att'y Gen.  PAC Req.  Rev.  Ltr.  18175,  issued March 22, 2012;  111.  Att'y Gen.  PAC Req.  Rev. \n\n\fs. Lisa Ruszkowski\n\nMr.  Kerry F.  Partridge\nOctober 26,  2018\n\nPage 3\n\ncommercial\npersonnel\nfirst 8 hours spent by personnel\n\nrequests,  provides that \"[ a]  public body may charge up to $ 10 for each hour spent by\n\nin searching for and retrieving a requested record.  No fees shall be charged for the\nin searching for or retrieving a requested record.\" ( Emphasis\n\nadded.) \n\nIn accordance with the conclusions expressed above,  this office requests the\n\nDepartment refund Sea Limited the $ 10. 00 fee.  The Public Access Counselor has determined\n\nthat resolution of this matter does not require the issuance of a binding opinion.  This file is\nclosed.  Please contact me at ( 312)  814- 5201 or at the Chicago address on the first page of this\n\nletter if you have questions. \n\nVer\n\ntru j your\n\nEPIES\n\nB\n\nAssistant Attorney General\nPublic Access Bureau\n\n26621 f 6 improper\n\nfd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A fire department's fee for search and retrieval of a fire report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-26621/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOctober 26, 2018\n\nMs. Lisa Ruszkowski\n\nAdministrative Assistant\n\nSEA Limited\n\n1800 Howard Street, Unit A\n\n[street address redacted for site publication -- see original PDF]\nMr. Kerry F. Partridge\nCity Attorney\nCity of Rockford\n425 East State Street\n\nRockford, Illinois 61104- 1068\n\nRE: FOIA Request for Review — 2013 PAC 26621\n\nDear Ms. Ruszkowski and Mr. Partridge: \n\nThis determination letter is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). \n\nOn October 25, 2013, Ms. Lisa Ruszkowski, an Administrative Assistant for SEA\n\nLimited, submitted a Request for Review to the Public Access Bureau alleging that the City of\nRockford Fire Department (Department) \nretrieving, reviewing, and copying a fire report. Ms. Ruskowski provided an invoice from the\nCity which identified the request as having a commercial purpose and assessed a $ 10 fee for one\nhour of time (rounded to the nearest hour). The City's response to this office asserted that the fee\nwas authorized by section 6(t) of FOIA (5 ILCS 140/ 6(0 (West 2012)) because Ms. \nRuszkowski's request was for a commercial purpose. However, Ms. Ruszkowski marked her\n\nimproperly charged her for the time its personnel spent\n\nrequest as not having a \" commercial purpose\" as that term is defined in FOIA. \n\nSection 2(c- 10) of FOIA (5 ILCS 140/ 2(c- 10) (West 2012)) defines\n\nc] ommercial purpose\" as \" the use of any part of a public record or records, or information\n\nderived from public records, in any form for sale, resale, or solicitation or advertisement for sales\nor services.\" \n\nThe City's response to this office emphasized that the website of Ms. Ruzkowski's\nbusiness indicates that it is a forensic engineering and fire investigation company that specializes\nin analysis, research, and testing. According to the City, \"[ t] he company obviously sells its[ ] \nanalysis of fire incidents in reports prepared with the information and data compiled from the\n\nvery Rockford Fire Department\nRuszkowski's employer.\"' The City asserted that doing so constituted a \" commercial purpose,\" \n\nfire incident and fire investigative reports requested by Ms. \n\nand that determinations by this office in 20122 failed to consider that the plain language of the\ndefinition of that term in section 2(c- 10) includes not only public records themselves but also\n\ninformation derived from public records[ ] * * * \n\nfor sale.\" \n\nThus, the City contends that a person who uses information derived from public\nrecords to provide business services has a commercial purpose. The Public Access Bureau has\n\nrejected that interpretation by distinguishing the provision of services from selling information\nderived from records: \n\nA political consultant's use of records obtained under FOIA to\n\nprovide consulting services to a client\nor reselling the information in those records or using the • \ninformation for solicitations or advertisements for sales or services\n\nis not equivalent\n\nto selling\n\nto his or her clients. \ninformation distilled from FOIA requests, \n\nIndeed, the political consultant may use\n\nrather\n\nthan the\n\ninformation itself, together with his or her experience to provide\n\nconsulting services to clients. 111. Att'y Gen. PAC Req. Rev. Ltr. \n52147, issued August 7, 2018, at 3. \n\nSee also I11. Att'y Gen. PAC Req. Rev. Ltr. 41128 and 41129, issued August 16, 2017, at 6\nconcluding that \" an attorney's use of records obtained under FOIA to provide legal services is\nnot tantamount to selling or reselling information in those records to his or her clients[.]\"). \n\nLikewise, using information derived from fire incident and investigation reports\n\nto provide analysis, research and testing services does not constitute the sale of information\nderived from public records. Accordingly, this office concludes that the City improperly treated\nMs. Ruzkowski's request as a request with a commercial purpose. This office also notes that\n\neven if the request did have a commercial purpose, the City's $ 10 fee for one hour of personnel\ntime was not permissible. The plain language of section 6(f) of FOIA, which only applies to\n\nIllinois, USA, to Dushyanth Reddivari, Assistant Attorney General, Public Access Bureau (December 6, 2013). \n\nLetter from Kerry F. Partridge, City Attorney, Freedom of Information Officer, City of Rockford, \n\nLtr. 19451, \n\nissued July 6, 2012. \n\n2111. Att'y Gen. PAC Req. Rev. Ltr. 18175, issued March 22, 2012; 111. Att'y Gen. PAC Req. Rev. \n\ncommercial\npersonnel\nfirst 8 hours spent by personnel\n\nrequests, provides that \"[ a] public body may charge up to $ 10 for each hour spent by\n\nin searching for and retrieving a requested record. No fees shall be charged for the\nin searching for or retrieving a requested record.\" (Emphasis\n\nadded.) \n\nIn accordance with the conclusions expressed above, this office requests the\n\nDepartment refund Sea Limited the $ 10. 00 fee. The Public Access Counselor has determined\n\nthat resolution of this matter does not require the issuance of a binding opinion. This file is\nclosed. Please contact me at (312) 814- 5201 or at the Chicago address on the first page of this\n\nletter if you have questions. \n\nVer\n\ntru j your\n\nEPIES\n\nB\n\nAssistant Attorney General\nPublic Access Bureau\n\n26621 f 6 improper\n\nfd"}
{"id":845,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-02-21","case_number":null,"request_numbers":["31244"],"title":"Illinois State Police improperly charged $20 DVD fee under FOIA","filename":"31244, issued February 21, 2018.pdf","rel_path":null,"word_count":1413,"summary":"The requester sought records from the Illinois State Police, including in-car video footage, and the PAC determined that the agency improperly charged a $20 fee for the DVD copy.","plain_summary":"A citizen requested video records from the Illinois State Police and was charged $20 for a DVD copy. The Attorney General's office ruled that the police department improperly assessed the fee because it failed to respond to the request within the required time limits under FOIA. Alternatively, even if the response had been timely, the fee was set by an administrative rule, not by a statute, and therefore could not be charged under FOIA. The PAC requested that the police department reimburse the citizen for the $20 fee.","holding":"The Illinois State Police improperly assessed a $20 fee for a DVD copy of requested records because it failed to respond to the FOIA request within the statutory time limits, and alternatively because the fee was set by administrative rule, not by statute, and therefore did not supersede FOIA's fee provisions.","legal_question":"Whether a public body may charge a fee for records that is set by administrative rule rather than by statute, in light of the fee provisions of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(vi)"],"public_body":"Illinois State Police","requesting_party":null,"pac_outcome":"Improperly assessed fees","pac_law_type":null,"subject_category":"fees","subject_description":"The requester was charged a fee for a DVD copy of in-car traffic stop video footage.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_f/31244%2C%20issued%20February%2021%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","copying costs","administrative rules","reimbursement"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 21,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Erin Davis\n\nFreedom of Information Officer\n\nIllinois State Police\n\n801 South Seventh Street, Suite 1000- S\nSpringfield,  Illinois 62703\n\nerin_ davis@isp. state. il.us\n\nRE:  FOIA Request\n\nfor Review — 2014 PAC 31244;  ISP FOIR No. \n\nDear\n\nand Ms. Davis: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that that the Illinois State Police ( ISP)  improperly assessed fees\nin response to\n\nFOIA request. \n\nOn July 25,  2014, \n\nto ISP bp' e- mail seeking\ncopies of various records including videos of a traffic stop taken earlier that day.  On August 4, \n2014,  ISP asserted that it received\ntime to respond by five business days, to August 11,  2014,  pursuant to section 3( e)  of FOIA ( 5\nILCS 140/ 3( e) ( West 2014). 2 On August 12,  2014,  ISP partially denied\n\nresponse on July 28,  2014,  and extended its\n\nsubmitted a FOIA request\n\nFOIA\n\nrequest pursuant\n\n1)( d)( vi) ( West 2014))  and informed\n\nto sections 7( 1)( b),  7( 1)( c),  and 7( 1)( d)( vi)  of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( c), \nthat it has \" one DVD of in -car video available\n\nE- mail from\n\nto FOIA_ Officer@isp. state. il. us ( July 25,  2014,  10: 29 a. m.). \n\nAugust 4,  2014). \n\n2E -mail from Lieutenant Steve Lyddon,  FOIA Officer, [ Illinois State Police]  to\n\n500 South Second Street,  Springfield, \n100 West Randolph Street,  Chicago, \n\nIllinois 62706 • (\nIllinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 217)  782- 7046\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Erin Davis\n\nFebruary 21,  2018\nPage 2\n\nfor release.  Please remit a check in the amount of $20. 00 for the DVD,  made payable to the\nIllinois State Police[.]\"  3\nDVD.  In his Request for Review, \n\nobjected to the fee but paid ISP the $ 20. 00 and received the\n\ndisputes the $ 20. 00 fee. \n\nOn October 7,  2014,  this office forwarded a copy of the Request for Review to\nFOIA request in light of\n\nassertion that ISP was precluded from charging fees because ISP did\n\nISP and asked it to explain its receipt and handling of\nsection 3( d)  of FOIA ( 5 ILCS 140/ 3( d) ( West 2014)).  This office specifically requested that ISP\nrespond to\nnot provide a timely response to his FOIA request.  On October 10,  2014,  ISP provided this\noffice with a written response but did not address whether it was precluded from charging fees\ndue to its untimely response;  rather ISP asserted that it had authority to charge a $ 20. 00 fee for\nthe disc under section 6( b)  of FOIA ( 5 ILCS 140/ 3( d) ( West 2014))  and section 1298. 40( 6)  of\nthe Illinois Administrative Code ( 20 Ill. Adm. Code §  1298. 40( b) ( West 2014),  last amended at\n37 I11.  Reg. 8041,  effective June 3,  2013).  On October 21,  2014,  this office forwarded a copy of\nISP' s response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 I11.  2d 390,  415 ( 2006).  Section 3( d)  of FOIA\nprovides,  in pertinent part: \n\nEach public body shall,  promptly,  either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request,  unless the time for response is properly\nextended under subsection ( e)  of this Section.  Denial shall be in\n\nwriting as provided in Section 9 of this Act.  Failure to comply with\na written request,  extend the time for response,  or deny a request\nwithin 5 business days after its receipt shall be considered a denial\n\nof the request.  A public body that fails to respond to a request\nwithin the requisite periods in this Section but thereafter provides\n\nthe requester with copies of the requested public records may not\nimpose a fee for such copies. ( Emphasis added.) \n\nWhile ISP claims that it did not receive the FOIA request until July 28,  2014, \n\nsubmitted his FOIA request\n\nto ISP by e- mail on July 25,  2014,  at 10: 29 a.m. \n\nISP has not\n\n3E -mail\n\nfrom Lieutenant Steve Lyddon,  FOIA Officer, [ Illinois State Police]  to\n\nAugust\n\n12,  2014). \n\n\fMs.  Erin Davis\n\nFebruary 21,  2018\nPage 3\n\ndocumented for this office that there was a delay in transmission of the e- mail that prevented it\nfrom receiving the request until July 28,  2014.  Accordingly,  based on the available information, \nISP was required to respond by August 1,  2014,  or properly extend its response time by that date, \nwhich it did not do.  Moreover,  even assuming that ISP had received\nFOIA request\non July 28,  2014,  and properly extended its time to respond by 5 business days,  ISP' s response\nwould have been due on August 11,  2014.  However,  ISP did not provide\na response\nto his FOIA request until August 12,  2014.  Section 3( f) of FOIA ( 5 ILCS 140/ 3( 0 ( West 2014)) \nprovides that \"[ a]  public body that fails to respond to a request within the time permitted for\nextension but thereafter provides the requester with copies of the requested public records may\nnot impose a fee for those copies.\" ( Emphasis added.) \nISP' s response to this office appears to\ncontend that such restrictions are limited to fees imposed under FOIA' s fee provisions,  not those\nfixed by other statutes.  See 5 ILCS 140/ 6( b) ( West 2016).  The plain language of sections 3( d) \nand 3( 0, however,  prohibits a public body from imposing a fee— regardless of its source— for\ncopies if it fails to issue a timely response to a request.  Because ISP failed to issue its response\nor extend the time for its response within the requisite time periods,  section 3( d)  of FOIA\nprohibits it from charging\n\nthe $ 20. 00 fee. \n\nEven supposing that ISP had provided a timely response to\n\nit would\n\nnot have been allowed to charge\n\nthe $ 20. 00 fee set forth in the Administrative Code. \n\nto\n\nSection 6 of FOIA sets forth the permissible fees for copying records requested pursuant\nFOIA,  which apply \"[ e] xcept when a fee is otherwise fixed by statute.\" ( Emphasis added.)  5\nILCS 140/ 6( b) ( West 2014). \nInstead of citing a statute authorizing the fee that it assessed,  ISP\ncited a provision of the Administrative Code that authorizes a copying fee of $20. 00 for a video\ntape.  If the General Assembly had intended for fees fixed by both statutes and administrative\nrules to apply to records requested under FOIA, it would have done so expressly as it did in\ncrafting the section 7( 1)( a)  exemption to apply to records that statutes,  as well as administrative\nrules implementing statutes,  prohibit\nconsistently determined that a fee set forth in the Administrative Code does not supersede the fee\nprovisions of FOIA because that fee was not fixed by statute.  See,  e. g., Ill. Att' y Gen.  PAC Req. \nRev.  Ltr.  39015,  issued January 6,  2016;  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  17989,  issued\nFebruary 5,  2014. \n\nfrom being disclosed.  The Public Access Bureau has\n\nIn accordance with the conclusions expressed in this letter,  we request\n\nISP to\n\nreimburse\n\nthe $ 20. 00 he paid to ISP for the DVD. \n\n\fMs.  Erin Davis\n\nFebruary 21,  2018\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nEDIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n31244 f 3d untimely fee improper 3f untimely fee improper pd sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"In-car traffic stop video footage on DVD","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-31244/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 21, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Erin Davis\n\nFreedom of Information Officer\n\nIllinois State Police\n\n801 South Seventh Street, Suite 1000- S\nSpringfield, Illinois 62703\n\nerin_ davis@isp. state. il.us\n\nRE: FOIA Request\n\nfor Review — 2014 PAC 31244; ISP FOIR No. \n\nDear\n\nand Ms. Davis: \n\nThis determination letter is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that that the Illinois State Police (ISP) improperly assessed fees\nin response to\n\nFOIA request. \n\nOn July 25, 2014, \n\nto ISP bp' e- mail seeking\ncopies of various records including videos of a traffic stop taken earlier that day. On August 4, \n2014, ISP asserted that it received\ntime to respond by five business days, to August 11, 2014, pursuant to section 3(e) of FOIA (5\nILCS 140/ 3(e) (West 2014). 2 On August 12, 2014, ISP partially denied\n\nresponse on July 28, 2014, and extended its\n\nsubmitted a FOIA request\n\nFOIA\n\nrequest pursuant\n\n1)(d)(vi) (West 2014)) and informed\n\nto sections 7(1)(b), 7(1)(c), and 7(1)(d)(vi) of FOIA (5 ILCS 140/ 7(1)(b), (1)(c), \nthat it has \" one DVD of in -car video available\n\nE- mail from\n\nto FOIA_ Officer@isp. state. il. us (July 25, 2014, 10: 29 a. m.). \n\nAugust 4, 2014). \n\n2E -mail from Lieutenant Steve Lyddon, FOIA Officer, [ Illinois State Police] to\n\nfor release. Please remit a check in the amount of $20. 00 for the DVD, made payable to the\nIllinois State Police[.]\" 3\nDVD. In his Request for Review, \n\nobjected to the fee but paid ISP the $ 20. 00 and received the\n\ndisputes the $ 20. 00 fee. \n\nOn October 7, 2014, this office forwarded a copy of the Request for Review to\nFOIA request in light of\n\nassertion that ISP was precluded from charging fees because ISP did\n\nISP and asked it to explain its receipt and handling of\nsection 3(d) of FOIA (5 ILCS 140/ 3(d) (West 2014)). This office specifically requested that ISP\nrespond to\nnot provide a timely response to his FOIA request. On October 10, 2014, ISP provided this\noffice with a written response but did not address whether it was precluded from charging fees\ndue to its untimely response; rather ISP asserted that it had authority to charge a $ 20. 00 fee for\nthe disc under section 6(b) of FOIA (5 ILCS 140/ 3(d) (West 2014)) and section 1298. 40(6) of\nthe Illinois Administrative Code (20 Ill. Adm. Code § 1298. 40(b) (West 2014), last amended at\n37 I11. Reg. 8041, effective June 3, 2013). On October 21, 2014, this office forwarded a copy of\nISP's response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 I11. 2d 390, 415 (2006). Section 3(d) of FOIA\nprovides, in pertinent part: \n\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. Denial shall be in\n\nwriting as provided in Section 9 of this Act. Failure to comply with\na written request, extend the time for response, or deny a request\nwithin 5 business days after its receipt shall be considered a denial\n\nof the request. A public body that fails to respond to a request\nwithin the requisite periods in this Section but thereafter provides\n\nthe requester with copies of the requested public records may not\nimpose a fee for such copies. (Emphasis added.) \n\nWhile ISP claims that it did not receive the FOIA request until July 28, 2014, \n\nsubmitted his FOIA request\n\nto ISP by e- mail on July 25, 2014, at 10: 29 a.m. \n\ndocumented for this office that there was a delay in transmission of the e- mail that prevented it\nfrom receiving the request until July 28, 2014. Accordingly, based on the available information, \nISP was required to respond by August 1, 2014, or properly extend its response time by that date, \nwhich it did not do. Moreover, even assuming that ISP had received\nFOIA request\non July 28, 2014, and properly extended its time to respond by 5 business days, ISP's response\nwould have been due on August 11, 2014. However, ISP did not provide\na response\nto his FOIA request until August 12, 2014. Section 3(f) of FOIA (5 ILCS 140/ 3(0 (West 2014)) \nprovides that \"[ a] public body that fails to respond to a request within the time permitted for\nextension but thereafter provides the requester with copies of the requested public records may\nnot impose a fee for those copies.\" (Emphasis added.) \nISP's response to this office appears to\ncontend that such restrictions are limited to fees imposed under FOIA's fee provisions, not those\nfixed by other statutes. See 5 ILCS 140/ 6(b) (West 2016). The plain language of sections 3(d) \nand 3(0, however, prohibits a public body from imposing a fee— regardless of its source— for\ncopies if it fails to issue a timely response to a request. Because ISP failed to issue its response\nor extend the time for its response within the requisite time periods, section 3(d) of FOIA\nprohibits it from charging\n\nthe $ 20. 00 fee. \n\nEven supposing that ISP had provided a timely response to\n\nit would\n\nnot have been allowed to charge\n\nthe $ 20. 00 fee set forth in the Administrative Code. \n\nto\n\nSection 6 of FOIA sets forth the permissible fees for copying records requested pursuant\nFOIA, which apply \"[ e] xcept when a fee is otherwise fixed by statute.\" (Emphasis added.) 5\nILCS 140/ 6(b) (West 2014). \nInstead of citing a statute authorizing the fee that it assessed, ISP\ncited a provision of the Administrative Code that authorizes a copying fee of $20. 00 for a video\ntape. If the General Assembly had intended for fees fixed by both statutes and administrative\nrules to apply to records requested under FOIA, it would have done so expressly as it did in\ncrafting the section 7(1)(a) exemption to apply to records that statutes, as well as administrative\nrules implementing statutes, prohibit\nconsistently determined that a fee set forth in the Administrative Code does not supersede the fee\nprovisions of FOIA because that fee was not fixed by statute. See, e. g., Ill. Att' y Gen. PAC Req. \nRev. Ltr. 39015, issued January 6, 2016; Ill. Att' y Gen. PAC Req. Rev. Ltr. 17989, issued\nFebruary 5, 2014. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nEDIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n31244 f 3d untimely fee improper 3f untimely fee improper pd sa"}
{"id":847,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-07-22","case_number":null,"request_numbers":["31664"],"title":"Chicago Transit Authority improperly withheld Bombardier component percentages in Buy America audit","filename":"31664, issued July 22, 2016.pdf","rel_path":null,"word_count":3750,"summary":"The PAC reviewed a FOIA request for audit documents related to the Chicago Transit Authority's railcar project, determining that the CTA properly withheld some component percentages but improperly withheld others related to Bombardier.","plain_summary":"A requester sought detailed audit information about the manufacturing origins of railcar components for a Chicago Transit Authority project. The Attorney General's office determined that the CTA properly withheld the percentages of components from suppliers other than Bombardier, but improperly withheld the percentages of components supplied by Bombardier. The CTA also properly withheld the percentages and subcomponents in the Buy America Compliance Certificates, but improperly withheld the Description of Work in the Post-Delivery Audit.","holding":"The Chicago Transit Authority properly withheld the percentages of railcar components from suppliers other than Bombardier, but improperly withheld the percentages of components supplied by Bombardier and the Description of Work.","legal_question":"Whether the Chicago Transit Authority properly applied FOIA exemptions to withhold component manufacturing percentages and cost data in a 'Buy America' audit.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Chicago Transit Authority","requesting_party":"Mr. Jaime Saucedo","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"trade secrets","subject_description":"The request concerned the disclosure of 'Buy America' audit data detailing the domestic versus foreign origin of railcar components.","ocr_status":"ok","ocr_quality":93.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/31664%2C%20issued%20July%2022%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","CTA","procurement","FOIA exemption","audit records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 22,  2016\n\nVia electronic mail: \n\nMr.  Andrew J.  Kahn\n\nDavis,  Cowell &  Bowe,  LLP\n\n[street address redacted for site publication -- see original PDF]\nMr. Joel D' Alba and Ms. Margaret Angelucci\n\nAsher,  Gittler &  D' Alba,  Limited\n\n200 West Jackson Boulevard,  Suite 1900\n\nChicago,  Illinois 60606\n\najk@dcbsf.com\n\njad@ulaw. com and maa@ulaw. com\n\nMs.  Brigett R.  Bevan\n\nFOIA Officer\n\nChicago Transit Authority\n567 West Lake Street\n\nChicago,  Illinois 60661\n\nFOIA@transitchicago.\n\ncom\n\nMs. Sandrine Dumont\nLegal Advisor, Contracts and Legal Affairs\n\nBombardier Transportation America\n\n1101,  rue Parent\n\nSaint -Bruno, Quebec,  Canada J3V 6E6\nsandrine.dumont@ca.transport.bombardier.com\n\nRE:  FOIA Request for Review — 2014 PAC 31664\n\nDear Mr. Kahn, Mr. D' Alba, Ms. Angelucci,  Ms.  Bevan,  and Ms. Dumont: \n\nThis determination is issued pursuant to section 9. 5( 1)  of the Freedom of\n\n1)  properly withheld the percentages of railcar components\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)).  For the reasons stated below, the\nPublic Access Bureau concludes that the Chicago Transit Authority' s ( CTA) response to Mr. \nJaime Saucedo' s FOIA request: (\nmanufactured domestically or in foreign countries that are listed within the \" Post -Delivery Buy\nAmerica Audit for the Chicago Transit Authority ( CTA)  Project 16796G for Professional\nServices Consultant on BAA Post -Delivery for AC Propulsion Railcars\" ( Post -Delivery Audit) \nwhere the suppliers are companies other than Bombardier Transit Corporation ( Bombardier); ( 2) \nimproperly withheld the percentages of components supplied by Bombardier; ( 3)  properly\nwithheld the percentages and corresponding subcomponents within the accompanying \" CTA\nContract 076)  Buy America Compliance Certificates\" ( Certificates);  and ( 4)  improperly\nwithheld the \" Description of Work Final Assembly Requirements\" ( Description of Work)  in the\nPost -Delivery Audit. \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 • '\n\nFEY: (\n\n217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Andrew J.  Kahn,  Mr.  Joel D' Alba,  Ms.  Margaret Angelucci, \n\nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 2\n\nBACKGROUND\n\nOn July 19,  2010,  CTA contracted with PB Americas,  Inc. ( Consultant)  to\n\nconduct a post -delivery Buy America audit on railcars that CTA purchased from Bombardier.' \nOn November 2,  2010,  Bombardier and Consultant entered into a non -disclosure agreement\nthat\nprohibited Consultant from disclosing \" Confidential Information to any person other than CTA\nand its permitted personnel that needs to know for the purpose of the above mentioned Audit.\" 2\nConfidential\nrailcar]  Contract[,] * * * \n\nrecords and books relating to the\nthe records concerning [ Bombardier' s]  suppliers for said Contract[,] \n\nInformation\"  means \"[ Bombardier' s]  financial\n\nand * * * \n\nany other documents or information,  disclosed to the Consultant orally or in\n\nwriting[.] i3 Consultant submitted the Post -Delivery Audit to CTA on January 12,  2011. \n\nOn May 16,  2013,  Mr.  Saucedo,  on behalf of the Los Angeles Alliance for a New\n\nEconomy ( LAANE),  submitted a FOIA request\nto the CTA seeking,  among other records,  the\nPost Award/ Delivery Buy America Compliance Certification.\" 4 Subsequently,  Mr. Saucedo\nclarified that his request included the Post -Delivery Audit and Certificates,  which are the records\nat issue here. 5 On August 12,  2014,  CTA provided Mr.  Saucedo with the Post -Delivery Audit\nand Certificates but redacted certain information under section 7( 1)( g)  of FOIA ( 5 ILCS\n140/ 7( 1)( g) ( West 2012)).  On October 6,  2014, attorneys for the Jobs to Move America\nCoalition ( Coalition)  submitted this Request\n\nfor Review disputing the applicability of that\n\nexemption.\" \n\nOn November 7,  2014,  the Public Access Bureau sent a copy of the Request\n\nfor\nReview to CTA and asked for unredacted copies of the responsive records for our confidential\nreview,  together with a detailed explanation of the factual and legal bases for its assertion of\n\nsection 7( 1)( g)  of FOIA.  On November 19,  2014,  CTA provided this office with the unredacted\n\nPost -Delivery Audit at\n\n1. \n\n2Non- Disclosure Agreement between Bombardier and Consultant ( November 2,  2010), ¶ 5. \n\nNon -Disclosure Agreement between Bombardier and Consultant ( November\n\n2,  2010), ¶  I. \n\n4E -mail from Jaime Saucedo to FOIA, [ Chicago Transit Authority] ( May 16,  2013). \n\n5Letter from Brigett R.  Bevan,  Freedom of Information Officer,  Chicago Transit Authority,  to\n\nJaime Saucedo,  Los Angeles Alliance for a New Economy ( August 12,  2014),  at\n\nI. \n\n6Letter from Joel D' Alba and Margaret Angelucci,  Asher, Gittler &  D' Alba, and Andrew Kahn, \n\nDavis Cowell &  Bowe,  Attorneys for Coalition,  to Sarah Pratt,  Public Access Counselor,  Office of the Attorney\nGeneral ( October 6,  2014).  The Coalition includes the NAACP,  AFL- CIO,  LAANE and other groups ( e- mail\nAndrew Kahn,  Davis, Cowell &  Bowe,  to bevan@transitchicago.com and foia@transitchicago.com ( May 12, \n2014)). \n\nfrom\n\n\fMr. Andrew J.  Kahn,  Mr. Joel D' Alba, Ms. Margaret Angelucci, \nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\nJuly 22,  2016\nPage 3\n\nIn addition,  Ms.  Sandrine Dumont,  Legal Advisor to\nPost - Delivery Audit and Certificates. \nBombardier Transportation Americas,  submitted a response letter asserting that the redacted\nsections are exempt from disclosure pursuant to section 7( 1)( g)  of FOIA because disclosure may\ncause competitive harm to Bombardier or some of its affiliates.  On January 12,  2015,  the\nCoalition replied by disputing that disclosure of the redacted information could cause\ncompetitive harm. \n\nBuy America Audits\n\nIn accordance with the requirements of section 669 of title 49 of the Code of\n\nFederal Regulations ( 49 C. F. R. §  661),  when purchasing railcars with Federal Transit\nAdministration ( FTA)  funds,  final assembly of the railcars must occur in the United States and\nthe cost of the components and subcomponents produced in the United States must be at least\nsixty percent of the cost of all components.  49 C. F. R. §  661. 11.  To ensure compliance,  FTA\nrequires that the purchasing authority ( here CTA) conduct a pre -award audit of a supplier' s likely\ncompliance and a post -delivery audit of a supplier' s ( here Bombardier' s)  compliance.  49 C. F. R. \n663.  The pre -award audit is required before the entity receiving FTA funding may enter into a\ncontract with a supplier.  49 C. F. R. §  663. 21.  The purpose of the pre -award audit is to weed out\n\nthose suppliers incapable of complying with the Buy America and purchasing authority' s\nrequirements.  After a contract\npost -delivery audit must be completed before a railcar' s title is transferred to the purchasing\nauthority.  49 C. F. R. §  663. 31.  The purpose of the post -delivery audit is to ensure the delivered\nrailcars comply with the federal regulations and the purchasing authority' s requirements. \n\nis entered into between a supplier and purchasing authority,  a\n\nDISCUSSION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2012);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health,  218 Ill. 2d 390,  416 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2012). \n\nSection 7( 1)( g)  of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial information\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial\n\ninformation are furnished under a claim\n\nthat they are proprietary,  privileged or confidential,  and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive\n\nharm to the person or\n\n\fMr. Andrew J.  Kahn,  Mr.  Joel D' Alba,  Ms.  Margaret Angelucci, \n\nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 4\n\nbusiness,  and only insofar as the claim directly applies to the\n\nrecords requested. \n\nThe term trade secret in the context of the FOIA has been interpreted to include information\nthat ( 1)  would either inflict substantial competitive harm or ( 2)  make it more difficult\nfor the\nagency to induce people to submit similar information in the future.\" ( Emphasis in original.) \nBlueStar Energy Services,  Inc.  v. Illinois Commerce Comm' n,  374 I11.  App.  3d 990,  995 ( 1st Dist. \n2007).  Under\n\nissue here, \"[ p] arties opposing disclosure need not\ndemonstrate actual competitive harm;  instead,  they need only show actual competition and a\nlikelihood of substantial competitive injury in order to ' bring [ that]  commercial\nwithin the realm of confidentiality.\"'  New Hampshire Right to Life v.  U.S.  Department of Health\n\nthe first prong,  which is at\n\ninformation\n\nHuman Services,  778 F. 3d 43,  50 ( 1st Cir.  2015) ( quoting Public Citizen Health Research\n\nGroup v.  Food &  Drug Administration,  704 F. 2d 1280,  1291 ( D.C.  Cir.  1983)). \n\nCiting section 7( 1)( g),  CTA,  at the request of Bombardier,  redacted from the Post - \n\nDelivery Audit and Certificates the following information at issue here: \n\n1)  The percentages set forth in the percentage columns of the Post - \n\nDelivery Audit on the pages entitled \" Buy America Delivery Audit\nOn Rail Vehicle Procurement For CTA Rail Car A\"  and \" Buy\nAmerica Delivery Audit On Rail Vehicle Procurement For CTA\nRail Car B[.]\"\n\n8\n\n2)  Fifteen Buy America Compliance Certificates in their entireties. \nin its response to this office,  Bombardier\n\nagreed that\n\nHowever, \n\nthe\n\nname,  address and subcomponents\n\nnames of the suppliers\"  are not\n\nFederal court\n\ninterpretations of the exemption for trade secrets in the Federal FOIA are instructive\n\nin construing section 7( 1)( g).  See Roulette v.  Department of Centra/  Management Services,  141 111.  App.  3d 394, \n400 ( 1st Dist.  1986).  The trade secret exemption in the Federal FOIA applies to \" trade secrets and commercial or\n\nfinancial\n\ninformation obtained from a person and privileged or confidential[.]\" \n\n5 U. S. C. § 552( b)( 4) ( 2012). \n\nPost -Delivery Audit.  CTA,  at the behest of Bombardier, also redacted all cost information.  In a\n\nin the Public Access Bureau that the Coalition was not seeking a review of the redacted\n\ntelephone conversation on November 20,  2015,  Mr. Andrew J.  Kahn,  attorney for the Coalition,  informed an\nAssistant Attorney General\ncost information.  Accordingly,  we will not address the cost redactions here.  CTA also withheld from the Post - \nDelivery Audit two documents that were previously provided to the Coalition: ( 1)  Post -Delivery Purchaser's\nfrom Brigett R. \nRequirements Certification;  and ( 2)  Post -Delivery Buy America Compliance Certification ( e- mail\nBevan,  FOIA Officer, Chicago Transit Authority, to Andy Kahn ( June 18,  2014)).  Therefore we will not address\nthose redactions either, but ask CTA to supply the Coalition with a copy of the Post -Delivery Audit containing those\npages if it has not already done so. \n\n\fMr.  Andrew J.  Kahn,  Mr.  Joel D' Alba,  Ms.  Margaret Angelucci, \n\nMs.  Brigett R.  Bevan, Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 5\n\nexempt from disclosure. 9 Bombardier has since stated that it\nwould disclose the information in the \" Source -Domestic or\n\nForeign\", \" Currency of the PO\",  and the \" Complete Address of\nlocation...\"  columns, \nForeign %\"  columns can be withheld. 10\n\nif the \" Subcomponent Name\", \" US %\",  and\n\n3)  The Description of Work in its entirety.  However,  Bombardier has\nagreed to provide this description except for the majority of the\nsecond paragraph ( all but the first 13 words), the entire third\n\nparagraph,  and the entire last paragraph.\" \n\nAs mentioned above,  Bombardier has provided this office with documentation\n\ndemonstrating that the Post -Delivery Audit and Certificates were supplied to Consultant under\nIt is undisputed that there is actual competition in the\nclaims of privilege and confidentiality.\nrailcar market.  The parties,  however,  disagree regarding whether disclosure of the records in\nquestion would cause competitive harm to Bombardier. \n\n12\n\nThe Percentages Listed in the Post -Delivery Audit\n\nBombardier argues that releasing the percentages redacted from the Post -Delivery\n\nAudit would cause it competitive harm by enabling competitors preparing bids for railcars to\nfocus on using Bombardier' s suppliers that provide the most U. S.  content.  Bombardier asserts\nthat: \n\nThe percentage of US vs.  foreign content for each supplier\n\nis often the result of some extensive commercial negotiations and\n\ndiscussions between Bombardier and its suppliers and in certain\n\ncase[ s],  Bombardier will suggest some changes to the\n\n9Letter from Sandrine Dumont,  Legal Advisor, Bombardier Transportation Americas, to Sarah\n\nPratt,  Public Access Counselor,  Office of the Attorney General ( November 19,  2014),  at 5. \n\n10E -mail from Sandrine van den Bogaard Dumont,  Legal Advisor, Contracts and Legal Affairs, \n\nBombardier Transportation America, to Edie Steinberg, [ Assistant Attorney General,  Public Access Bureau,  Office\nof the Attorney General] ( May 20,  2015),  at ¶ 4. \n\nE- mail\n\nfrom Sandrine van den Bogaard Dumont,  Legal Advisor,  Contracts and Legal Affairs, \n\nBombardier Transportation America,  to Edie Steinberg, [ Assistant Attorney General,  Public Access Bureau,  Office\nof the Attorney General] ( May 20,  2015),  at ¶ 1 ( and accompanying pages highlighting redactions). \n\n12Non- Disclosure Agreement between Bombardier and Consultant ( November 2,  2010). \n\n\fMr. Andrew J.  Kahn, Mr. Joel D'Alba, Ms.  Margaret Angelucci, \n\nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 6\n\nmanufacturing print of some of its suppliers ( including sometimes\nusing Bombardier' s other suppliers)  in order to achieve a higher\nUS content.  Consequently,  disclosing such percentages would\ncause competitive harm to Bombardier as it would reveal its\nmanufacturing and US content strategy. 1131\n\nThe Coalition argues that the percentages are not confidential or proprietary\n\nbecause it has elsewhere obtained percentage information in several pre -award audits ( including\none in which Bombardier was audited),  an interim audit,  and at least one post -delivery audit. \nThe Coalition' s contention is unpersuasive,  however,  because: ( 1) \nthose audits were not obtained\nunder the Illinois FOIA;  and ( 2)  one public body' s decision to disclose a record does not compel\nother public bodies to do the same. \n\nThe Coalition also provided two declarations supporting its position that the\n\npercentages are not proprietary.  Mr.  Larry E.  Salci,  an independent consultant serving clients in\nthe rail\nindustry and former president of Bombardier Corporation ( US),  declared that: ( 1) \"\ninformation contained in the [ Post -Delivery Audit]  of Bombardier\ninformation,  excluding the detailed price information from suppliers or any defined proprietary\ntechnical\nused in bid proposals[;]\" \n\ninformation owned and utilized by suppliers and the car builder that is documented and\nand ( 2) \"[ t] he percentage calculations for all major components and the\n\nthe\nis generally not proprietary\n\nverification of assembly cost percentages by the car builder relative to total vehicle cost are not\nuseful information to competitors and should not be considered proprietary information or\ndisadvantageous\n\nif provided.\"  14 Additionally,  Ms.  Linda Nguyen - Perez,  a\n\nto Bombardier * * * \n\nsenior research/ policy analyst for the Coalition,  declared that \" the overall percentage of domestic\nsourcing is not something agency officials outside California have in the past appeared to give\nany weight to in their decision making so long as it exceeds the 60%  minimum, and hence the\nunderlying percentage connected to_a particular supplier to a bidder [ sic]  is even more irrelevant\nin competition between bidders[.]\" \n\n1'  However,  whether officials awarding contracts to railcar\nsuppliers give any weight to percentages that exceed 60%  and whether Bombardier would be\ndisadvantaged in its own procurement activities are irrelevant to the essential question of\n\nwhether competitors could use the final cost percentages from the Post -Delivery Audit to target\nBombardier' s suppliers providing the most U. S.  content in order to formulate their own more\ncompetitive bids to public entities in the future, to Bombardier' s disadvantage. \n\nPratt, Public Access Counselor, Office of the Attorney General ( November 19,  2014),  at 5. \n\nLetter from Sandrine Dumont,  Legal Advisor,  Bombardier Transportation Americas,  to Sarah\n\n2014),  at 2. \n\nDeclaration of Larry E.  Salci RE:  BuyAmerica Audit Report on Bombardier/CTA ( October 8, \n\nDeclaration of Linda Nguyen - Perez in Support of Appeal ( October 1,  2014),  at ¶ 3. \n\n\fMr. Andrew J.  Kahn,  Mr. Joel D' Alba,  Ms.  Margaret Angelucci, \n\nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 7\n\nAfter reviewing the Post -Delivery Audit, the declarations provided by the\n\nCoalition,  and the arguments of the Coalition and Bombardier,  we conclude that CTA met its\nburden of establishing a likelihood of substantial competitive injury to Bombardier if the\npercentages redacted from the Post -Delivery Audit as to Bombardier' s outside suppliers were\ndisclosed.  In particular,  competitors could exploit information about the parts and percentages of\n\ninformation); \n\nfuture competitor could take advantage of institutional knowledge contained in a\n\nU. S.  content costs that Bombardier' s suppliers provide to reach agreements with those suppliers\nto the detriment of Bombardier.  See generally BlueStar Energy Services,  Inc.,  374 Ill. App.  3d\nat 995- 96 ( settlement agreement provided in confidence to government agency from an entity the\nagency regulates exempt from disclosure);  New Hampshire Right to Life,  778 F. 3d at 51 ( where\npotential\nmanual and letter describing the manual,  manual and letter exempt commercial\nUnited Technologies Corp.  v.  US. Dept. of Defense,  601 F. 3d 557,  564 ( D. C. Cir. 2010) ( audit\nand documents regarding the audit containing proprietary information about manufacturing and\nquality control exempt from disclosure).  However,  CTA has not met its burden of establishing a\nlikelihood of substantial competitive injury to Bombardier if the percentages redacted from the\nPost -Delivery Audit of the material Bombardier itself supplies,  as Bombardier Transportation, \nwere to be released. \nto information concerning outside suppliers that Bombardier' s\ncompetitors may be able to use to reach agreements with those suppliers and ultimately submit\nmore competitive bids,  it is unclear how such information about Bombardier could be exploited\nby its competitors.  This office also notes that because LAANE is no longer seeking the redacted\nprice information,  competitors could not potentially discern from the other portions of the\nrecords the per-unit cost that Bombardier is paying for each part.  Accordingly,  this office\nconcludes that the percentages redacted from the Post -Delivery Audit with respect\nBombardier' s suppliers may be withheld under section 7( 1)( g)  of FOIA,  but that the percentages\nredacted from the Post -Delivery Audit as to the material Bombardier itself supplies are not\nexempt\nPost -Delivery Audit without redacting the percentages relating to Bombardier Transportation. \n\nfrom disclosure.  Therefore,  we ask CTA to provide the Coalition with a copy of the\n\nIn contrast\n\nto\n\nThe Buy America Compliance Certificates\n\nagreed that\n\nCTA originally withheld the Certificates in full.  In its response to this office, \nnames of the supplier\"  are not\n\nBombardier\nexempt from disclosure. 16 Bombardier has since informed this office that it would disclose the\nSource -Domestic or Foreign,\" \" Currency of the PO,\"  and the \" Complete address of location...\" \ncolumns,  as long as the \" Subcomponent Name,\" \" US %,\"  and \" Foreign %\"  columns can be\n\nthe \" name,  address and subcomponents\n\n16Letter from Sandrine Dumont,  Legal Advisor, Bombardier Transportation Americas, to Sarah\n\nPratt,  Public Access Counselor,  Office of the Attorney General ( November\n\n19,  2014),  at 5. \n\n\fMr. Andrew J.  Kahn,  Mr.  Joel D' Alba,  Ms.  Margaret Angelucci, \n\nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 8\n\nwithheld.'  7 Based on the reasoning outlined above — that competitors may focus on using\nBombardier' s suppliers and the components they supply to maximize the amount of U. S.  content\nfor their own bids — this office concludes that the information redacted from the \" US %,\" \nForeign %,\"  and corresponding \" Subcomponent Name\"  columns is exempt from disclosure\nunder section 7( 1)( g)  of FOIA.  Accordingly,  we ask CTA to provide the Certificates to the\nCoalition,  subject only to redaction of the information in the \" US %,\" \" Foreign %,\"  and\nSubcomponent Name\"  columns. \n\nThe Description of Work Final Assembly Requirements\n\nLastly,  CTA has not demonstrated that most of the redactions to the Description\n\nIt is no more descriptive than the minimum requirements for final assembly of railcars\n\nof Work are within the scope of section 7( 1)( g).  The majority of the redacted information is\ngeneric and does not appear to provide unique details of assembly or proprietary technical\ninformation that could reasonably be expected to cause Bombardier competitive harm if\ndisclosed. \nset forth in Appendix D of section 611. 11 of title 49 of the Code of Federal Regulations ( 49\nC. F. R. §  611. 11,  App.  D).  However,  CTA may redact the cost of final assembly,  excluding the\ncost of materials,  from the final paragraph because disclosure of such information could cause\ncompetitive harm by enabling competitors to undercut Bombardier in future bids.  Accordingly, \nthis office asks CTA to provide the entire Description of Work to the Coalition, except for the\ncost provided in the final paragraph. \n\nIn summary,  this office requests that CTA provide to the Coalition a copy of the\nPost -Delivery Audit,  including the Post -Delivery Purchaser' s Requirements Certification,  Post - \nDelivery Buy America Compliance Certification,  and the entire Description of Work,  except\nfor\nthe cost provided in the final paragraph:  provided,  however,  that CTA may redact\npercentages column for all suppliers except Bombardier Transportation and the costs from the\nPost -Delivery Audit.  We also ask CTA to provide the Coalition with a copy of the Certificates\nwith redaction of only the information in the \" US %,\" \" Foreign %,\"  and \" Subcomponent Name\" \n\nthe\n\ncolumns. \n\nE- mail\n\nfrom Sandrine van den Bogaard Dumont,  Legal Advisor,  Contracts and Legal Affairs, \n\nBombardier Transportation America,  to Edie Steinberg, [ Assistant Attorney General,  Public Access Bureau,  Office\nof the Attorney General] ( May 20,  2015),  at ¶ 4. \n\n\fr. Andrew J.  Kahn,  Mr.  Joel D' Alba,  Ms.  Margaret Angelucci, \nMs.  Brigett R.  Bevan,  Ms.  Sandrine Dumont\n\nJuly 22,  2016\nPage 9\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter closes this file.  Please contact me at\n312)  814- 5201 or the Chicago address listed on the first page of this letter if you have questions. \n\nVery tr ly yours, \n\nEDIE ST INBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n31664 f 71g proper improper\n\nreg auth\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Audit data on railcar component origins","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-31664/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 22, 2016\n\nVia electronic mail: \n\nMr. Andrew J. Kahn\n\nDavis, Cowell & Bowe, LLP\n\n[street address redacted for site publication -- see original PDF]\nMr. Joel D' Alba and Ms. Margaret Angelucci\n\nAsher, Gittler & D' Alba, Limited\n\n200 West Jackson Boulevard, Suite 1900\n\nChicago, Illinois 60606\n\najk@dcbsf.com\n\njad@ulaw. com and maa@ulaw. com\n\nMs. Brigett R. Bevan\n\nFOIA Officer\n\nChicago Transit Authority\n567 West Lake Street\n\nChicago, Illinois 60661\n\nFOIA@transitchicago.\n\ncom\n\nMs. Sandrine Dumont\nLegal Advisor, Contracts and Legal Affairs\n\nBombardier Transportation America\n\n1101, rue Parent\n\nSaint -Bruno, Quebec, Canada J3V 6E6\nsandrine.dumont@ca.transport.bombardier.com\n\nRE: FOIA Request for Review — 2014 PAC 31664\n\nDear Mr. Kahn, Mr. D' Alba, Ms. Angelucci, Ms. Bevan, and Ms. Dumont: \n\nThis determination is issued pursuant to section 9. 5(1) of the Freedom of\n\n1) properly withheld the percentages of railcar components\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Chicago Transit Authority's (CTA) response to Mr. \nJaime Saucedo's FOIA request: (manufactured domestically or in foreign countries that are listed within the \" Post -Delivery Buy\nAmerica Audit for the Chicago Transit Authority (CTA) Project 16796G for Professional\nServices Consultant on BAA Post -Delivery for AC Propulsion Railcars\" (Post -Delivery Audit) \nwhere the suppliers are companies other than Bombardier Transit Corporation (Bombardier); (2) \nimproperly withheld the percentages of components supplied by Bombardier; (3) properly\nwithheld the percentages and corresponding subcomponents within the accompanying \" CTA\nContract 076) Buy America Compliance Certificates\" (Certificates); and (4) improperly\nwithheld the \" Description of Work Final Assembly Requirements\" (Description of Work) in the\nPost -Delivery Audit. \n\nBACKGROUND\n\nOn July 19, 2010, CTA contracted with PB Americas, Inc. (Consultant) to\n\nconduct a post -delivery Buy America audit on railcars that CTA purchased from Bombardier.' \nOn November 2, 2010, Bombardier and Consultant entered into a non -disclosure agreement\nthat\nprohibited Consultant from disclosing \" Confidential Information to any person other than CTA\nand its permitted personnel that needs to know for the purpose of the above mentioned Audit.\" 2\nConfidential\nrailcar] Contract[,] * * * \n\nrecords and books relating to the\nthe records concerning [ Bombardier's] suppliers for said Contract[,] \n\nInformation\" means \"[ Bombardier's] financial\n\nand * * * \n\nany other documents or information, disclosed to the Consultant orally or in\n\nwriting[.] i3 Consultant submitted the Post -Delivery Audit to CTA on January 12, 2011. \n\nOn May 16, 2013, Mr. Saucedo, on behalf of the Los Angeles Alliance for a New\n\nEconomy (LAANE), submitted a FOIA request\nto the CTA seeking, among other records, the\nPost Award/ Delivery Buy America Compliance Certification.\" 4 Subsequently, Mr. Saucedo\nclarified that his request included the Post -Delivery Audit and Certificates, which are the records\nat issue here. 5 On August 12, 2014, CTA provided Mr. Saucedo with the Post -Delivery Audit\nand Certificates but redacted certain information under section 7(1)(g) of FOIA (5 ILCS\n140/ 7(1)(g) (West 2012)). On October 6, 2014, attorneys for the Jobs to Move America\nCoalition (Coalition) submitted this Request\n\nfor Review disputing the applicability of that\n\nexemption.\" \n\nOn November 7, 2014, the Public Access Bureau sent a copy of the Request\n\nfor\nReview to CTA and asked for unredacted copies of the responsive records for our confidential\nreview, together with a detailed explanation of the factual and legal bases for its assertion of\n\nsection 7(1)(g) of FOIA. On November 19, 2014, CTA provided this office with the unredacted\n\nPost -Delivery Audit at\n\n1. \n\n2 Non- Disclosure Agreement between Bombardier and Consultant (November 2, 2010), ¶ 5. \n\nNon -Disclosure Agreement between Bombardier and Consultant (November\n\n2, 2010), ¶ I. \n\n4E -mail from Jaime Saucedo to FOIA, [ Chicago Transit Authority] (May 16, 2013). \n\n5 Letter from Brigett R. Bevan, Freedom of Information Officer, Chicago Transit Authority, to\n\nJaime Saucedo, Los Angeles Alliance for a New Economy (August 12, 2014), at\n\nI. \n\n6 Letter from Joel D' Alba and Margaret Angelucci, Asher, Gittler & D' Alba, and Andrew Kahn, \n\nDavis Cowell & Bowe, Attorneys for Coalition, to Sarah Pratt, Public Access Counselor, Office of the Attorney\nGeneral (October 6, 2014). The Coalition includes the NAACP, AFL- CIO, LAANE and other groups (e- mail\nAndrew Kahn, Davis, Cowell & Bowe, to bevan@transitchicago.com and foia@transitchicago.com (May 12, \n\nIn addition, Ms. Sandrine Dumont, Legal Advisor to\nPost - Delivery Audit and Certificates. \nBombardier Transportation Americas, submitted a response letter asserting that the redacted\nsections are exempt from disclosure pursuant to section 7(1)(g) of FOIA because disclosure may\ncause competitive harm to Bombardier or some of its affiliates. On January 12, 2015, the\nCoalition replied by disputing that disclosure of the redacted information could cause\ncompetitive harm. \n\nBuy America Audits\n\nIn accordance with the requirements of section 669 of title 49 of the Code of\n\nFederal Regulations (49 C. F. R. § 661), when purchasing railcars with Federal Transit\nAdministration (FTA) funds, final assembly of the railcars must occur in the United States and\nthe cost of the components and subcomponents produced in the United States must be at least\nsixty percent of the cost of all components. 49 C. F. R. § 661. 11. To ensure compliance, FTA\nrequires that the purchasing authority (here CTA) conduct a pre -award audit of a supplier's likely\ncompliance and a post -delivery audit of a supplier's (here Bombardier's) compliance. 49 C. F. R. \n663. The pre -award audit is required before the entity receiving FTA funding may enter into a\ncontract with a supplier. 49 C. F. R. § 663. 21. The purpose of the pre -award audit is to weed out\n\nthose suppliers incapable of complying with the Buy America and purchasing authority's\nrequirements. After a contract\npost -delivery audit must be completed before a railcar's title is transferred to the purchasing\nauthority. 49 C. F. R. § 663. 31. The purpose of the post -delivery audit is to ensure the delivered\nrailcars comply with the federal regulations and the purchasing authority's requirements. \n\nis entered into between a supplier and purchasing authority, a\n\nDISCUSSION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2012); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 416 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2012). \n\nSection 7(1)(g) of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial information\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial\n\ninformation are furnished under a claim\n\nbusiness, and only insofar as the claim directly applies to the\n\nrecords requested. \n\nThe term trade secret in the context of the FOIA has been interpreted to include information\nthat (1) would either inflict substantial competitive harm or (2) make it more difficult\nfor the\nagency to induce people to submit similar information in the future.\" (Emphasis in original.) \nBlueStar Energy Services, Inc. v. Illinois Commerce Comm' n, 374 I11. App. 3d 990, 995 (1st Dist. \n2007). Under\n\nissue here, \"[ p] arties opposing disclosure need not\ndemonstrate actual competitive harm; instead, they need only show actual competition and a\nlikelihood of substantial competitive injury in order to ' bring [ that] commercial\nwithin the realm of confidentiality.\"' New Hampshire Right to Life v. U.S. Department of Health\n\nthe first prong, which is at\n\ninformation\n\nHuman Services, 778 F. 3d 43, 50 (1st Cir. 2015) (quoting Public Citizen Health Research\n\nGroup v. Food & Drug Administration, 704 F. 2d 1280, 1291 (D.C. Cir. 1983)). \n\nCiting section 7(1)(g), CTA, at the request of Bombardier, redacted from the Post - \n\nDelivery Audit and Certificates the following information at issue here: \n\n1) The percentages set forth in the percentage columns of the Post - \n\nDelivery Audit on the pages entitled \" Buy America Delivery Audit\nOn Rail Vehicle Procurement For CTA Rail Car A\" and \" Buy\nAmerica Delivery Audit On Rail Vehicle Procurement For CTA\nRail Car B[.]\"\n\n8\n\n2) Fifteen Buy America Compliance Certificates in their entireties. \nin its response to this office, Bombardier\n\nagreed that\n\nHowever, \n\nthe\n\nname, address and subcomponents\n\nnames of the suppliers\" are not\n\nFederal court\n\ninterpretations of the exemption for trade secrets in the Federal FOIA are instructive\n\nin construing section 7(1)(g). See Roulette v. Department of Centra/ Management Services, 141 111. App. 3d 394, \n400 (1st Dist. 1986). The trade secret exemption in the Federal FOIA applies to \" trade secrets and commercial or\n\nfinancial\n\ninformation obtained from a person and privileged or confidential[.]\" \n\n5 U. S. C. § 552(b)(4) (2012). \n\nPost -Delivery Audit. CTA, at the behest of Bombardier, also redacted all cost information. In a\n\nin the Public Access Bureau that the Coalition was not seeking a review of the redacted\n\ntelephone conversation on November 20, 2015, Mr. Andrew J. Kahn, attorney for the Coalition, informed an\nAssistant Attorney General\ncost information. Accordingly, we will not address the cost redactions here. CTA also withheld from the Post - \nDelivery Audit two documents that were previously provided to the Coalition: (1) Post -Delivery Purchaser's\nfrom Brigett R. \nRequirements Certification; and (2) Post -Delivery Buy America Compliance Certification (e- mail\nBevan, FOIA Officer, Chicago Transit Authority, to Andy Kahn (June 18, 2014)). Therefore we will not address\nthose redactions either, but ask CTA to supply the Coalition with a copy of the Post -Delivery Audit containing those\n\nexempt from disclosure. 9 Bombardier has since stated that it\nwould disclose the information in the \" Source -Domestic or\n\nForeign\", \" Currency of the PO\", and the \" Complete Address of\nlocation...\" columns, \nForeign %\" columns can be withheld. 10\n\nif the \" Subcomponent Name\", \" US %\", and\n\n3) The Description of Work in its entirety. However, Bombardier has\nagreed to provide this description except for the majority of the\nsecond paragraph (all but the first 13 words), the entire third\n\nparagraph, and the entire last paragraph.\" \n\nAs mentioned above, Bombardier has provided this office with documentation\n\ndemonstrating that the Post -Delivery Audit and Certificates were supplied to Consultant under\nIt is undisputed that there is actual competition in the\nclaims of privilege and confidentiality.\nrailcar market. The parties, however, disagree regarding whether disclosure of the records in\nquestion would cause competitive harm to Bombardier. \n\n12\n\nThe Percentages Listed in the Post -Delivery Audit\n\nBombardier argues that releasing the percentages redacted from the Post -Delivery\n\nAudit would cause it competitive harm by enabling competitors preparing bids for railcars to\nfocus on using Bombardier's suppliers that provide the most U. S. content. Bombardier asserts\nthat: \n\nThe percentage of US vs. foreign content for each supplier\n\nis often the result of some extensive commercial negotiations and\n\ndiscussions between Bombardier and its suppliers and in certain\n\ncase[ s], Bombardier will suggest some changes to the\n\n9 Letter from Sandrine Dumont, Legal Advisor, Bombardier Transportation Americas, to Sarah\n\nPratt, Public Access Counselor, Office of the Attorney General (November 19, 2014), at 5. \n\n10E -mail from Sandrine van den Bogaard Dumont, Legal Advisor, Contracts and Legal Affairs, \n\nBombardier Transportation America, to Edie Steinberg, [ Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General] (May 20, 2015), at ¶ 4. \n\nE- mail\n\nfrom Sandrine van den Bogaard Dumont, Legal Advisor, Contracts and Legal Affairs, \n\nBombardier Transportation America, to Edie Steinberg, [ Assistant Attorney General, Public Access Bureau, Office\nof the Attorney General] (May 20, 2015), at ¶ 1 (and accompanying pages highlighting redactions). \n\nmanufacturing print of some of its suppliers (including sometimes\nusing Bombardier's other suppliers) in order to achieve a higher\nUS content. Consequently, disclosing such percentages would\ncause competitive harm to Bombardier as it would reveal its\nmanufacturing and US content strategy. 1131\n\nThe Coalition argues that the percentages are not confidential or proprietary\n\nbecause it has elsewhere obtained percentage information in several pre -award audits (including\none in which Bombardier was audited), an interim audit, and at least one post -delivery audit. \nThe Coalition's contention is unpersuasive, however, because: (1) \nthose audits were not obtained\nunder the Illinois FOIA; and (2) one public body's decision to disclose a record does not compel\nother public bodies to do the same. \n\nThe Coalition also provided two declarations supporting its position that the\n\npercentages are not proprietary. Mr. Larry E. Salci, an independent consultant serving clients in\nthe rail\nindustry and former president of Bombardier Corporation (US), declared that: (1) \"\ninformation contained in the [ Post -Delivery Audit] of Bombardier\ninformation, excluding the detailed price information from suppliers or any defined proprietary\ntechnical\nused in bid proposals[;]\" \n\ninformation owned and utilized by suppliers and the car builder that is documented and\nand (2) \"[ t] he percentage calculations for all major components and the\n\nthe\nis generally not proprietary\n\nverification of assembly cost percentages by the car builder relative to total vehicle cost are not\nuseful information to competitors and should not be considered proprietary information or\ndisadvantageous\n\nif provided.\" 14 Additionally, Ms. Linda Nguyen - Perez, a\n\nto Bombardier * * * \n\nsenior research/ policy analyst for the Coalition, declared that \" the overall percentage of domestic\nsourcing is not something agency officials outside California have in the past appeared to give\nany weight to in their decision making so long as it exceeds the 60% minimum, and hence the\nunderlying percentage connected to_a particular supplier to a bidder [ sic] is even more irrelevant\nin competition between bidders[.]\" \n\n1' However, whether officials awarding contracts to railcar\nsuppliers give any weight to percentages that exceed 60% and whether Bombardier would be\ndisadvantaged in its own procurement activities are irrelevant to the essential question of\n\nwhether competitors could use the final cost percentages from the Post -Delivery Audit to target\nBombardier's suppliers providing the most U. S. content in order to formulate their own more\ncompetitive bids to public entities in the future, to Bombardier's disadvantage. \n\nPratt, Public Access Counselor, Office of the Attorney General (November 19, 2014), at 5. \n\nAfter reviewing the Post -Delivery Audit, the declarations provided by the\n\nCoalition, and the arguments of the Coalition and Bombardier, we conclude that CTA met its\nburden of establishing a likelihood of substantial competitive injury to Bombardier if the\npercentages redacted from the Post -Delivery Audit as to Bombardier's outside suppliers were\ndisclosed. In particular, competitors could exploit information about the parts and percentages of\n\ninformation); \n\nfuture competitor could take advantage of institutional knowledge contained in a\n\nU. S. content costs that Bombardier's suppliers provide to reach agreements with those suppliers\nto the detriment of Bombardier. See generally BlueStar Energy Services, Inc., 374 Ill. App. 3d\nat 995- 96 (settlement agreement provided in confidence to government agency from an entity the\nagency regulates exempt from disclosure); New Hampshire Right to Life, 778 F. 3d at 51 (where\npotential\nmanual and letter describing the manual, manual and letter exempt commercial\nUnited Technologies Corp. v. US. Dept. of Defense, 601 F. 3d 557, 564 (D. C. Cir. 2010) (audit\nand documents regarding the audit containing proprietary information about manufacturing and\nquality control exempt from disclosure). However, CTA has not met its burden of establishing a\nlikelihood of substantial competitive injury to Bombardier if the percentages redacted from the\nPost -Delivery Audit of the material Bombardier itself supplies, as Bombardier Transportation, \nwere to be released. \nto information concerning outside suppliers that Bombardier's\ncompetitors may be able to use to reach agreements with those suppliers and ultimately submit\nmore competitive bids, it is unclear how such information about Bombardier could be exploited\nby its competitors. This office also notes that because LAANE is no longer seeking the redacted\nprice information, competitors could not potentially discern from the other portions of the\nrecords the per-unit cost that Bombardier is paying for each part. Accordingly, this office\nconcludes that the percentages redacted from the Post -Delivery Audit with respect\nBombardier's suppliers may be withheld under section 7(1)(g) of FOIA, but that the percentages\nredacted from the Post -Delivery Audit as to the material Bombardier itself supplies are not\nexempt\nPost -Delivery Audit without redacting the percentages relating to Bombardier Transportation. \n\nfrom disclosure. Therefore, we ask CTA to provide the Coalition with a copy of the\n\nIn contrast\n\nto\n\nThe Buy America Compliance Certificates\n\nagreed that\n\nCTA originally withheld the Certificates in full. In its response to this office, \nnames of the supplier\" are not\n\nBombardier\nexempt from disclosure. 16 Bombardier has since informed this office that it would disclose the\nSource -Domestic or Foreign,\" \" Currency of the PO,\" and the \" Complete address of location...\" \ncolumns, as long as the \" Subcomponent Name,\" \" US %,\" and \" Foreign %\" columns can be\n\nwithheld.' 7 Based on the reasoning outlined above — that competitors may focus on using\nBombardier's suppliers and the components they supply to maximize the amount of U. S. content\nfor their own bids — this office concludes that the information redacted from the \" US %,\" \nForeign %,\" and corresponding \" Subcomponent Name\" columns is exempt from disclosure\nunder section 7(1)(g) of FOIA. Accordingly, we ask CTA to provide the Certificates to the\nCoalition, subject only to redaction of the information in the \" US %,\" \" Foreign %,\" and\nSubcomponent Name\" columns. \n\nThe Description of Work Final Assembly Requirements\n\nLastly, CTA has not demonstrated that most of the redactions to the Description\n\nIt is no more descriptive than the minimum requirements for final assembly of railcars\n\nof Work are within the scope of section 7(1)(g). The majority of the redacted information is\ngeneric and does not appear to provide unique details of assembly or proprietary technical\ninformation that could reasonably be expected to cause Bombardier competitive harm if\ndisclosed. \nset forth in Appendix D of section 611. 11 of title 49 of the Code of Federal Regulations (49\nC. F. R. § 611. 11, App. D). However, CTA may redact the cost of final assembly, excluding the\ncost of materials, from the final paragraph because disclosure of such information could cause\ncompetitive harm by enabling competitors to undercut Bombardier in future bids. Accordingly, \nthis office asks CTA to provide the entire Description of Work to the Coalition, except for the\ncost provided in the final paragraph. \n\nIn summary, this office requests that CTA provide to the Coalition a copy of the\nPost -Delivery Audit, including the Post -Delivery Purchaser's Requirements Certification, Post - \nDelivery Buy America Compliance Certification, and the entire Description of Work, except\nfor\nthe cost provided in the final paragraph: provided, however, that CTA may redact\npercentages column for all suppliers except Bombardier Transportation and the costs from the\nPost -Delivery Audit. We also ask CTA to provide the Coalition with a copy of the Certificates\nwith redaction of only the information in the \" US %,\" \" Foreign %,\" and \" Subcomponent Name\" \n\nthe\n\ncolumns. \n\nE- mail\n\nfrom Sandrine van den Bogaard Dumont, Legal Advisor, Contracts and Legal Affairs, \n\nBombardier Transportation America, to Edie Steinberg, [ Assistant Attorney General, Public Access Bureau, Office\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this file. Please contact me at\n312) 814- 5201 or the Chicago address listed on the first page of this letter if you have questions. \n\nVery tr ly yours, \n\nEDIE ST INBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n31664 f 71g proper improper\n\nreg auth"}
{"id":848,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-12","case_number":null,"request_numbers":["32068"],"title":"Madison County Treasurer's Office not required to create website usage report","filename":"32068, April 12, 2018.pdf","rel_path":null,"word_count":1350,"summary":"The requester sought data regarding the number of page views and time spent on specific websites by computers in the Madison County Treasurer's Office, which the PAC determined the office was not required to compile.","plain_summary":"The requester sought the number of page views and time spent on two websites by computers in the treasurer's office. The PAC determined that the request sought general data scattered across computers rather than an identifiable existing record, and FOIA does not require a public body to compile data it does not already keep in that form. The department's denial did not violate FOIA.","holding":"The Madison County Treasurer's Office did not violate FOIA because the request required the creation of new records rather than the production of existing ones.","legal_question":"Whether a public body is required under FOIA to compile data from various computers to create a report on website usage that does not exist as a pre-compiled record.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Madison County Treasurer's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"records creation","subject_description":"The request sought a compilation of website usage data from office computers that was not maintained as a pre-existing record.","ocr_status":"ok","ocr_quality":88.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Data-Requests/32068%2C%20April%2012%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["records creation","data compilation","FOIA request","public records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 12,  2018\n\nLisa Madigan\n\nAT FORNEY GENERAI\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Samuel Borders\n\nOperations Manager/ FOIA Officer\n\nMadison County Treasurer' s Office\n157 North Main Street,  Suite 125\n\nEdwardsville, \n\nIllinois 62025- 1963\n\nssborders@co. madison. il. us\n\nVia electronic mail\n\nMr.  Philip J.  Lading\nAssistant State' s Attorney,  Madison County\nSandberg,  Phoenix &  Von Gontard,  P. C. \n101 West Vandalia Street,  3rd Floor\n\nEdwardsville,  Illinois 62025\n\nplading@sandbergphoenix.\n\ncom\n\nRE:  FOIA Request for Review — 2014 PAC 32068\n\nDear\n\nMr. Borders,  and Mr. Lading: \n\nInformation Act ( FOIA) (\n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\nILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow.  the\n\n5\n\nPublic Access Bureau concludes that the response by the Madison County Treasurer' s Office\nTreasurer' s Office)  to\n\nFOIA request did not violate FOIA. \n\nOn October 22,  2014, \n\nsubmitted a FOIA request\n\nto the Treasurer' s\n\nOffice seeking: \n\n500 South Second Street.  Springfield.  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main.  Carbondale.  Illinois 62901 •  16181529- 6400 •  TTY. ( 61R1 529- 6401 •  Fax• ( 61R1 579- 6416\n\n\fMr.  Samuel Borders\n\nMr. Philip J.  Lading\nApril 12,  2018\n\nPage 2\n\nT] he number of page views and the length of time any\n\nlocated in the Madison County Treasurer' s office ( this\n\ncomputer\ndoes not have to be county computer)  spent on the following\nwebsites between June 1,  2014 and Oct.  2,  2014. \n\n1)  http:// www. suarezchemetco. com/ ( any page beginning with this\nURL) \n\n2)  https:// www. godaddy. com/ ( any page beginning with this URL) \n\nIf the information is available ( entry time/ exit time?),  I don' t need\na sum of time spent on the various sites,  an ugly download,  in a\nCSV or text file or etc.,  of relevant information will work for me.  I\n\ncan do the math.' \n\nOn October 29,  2014,  the Treasurer' s Office denied\nrequest was not for a public record pertaining to the transaction of public business. \nRequest\n\ncontested the denial. \n\nfor Review, \n\nrequest,  asserting that the\n\nIn his\n\nRequest for\nReview to the Treasurer' s Office and asked it to provide a detailed explanation of its denial.  On\n\nOn November 5,  2014,  this office forwarded a copy of\n\nNovember 25,  2014,  Mr. Philip J.  Lading,  Assistant State' s Attorney for Madison County, \nresponded on behalf of the Treasurer' s Office.  On December 29,  2014,  this office forwarded a\n\ncopy of the response by the Treasurer' s Office' s to\n\nOn January 6,  2015, \n\nreplied. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\" \napply to \" public records,\"  which means: \n\n5 ILCS 140/ 1. 2 ( West 2014).  The requirements of FOIA\n\nrecords, reports,  forms.  writings, letters,  memoranda.  books, \n\npapers,  maps,  photographs,  microfilms,  cards,  tapes,  recordings, \n\nelectronic data processing records,  electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business,  regardless of\n\n2014). \n\nE- mail from\n\nto Timothy Renick,  Samuel S.  Borders,  Cynthia M.  Ellis ( October 22, \n\n\fMr.  Samuel Borders\n\nMr. Philip J.  Lading\nApril 12,  2018\n\nPage 3\n\nphysical form or characteristics,  having been prepared by orfor, \nor having been or being used by, received by, in the possession\nof, or under the control of any public body.  5 ILCS 140/ 2( c) \nWest 2014). \n\nto inspect or copy must reasonably identify a public record and not\n\nHowever, \"[ a]  request\ngeneral data,  information,  or statistics.\"  Chicago Tribune Co.  v.  Department of Financial and\nProfessional Regulation,  2014 IL App ( 4th)  130427, ¶ 33,  8 N. E. 3d 11,  19 ( 2014). \" FOIA was\nnot designed to compel\nWaubonsee Community College,  2016 IL App ( 2d)  150836, ¶ 75,  56 N. E. 3d 1049,  1065 ( 2016). \nFurther,  FOIA does not require a public body to answer questions or generate new records in\nresponse to a FOIA request.  Kenyon v.  Garrels,  184111.  App.  3d 28,  32 ( 4th Dist.  1989). \n\nthe compilation of data not ordinarily kept by the public body.\"  Hites v. \n\nFOIA request asked the Treasurer' s Office for the number of page\n\nviews and the length of time any computer located in the Treasurer' s Office spent on two\nwebsites. \ninformation,  and did not need a sum of the time spent on the sites.  In its response to this office, \n\nstated he would accept a download of the\n\nIn his FOIA request, \n\ndid not request public records within the\n\nthe Treasurer' s Office contends that\nmeaning of FOIA,  but rather requested \" web searches or time spent on certain websites.\" 2 The\nTreasurer' s Office also asserts that\naffirmatively create documents\"  but that FOIA does not obligate it to \" create any document\nwhich does not already exist. i3\nand all other equipment used to facilitate the connection to the internet are public property make\nthe recorded electronic data public record. i4\n\nasserts that \"[ t] he fact that the computers,  servers\n\nrequest requires the Treasurer' s Office to\n\nN. E. 3d _ (\n\nIn Martinez v.  Cook County State' s Attorney' s Office, 2018 IL App ( 1st)  163153, \n2018),  the plaintiff sought records related to \"' each instance in which information\n\nobtained using a cell site simulator * * *  was used in a criminal prosecution[.]\"'  The court held\nthat such a request did not reasonably describe records under FOIA,  but instead \" generally\ndescribes '\n\ninstances,'  in which information was ' used,'  as scattered throughout\n\nrecords.\" \n\nMartinez,  2018 IL App ( 1st)  163153, ¶ 25, ,  N. E. 3d at_. \n\nThe court added: \" FOIA does not\n\nO'Brien,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( November 25,  2014). \n\n2Letter from Phillip J.  Lading.  Assistant State' s Attorney,  Madison County,  Illinois to Timothy\n\nO'Brien,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( November 25,  2014). \n\n3Letter from Phillip J.  Lading,  Assistant State' s Attorney,  Madison County,  Illinois to Timothy\n\nfrom\nBureau,  Office of the Attorney General] ( January 6,' 2015). \n\nE- mail\n\nto [ Timothy]  O' Brien, [ Assistant Attorney General,  Public Access\n\n\fMr.  Samuel Borders\n\nMr. Philip J.  Lading\nApril 12,  2018\n\nPage 4\n\ncompel the compilation of data defendant does not ordinarily keep.\"  Martinez,  2018 IL App\n1st)  163153,  1125, \n\nN. E. 3d at . \n\nSimilarly, \n\nFOIA request seeks general data concerning internet\n\nusage rather than an existing record maintained in the ordinary course of business.  This is not an\ninstance in which a requester seeks raw data that a public body previously compiled and may\naccess by searching a database;  such requests are for records subject\nSee Hites,  2016 IL App ( 2d)  150836, ¶¶  75- 80,  56 N. E. 3d at 1065- 66 ( raw data that was\npreviously compiled and available through computerized searches of a database are subject to\ndisclosure, but a public body is not required to create a listing of a database search or the tallying\nrequest would require the Treasurer' s Office to compile data\nof numbers). \nfrom all computers in its offices regarding the use of certain websites.  Because\nrequest seeks data scattered in various computers rather than reasonably describing a record that\nthe Treasurer' s Office maintains in the ordinary course of business,  this office concludes that the\nTreasurer' s Office response to\n\nrequest did not violate FOIA. \n\nto disclosure under FOIA. \n\nInstead, \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nRG\n\nAssistant Attorney General\nPublic Access Bureau\n\n32068 f 3d proper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the Madison County Treasurer's Office to track and report how much time employees spent on certain websites across various office computers. The Attorney General's office ruled that the Treasurer's Office did not violate the law because FOIA does not require public bodies to create new records or compile data that they do not already maintain in the ordinary course of business.","card_headline":"Website usage data from office computers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-32068/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 12, 2018\n\nLisa Madigan\n\nAT FORNEY GENERAI\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Samuel Borders\n\nOperations Manager/ FOIA Officer\n\nMadison County Treasurer's Office\n157 North Main Street, Suite 125\n\nEdwardsville, \n\nIllinois 62025- 1963\n\nssborders@co. madison. il. us\n\nVia electronic mail\n\nMr. Philip J. Lading\nAssistant State's Attorney, Madison County\nSandberg, Phoenix & Von Gontard, P. C. \n101 West Vandalia Street, 3rd Floor\n\nEdwardsville, Illinois 62025\n\nplading@sandbergphoenix.\n\ncom\n\nRE: FOIA Request for Review — 2014 PAC 32068\n\nDear\n\nMr. Borders, and Mr. Lading: \n\nInformation Act (FOIA) (This determination letter is issued pursuant to section 9. 5(0 of the Freedom of\nILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow. the\n\n5\n\nPublic Access Bureau concludes that the response by the Madison County Treasurer's Office\nTreasurer's Office) to\n\nFOIA request did not violate FOIA. \n\nOn October 22, 2014, \n\nsubmitted a FOIA request\n\nto the Treasurer's\n\nOffice seeking: \n\nT] he number of page views and the length of time any\n\nlocated in the Madison County Treasurer's office (this\n\ncomputer\ndoes not have to be county computer) spent on the following\nwebsites between June 1, 2014 and Oct. 2, 2014. \n\n1) http:// www. suarezchemetco. com/ (any page beginning with this\nURL) \n\n2) https:// www. godaddy. com/ (any page beginning with this URL) \n\nIf the information is available (entry time/ exit time?), I don' t need\na sum of time spent on the various sites, an ugly download, in a\nCSV or text file or etc., of relevant information will work for me. I\n\ncan do the math.' \n\nOn October 29, 2014, the Treasurer's Office denied\nrequest was not for a public record pertaining to the transaction of public business. \nRequest\n\ncontested the denial. \n\nfor Review, \n\nrequest, asserting that the\n\nIn his\n\nRequest for\nReview to the Treasurer's Office and asked it to provide a detailed explanation of its denial. On\n\nOn November 5, 2014, this office forwarded a copy of\n\nNovember 25, 2014, Mr. Philip J. Lading, Assistant State's Attorney for Madison County, \nresponded on behalf of the Treasurer's Office. On December 29, 2014, this office forwarded a\n\ncopy of the response by the Treasurer's Office's to\n\nOn January 6, 2015, \n\nreplied. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\" \napply to \" public records,\" which means: \n\n5 ILCS 140/ 1. 2 (West 2014). The requirements of FOIA\n\nrecords, reports, forms. writings, letters, memoranda. books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\n\nphysical form or characteristics, having been prepared by orfor, \nor having been or being used by, received by, in the possession\nof, or under the control of any public body. 5 ILCS 140/ 2(c) \nWest 2014). \n\nto inspect or copy must reasonably identify a public record and not\n\nHowever, \"[ a] request\ngeneral data, information, or statistics.\" Chicago Tribune Co. v. Department of Financial and\nProfessional Regulation, 2014 IL App (4th) 130427, ¶ 33, 8 N. E. 3d 11, 19 (2014). \" FOIA was\nnot designed to compel\nWaubonsee Community College, 2016 IL App (2d) 150836, ¶ 75, 56 N. E. 3d 1049, 1065 (2016). \nFurther, FOIA does not require a public body to answer questions or generate new records in\nresponse to a FOIA request. Kenyon v. Garrels, 184111. App. 3d 28, 32 (4th Dist. 1989). \n\nthe compilation of data not ordinarily kept by the public body.\" Hites v. \n\nFOIA request asked the Treasurer's Office for the number of page\n\nviews and the length of time any computer located in the Treasurer's Office spent on two\nwebsites. \ninformation, and did not need a sum of the time spent on the sites. In its response to this office, \n\nstated he would accept a download of the\n\nIn his FOIA request, \n\ndid not request public records within the\n\nthe Treasurer's Office contends that\nmeaning of FOIA, but rather requested \" web searches or time spent on certain websites.\" 2 The\nTreasurer's Office also asserts that\naffirmatively create documents\" but that FOIA does not obligate it to \" create any document\nwhich does not already exist. i3\nand all other equipment used to facilitate the connection to the internet are public property make\nthe recorded electronic data public record. i4\n\nasserts that \"[ t] he fact that the computers, servers\n\nrequest requires the Treasurer's Office to\n\nN. E. 3d _ (In Martinez v. Cook County State's Attorney's Office, 2018 IL App (1st) 163153, \n2018), the plaintiff sought records related to \"' each instance in which information\n\nobtained using a cell site simulator * * * was used in a criminal prosecution[.]\"' The court held\nthat such a request did not reasonably describe records under FOIA, but instead \" generally\ndescribes '\n\ninstances,' in which information was ' used,' as scattered throughout\n\nrecords.\" \n\nMartinez, 2018 IL App (1st) 163153, ¶ 25,, N. E. 3d at_. \n\nThe court added: \" FOIA does not\n\nO'Brien, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (November 25, 2014). \n\n2 Letter from Phillip J. Lading. Assistant State's Attorney, Madison County, Illinois to Timothy\n\nO'Brien, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (November 25, 2014). \n\n3 Letter from Phillip J. Lading, Assistant State's Attorney, Madison County, Illinois to Timothy\n\ncompel the compilation of data defendant does not ordinarily keep.\" Martinez, 2018 IL App\n1st) 163153, 1125, \n\nN. E. 3d at. \n\nSimilarly, \n\nFOIA request seeks general data concerning internet\n\nusage rather than an existing record maintained in the ordinary course of business. This is not an\ninstance in which a requester seeks raw data that a public body previously compiled and may\naccess by searching a database; such requests are for records subject\nSee Hites, 2016 IL App (2d) 150836, ¶¶ 75- 80, 56 N. E. 3d at 1065- 66 (raw data that was\npreviously compiled and available through computerized searches of a database are subject to\ndisclosure, but a public body is not required to create a listing of a database search or the tallying\nrequest would require the Treasurer's Office to compile data\nof numbers). \nfrom all computers in its offices regarding the use of certain websites. Because\nrequest seeks data scattered in various computers rather than reasonably describing a record that\nthe Treasurer's Office maintains in the ordinary course of business, this office concludes that the\nTreasurer's Office response to\n\nrequest did not violate FOIA. \n\nto disclosure under FOIA. \n\nInstead, \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nRG\n\nAssistant Attorney General\nPublic Access Bureau\n\n32068 f 3d proper co"}
{"id":849,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-03-29","case_number":null,"request_numbers":["32130"],"title":"Village of Forest Park no violation for withholding police video under law enforcement exemptions","filename":"32130, Issued March 29, 2019.pdf","rel_path":null,"word_count":1285,"summary":"The requester sought police video footage of a hit-and-run incident, which the Village of Forest Park denied under various FOIA exemptions; the PAC determined the Village did not improperly deny the request at the time it was submitted.","plain_summary":"The question was whether the Village of Forest Park properly withheld surveillance videos of a hit-and-run under FOIA Section 7(1)(d) exemptions, including an unargued but implicated Section 7(1)(d)(iii) fair-trial exemption. The Public Access Bureau held that the Village did not improperly deny the request at the time it was submitted, because disclosure during the pendency of the criminal prosecution would have created a substantial likelihood of depriving the defendant of a fair trial. The reasoning applied the federal analog under 5 U.S.C. 552(b)(7)(B), requiring a showing that a trial is pending or imminent and that disclosure would more probably than not seriously interfere with the fairness of the proceedings. The Bureau noted that the videos contained witness and defendant statements whose disclosure could have influenced testimony, but suggested the same rationale might no longer apply if a new request were submitted later. No binding opinion was issued.","holding":"A public body may withhold records under 5 ILCS 140/7(1)(d)(iii) when disclosure at the time of the request creates a substantial likelihood of depriving a defendant of a fair trial, even if the exemption was not expressly cited but is clearly implicated by the body's stated rationale.","legal_question":"Whether the Village of Forest Park properly denied a FOIA request for police video footage under exemptions related to private information and law enforcement proceedings.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(d)(i)","7(1)(d)(ii)","7(1)(d)(vii)"],"public_body":"Village of Forest Park","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought video footage from a June 2014 hit-and-run incident.","ocr_status":"ok","ocr_quality":92.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iii/32130%2C%20Issued%20March%2029%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","video footage","hit and run","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 29,  2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL. \n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Vanessa Moritz\n\nVillage Clerk\n\nVillage of Forest Park\n\n517 Desplaines Avenue\n\nForest Park,  Illinois 60130\n\nvmoritz@forestpark. net\n\nRE:  FOIA Request\n\nfor Review—  2014 PAC 32130\n\nDear\n\nand Ms.  Moritz: \n\nThis determination is issued pursuant\n\nto section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016))) \n\nFor the reasons stated below,  the\n\nPublic Access Bureau concludes that the Village of Forest Park ( Village)  did not improperly\ndeny\ntime that it was submitted. \n\nOctober 6,  2014,  FOIA request at the\n\nand\n\nOn October 6,  2014, \n\nsubmitted a FOIA request\n\nto the\n\nVillage seeking copies of all videos from June 1,  2,  and 3,  2014,  regarding a June 1,  2014,  hit\nand run incident.  On that same date,  the Village denied the request pursuant to sections 7( 1)( b), \n\n7( 1)( d)( i),  7( 1)( d)( ii),  and 7( 1)( d)( vii)  of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( d)( i), ( 1)( d)( ii), \n1)( d)( vii) ( West 2014)).  The Village stated: \" These are videos taken during questioning for this\n\nIn issuing this letter, we recognize that it is coming long after the FOIA dispute took place. \n\nBecause it raises a legal question that may reoccur,  however,  this letter is intended to provide guidance to the\nrequester and public body. \n\n500 South Second Street,  Springfield,  Illinois 62701 • (\nIllinois 60601 • (\n\n217)  782- 1090 • ' CFI: (877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago, \n312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave..  Carbondale,  IL 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax ( 618)  529- 6416 • \n\n\fThe Honorable Vanessa Moritz\n\nMarch 29,  2019\n\nPage 2\n\nfatal hit and run.  All videos are evidence that will likely be used during this upcoming trial.\" 2\nOn October 31,  2014,  this office received\nthe Village' s denial.  They stated that their son was killed during the hit and run,  and that the\nsuspect had been indicted. \n\nfor Review contesting\n\nRequest\n\nOn November 13,  2014,  the Public Access Bureau forwarded a copy of the\n\nRequest for Review to the Village and asked it to provide copies of the withheld records for this\noffice' s confidential\n\nreview,  together with a detailed explanation of the factual and legal bases for\n\nwithholding the requested videos in their entireties.  On November 26,  2014,  the Village\nprovided this office with those materials.  Certain portions of the Village's answer were\nsubmitted under a claim of confidentiality,  restricting this office from disclosing that information\nto\nresponse letter to the requesters;  on December 22,  2014, this office received their reply. \n\nOn December 3,  2014,  this office forwarded a copy of the Village' s\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Dep' t of Public Health,  218 Ill. 2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be construed narrowly.  Lieber v. \nBoard of Trustees of Southern Illinois Univ.,  176 111.  2d 401; 408 ( 1997). \n\nAlthough the Village did not expressly cite section 7( I)( d)( iii)  of FOIA ( 5 ILCS\n140/ 7( 1)( d)( iii) (West 2014)),  the Village' s argument clearly invoked that exemption.  Section\n7( 1)( d)( iii) exempts from disclosure: \n\nd)  Records in the possession of any public body created in\nthe course of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n2E -mail from Vanessa Moritz to\n\nOctober 6,  2014). \n\nanswer to the person submitting the request for review, with any alleged confidential\nrequest pertains redacted from the copy.\"). \n\n5 ILCS 140/ 9. 5( d) ( West 2016) (\" The Public Access Counselor shall forward a copy of the\ninformation to which the\n\n\fThe Honorable Vanessa Moritz\n\nMarch 29,  2019\n\nPage 3\n\niii)  create a substantial\n\nlikelihood that a person will\n\nbe deprived of a fair trial or impartial hearing[.] \n\nTo demonstrate that records are exempt\nFederal FOIA ( 5 U. S. C. § 552( b)( 7)( B) ( 2018)),  an agency must establish: \"(\nadjudication is pending or truly imminent;  and ( 2)  that it is more probable than not that\ndisclosure of the material sought would seriously interfere with the fairness of those\nproceedings.\"  Washington Post Co.  v.  U.S. Dep' t ofJustice,  863 F. 2d 96,  102 ( D. C.  Cir.  1988). \n\nfrom disclosure under the corresponding provision of the\n\nthat a trial or\n\n1) \n\nIn the non -confidential part of its response to this office,  the Village confirmed\n\nthat the indicted suspect was awaiting trial and stated: \"\nIn consultation with the Cook County\nState' s Attorney' s Office,  the Village determined that disclosure of these requested records to\n\nduring the pendency of this prosecution would greatly interfere with these law\n\nenforcement proceedings.\" 4 The Village further asserted: \n\nB] ecause the records requested in\n\nFOIA\n\nrequest contain evidence that will likely be introduced at trial, \ndisclosure of these records would interfere with the Cook County\nState' s Attorneys pending prosecution,  as well as deprive the\ndefendant of a fair trial by exposing information that could impair\njurors'  ability to decide this case fairly. l51\n\nIn the confidential portions of its response,  the Village elaborated on why disclosure of the\nvideos at the time of the request would have jeopardized the fairness of the impending trial. \n\nDue to the nature of the videos and the timing of the FOIA request,  it is apparent\nthere was a substantial\nlikelihood that disclosure of the videos at that time would have interfered\nwith the fairness of the impending trial.  In particular, videos of statements by the defendant and\nother witnesses could have provided insights that had the potential to alter or otherwise affect the\n\ntestimony of the defendant or other witnesses if called to testify.  Accordingly,  this office\nconcludes that the Village did not improperly deny the FOIA request at the time that it was\nsubmitted.  Nonetheless,  if the requesters still seek copies of the videos,  they may wish to submit\n\nLetter from Erin C.  Moriarty, One of the attorneys for the Village of Forest Park,  Storino, \n\nRamello &  Durkin,  to Josh Jones,  Assistant Attorney General,  Public Access Bureau,  Office of the Illinois Attorney\nGeneral ( November 26,  2014),  at 2. \n\n5Letter from Erin C.  Moriarty,  One of the attorneys for the Village of Forest Park,  Storino, \n\nRamello &  Durkin,  to Josh Jones,  Assistant Attorney General,  Public Access Bureau,  Office of the Illinois Attorney\nGeneral ( November 26,  2014),  at 2. \n\n\fThe Honorable Vanessa Moritz\n\nMarch 29,  2019\n\nPage 4\n\na new FOIA request to the Village, as the same rationale for withholding the videos in their\nentireties no longer applies. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at ( 312)  814- 8413,  jjones@atg. state. il.us,  or at the Chicago address listed on\nthe first page of this letter. \n\nVery truly yours, \n\nJOSHUA M.  JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n32130 f 71 diii proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police video of a hit-and-run incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-32130/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 29, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL. \n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Vanessa Moritz\n\nVillage Clerk\n\nVillage of Forest Park\n\n517 Desplaines Avenue\n\nForest Park, Illinois 60130\n\nvmoritz@forestpark. net\n\nRE: FOIA Request\n\nfor Review— 2014 PAC 32130\n\nDear\n\nand Ms. Moritz: \n\nThis determination is issued pursuant\n\nto section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016))) \n\nFor the reasons stated below, the\n\nPublic Access Bureau concludes that the Village of Forest Park (Village) did not improperly\ndeny\ntime that it was submitted. \n\nOctober 6, 2014, FOIA request at the\n\nand\n\nOn October 6, 2014, \n\nsubmitted a FOIA request\n\nto the\n\nVillage seeking copies of all videos from June 1, 2, and 3, 2014, regarding a June 1, 2014, hit\nand run incident. On that same date, the Village denied the request pursuant to sections 7(1)(b), \n\n7(1)(d)(i), 7(1)(d)(ii), and 7(1)(d)(vii) of FOIA (5 ILCS 140/ 7(1)(b), (1)(d)(i), (1)(d)(ii), \n1)(d)(vii) (West 2014)). The Village stated: \" These are videos taken during questioning for this\n\nIn issuing this letter, we recognize that it is coming long after the FOIA dispute took place. \n\nBecause it raises a legal question that may reoccur, however, this letter is intended to provide guidance to the\nrequester and public body. \n\nfatal hit and run. All videos are evidence that will likely be used during this upcoming trial.\" 2\nOn October 31, 2014, this office received\nthe Village's denial. They stated that their son was killed during the hit and run, and that the\nsuspect had been indicted. \n\nfor Review contesting\n\nRequest\n\nOn November 13, 2014, the Public Access Bureau forwarded a copy of the\n\nRequest for Review to the Village and asked it to provide copies of the withheld records for this\noffice's confidential\n\nreview, together with a detailed explanation of the factual and legal bases for\n\nwithholding the requested videos in their entireties. On November 26, 2014, the Village\nprovided this office with those materials. Certain portions of the Village's answer were\nsubmitted under a claim of confidentiality, restricting this office from disclosing that information\nto\nresponse letter to the requesters; on December 22, 2014, this office received their reply. \n\nOn December 3, 2014, this office forwarded a copy of the Village's\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Dep' t of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). The exemptions from disclosure are to be construed narrowly. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 111. 2d 401; 408 (1997). \n\nAlthough the Village did not expressly cite section 7(I)(d)(iii) of FOIA (5 ILCS\n140/ 7(1)(d)(iii) (West 2014)), the Village's argument clearly invoked that exemption. Section\n7(1)(d)(iii) exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n2E -mail from Vanessa Moritz to\n\niii) create a substantial\n\nlikelihood that a person will\n\nbe deprived of a fair trial or impartial hearing[.] \n\nTo demonstrate that records are exempt\nFederal FOIA (5 U. S. C. § 552(b)(7)(B) (2018)), an agency must establish: \"(adjudication is pending or truly imminent; and (2) that it is more probable than not that\ndisclosure of the material sought would seriously interfere with the fairness of those\nproceedings.\" Washington Post Co. v. U.S. Dep' t ofJustice, 863 F. 2d 96, 102 (D. C. Cir. 1988). \n\nfrom disclosure under the corresponding provision of the\n\nthat a trial or\n\n1) \n\nIn the non -confidential part of its response to this office, the Village confirmed\n\nthat the indicted suspect was awaiting trial and stated: \"\nIn consultation with the Cook County\nState's Attorney's Office, the Village determined that disclosure of these requested records to\n\nduring the pendency of this prosecution would greatly interfere with these law\n\nenforcement proceedings.\" 4 The Village further asserted: \n\nB] ecause the records requested in\n\nFOIA\n\nrequest contain evidence that will likely be introduced at trial, \ndisclosure of these records would interfere with the Cook County\nState's Attorneys pending prosecution, as well as deprive the\ndefendant of a fair trial by exposing information that could impair\njurors' ability to decide this case fairly. l51\n\nIn the confidential portions of its response, the Village elaborated on why disclosure of the\nvideos at the time of the request would have jeopardized the fairness of the impending trial. \n\nDue to the nature of the videos and the timing of the FOIA request, it is apparent\nthere was a substantial\nlikelihood that disclosure of the videos at that time would have interfered\nwith the fairness of the impending trial. In particular, videos of statements by the defendant and\nother witnesses could have provided insights that had the potential to alter or otherwise affect the\n\ntestimony of the defendant or other witnesses if called to testify. Accordingly, this office\nconcludes that the Village did not improperly deny the FOIA request at the time that it was\nsubmitted. Nonetheless, if the requesters still seek copies of the videos, they may wish to submit\n\nLetter from Erin C. Moriarty, One of the attorneys for the Village of Forest Park, Storino, \n\nRamello & Durkin, to Josh Jones, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (November 26, 2014), at 2. \n\n5 Letter from Erin C. Moriarty, One of the attorneys for the Village of Forest Park, Storino, \n\nRamello & Durkin, to Josh Jones, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\n\na new FOIA request to the Village, as the same rationale for withholding the videos in their\nentireties no longer applies. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at (312) 814- 8413, jjones@atg. state. il.us, or at the Chicago address listed on\nthe first page of this letter. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n32130 f 71 diii proper mun"}
{"id":850,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-03-31","case_number":null,"request_numbers":["34055"],"title":"Winnebago County Sheriff's Office improperly denied dashcam footage under FOIA exemption 2.15(c)","filename":"34055, issued March 31, 2015.pdf","rel_path":null,"word_count":1209,"summary":"The Winnebago County Sheriff's Office improperly denied a FOIA request for dash camera video and police reports related to a fatal crash by citing a pending case exemption that did not apply because the individual involved had already been convicted. The PAC determined the records must be disclosed, subject to appropriate redactions of private information.","plain_summary":"A reporter requested dashcam footage and police records from the Winnebago County Sheriff's Office regarding a fatal crash. The Sheriff's Office denied the request, citing a pending post-sentencing motion. The Illinois Attorney General's Public Access Bureau determined the denial was improper because the Sheriff's Office did not show how disclosure would interfere with the pending proceeding at this post-conviction stage, and much of the requested records were not among the types of arrest report information that could be withheld under section 2.15(c). The Attorney General requested the Sheriff's Office to release the records subject to redactions for private information.","holding":"The Winnebago County Sheriff's Office improperly denied the FOIA request because it failed to demonstrate that disclosure would interfere with a pending law enforcement proceeding, and the requested records were not within the scope of the section 2.15(c) exemption for certain arrest report information.","legal_question":"Whether the 'pending case' exemption under section 2.15(c) of FOIA applies to records after a conviction has been entered in the underlying criminal matter.","disposition":"violation_found","primary_statute":["5 ILCS 140/2.15(c)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["2.15(c)"],"public_body":"Winnebago County Sheriff's Office","requesting_party":"Mr. Jeff Kolkey (Rockford Register Star)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought dash camera video and police reports concerning a fatal vehicle pursuit and subsequent arrest.","ocr_status":"ok","ocr_quality":92.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.15/34055%2C%20issued%20March%2031%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","dashcam video","pending case exemption","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 31, 2015\n\nVia electronic mail\n\nMr, Jeff Kolkey\n\nStaff Writer\n\nRockford Register Star\n[street address redacted for site publication -- see original PDF]\njkolkey@rrstar.com\n\nVia electronic mail\n\nCaptain Annette Retzlaff\n\nRecords Manager\n\nWinnebago County Sheriff's Office\n650 West State Street\n\nRockford, Illinois 61102\nretzlaffA@weso-il.us\n\nRE: FOIA Request for Review — 2015 PAC 34055\n\nDear Mr. Kolkey and Captain Retzlaff:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2012), as amended by Public Act 98-1129,\neffective December 3, 2014). For the reasons stated below, the Public Access Bureau concludes\nthat the Winnebago County Sheriff's Office (Sheriff's Office) improperly denied Mr. Jeff\nKolkey’ s March 5, 2015, FOIA request.\n\nOn that date, Mr. Kolkey submitted a FOIA request to the Sheriffs Office seeking\ncopies of the dash camera video recording of the police pursuit and fatal crash that resulted in the\narrest of well as related police reports and other documentation. On\nMarch 9, 2015, the Sheriff's Office denied the request under section 2.15(c) of FOIA (5 ILCS\n140/2. 15(c), (West 2012)), asserting that this provision \"exempts a pending case from being\n\n$00 South Second Street, Springfield, IMinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondate, Iltinois 62901 * (618) 529-6400 » TTY: (618) 529-6403 + Fax: (618) 529-6416\n\n\nCaptain Annette Retzlaff\nMarch 31, 2015\nPage 2\n\nreleased.\"' (Emphasis in original). Mr. Kolkey disputes that denial, noting that has\nalready been convicted and sentenced.\n\nOn March 17, 2015, this office forwarded a copy of the Request for Review to the\nSheriff's Office and asked it to provide a detailed explanation of the factual and legal bases for\nthe assertion that section 2.15(c) of FOIA is a valid basis for withholding the responsive records,\nincluding an explanation as to why the Sheriff's Office believes the records concern a pending\ncase and how disclosure of the records would interfere with a pending case. We also requested a\nrepresentative sample of the records that were withheld for our confidential review. On March\n30! 2015, this office received the Sheriff's Office's response stating that a post-sentencing motion\nis pending in the underlying court case, and that the Sheriff's Office intends to disclose the\nrecords to Mr. Kolkey after the conclusion of the trial court proceedings; no records were\nincluded with that response.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body \"are presumed to\nbelopen to inspection and copying.\" 5 ILCS 140/1.2 (West 2012); see also Southern Illinoisan v.\nMlinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2012).\n\nSection 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2012)) generally requires the\ndisclosure of the following arrest report information:\n\n(i) information that identifies the individual, including the\nname, age, address, and photograph, when and if available; (ii)\ninformation detailing any charges relating to the arrest; (iii) the\ntime and location of the arrest; (iv) the name of the investigating or\narresting law enforcement agency; (v) if the individual is\nincarcerated, the amount of any bail or bond; and (vi) if the\nindividual is incarcerated, the time and date that the\nindividual was received into, discharged from, or transferred from\nthe arresting agency's custody.\n\nInformation referenced in subsections (iii) through (vi) of section 2.15(a) may be withheld, but\nonly if its \"disclosure would: (i) interfere with pending or actually and reasonably contemplated\nlaw enforcement proceedings conducted by any law enforcement agency; (ii) endanger the life or\n\n‘Letter from Captain Annette Retzlaff, Records Manager, Rockford County Sheriff's Office, to\nff Kolkey (March 9, 2015).\n\n\nCaptain Annette Retzlaff\nMarch 31, 2015\n\nphysical safety of law enforcement or correctional personnel or any other person; or (iii)\ncompromise the security of any correctional facility.\" 5 ILCS 140/2.15(c) (West 2012).\n\nThe recording and much of the written documentation sought by Mr. Kolkey are\nnot among the four types of arrest report information that may be withheld under section 2.15(c)\nif disclosure would interfere with a pending law enforcement proceeding. Therefore, section\n2.15(c) does not provide a basis for withholding the records in their entireties. To the extent that\ndiscrete portions of records in question do contain information set forth in subsections (iii)\nthrough (vi) of section 2.15(c), the Sheriff's Office's mere citation to a pending post-sentencing\nmotion is unavailing. The Sheriff's Office has not provided facts from which we could conclude\nthat disclosure of the records at this post-conviction stage of the prosecution would interfere with\nthat proceeding.\n\nNor are the records exempt from disclosure pursuant to section 7(1)(d)(i) of FOIA\n(5 ILCS 140/7(1)(d)(i) (West 2013 Supp.), as amended by Public Act 98-695, effective\nDecember 3, 2014), which permits a public body to withhold information that would \"interfere\nwith pending or actually and reasonably contemplated law enforcement proceedings conducted\nby lany law enforcement or correctional agency that is the recipient of the request{.]\"\n(Emphasis added.) The Sheriff's Office is not conducting the trial court proceedings that it cited\nas its basis for withholding the records, and it has not demonstrated or asserted that disclosure of\nthe records would interfere with any pending or actually and reasonably contemplated law\nenforcement proceeding that the Sheriff's Office is conducting. Accordingly, we conclude that\nthe Sheriff's Office improperly denied Mr. Kolkey’s request.\n\nIn accordance with this determination, we request that the Sheriff's Office furnish\ncopies of the requested records to Mr. Kolkey, subject to appropriate redactions pursuant to\nsections 7(1)(b) and 7(1)(d)(iv) of FOIA? (5 ILCS 140/7(1)(b), (1)(d)Giv) (West 2013 Supp.), as\n\nSection 7(1)(d{iv) exempts from disclosure information that would \"unavoidably disclose the\nidentity of a confidential source, confidential information furnished only by the confidential source, or persons who\nfi le complaints with or provide information to administrative, investigative, law enforcement, or penal agencies;”\nsection 7(1)(b) exempts from disclosure \"private information\", which FOIA defines as:\n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by Jaw or when compiled without possibility of attribution to\nany person. 5 ILCS 140/2(c-5) (West 2013 Supp), as amended by Public Act\n98-1129, effective December 3, 2014, 98-806, effective January 1, 2015)\n\n\nCaptain Annette Retzlaff\nMarch 31, 2015\nPage 4\n\namended by Public Act 98-695, effective July 3, 2014). If any information is redacted, the\nSheriff's Office must provide Mr. Kolkey with a supplemental written response that includes a\ndetailed factual basis for the applicability of any asserted exemptions. See 5 ILCS 140/9(a)\n\n(West 2012).\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnotjrequire the issuance of a binding opinion. If you have any questions, please contact me at\n(312) 814-6756. This letter serves to close this file.\n\n34055 f 2.15 improper county\n\nAssistant Bureau Chief\nPublic Access Bureau\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Dash-cam video and police reports of a fatal pursuit","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-34055/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 31, 2015\n\nVia electronic mail\n\nMr, Jeff Kolkey\n\nStaff Writer\n\nRockford Register Star\n[street address redacted for site publication -- see original PDF]\njkolkey@rrstar.com\n\nVia electronic mail\n\nCaptain Annette Retzlaff\n\nRecords Manager\n\nWinnebago County Sheriff's Office\n650 West State Street\n\nRockford, Illinois 61102\nretzlaffA@weso-il.us\n\nRE: FOIA Request for Review — 2015 PAC 34055\n\nDear Mr. Kolkey and Captain Retzlaff:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2012), as amended by Public Act 98-1129,\neffective December 3, 2014). For the reasons stated below, the Public Access Bureau concludes\nthat the Winnebago County Sheriff's Office (Sheriff's Office) improperly denied Mr. Jeff\nKolkey’ s March 5, 2015, FOIA request.\n\nOn that date, Mr. Kolkey submitted a FOIA request to the Sheriffs Office seeking\ncopies of the dash camera video recording of the police pursuit and fatal crash that resulted in the\narrest of well as related police reports and other documentation. On\nMarch 9, 2015, the Sheriff's Office denied the request under section 2.15(c) of FOIA (5 ILCS\n140/2. 15(c), (West 2012)), asserting that this provision \"exempts a pending case from being\n\nreleased.\"' (Emphasis in original). Mr. Kolkey disputes that denial, noting that has\nalready been convicted and sentenced.\n\nOn March 17, 2015, this office forwarded a copy of the Request for Review to the\nSheriff's Office and asked it to provide a detailed explanation of the factual and legal bases for\nthe assertion that section 2.15(c) of FOIA is a valid basis for withholding the responsive records,\nincluding an explanation as to why the Sheriff's Office believes the records concern a pending\ncase and how disclosure of the records would interfere with a pending case. We also requested a\nrepresentative sample of the records that were withheld for our confidential review. On March\n30! 2015, this office received the Sheriff's Office's response stating that a post-sentencing motion\nis pending in the underlying court case, and that the Sheriff's Office intends to disclose the\nrecords to Mr. Kolkey after the conclusion of the trial court proceedings; no records were\nincluded with that response.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body \"are presumed to\nbelopen to inspection and copying.\" 5 ILCS 140/1.2 (West 2012); see also Southern Illinoisan v.\nMlinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2012).\n\nSection 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2012)) generally requires the\ndisclosure of the following arrest report information:\n\n(i) information that identifies the individual, including the\nname, age, address, and photograph, when and if available; (ii)\ninformation detailing any charges relating to the arrest; (iii) the\ntime and location of the arrest; (iv) the name of the investigating or\narresting law enforcement agency; (v) if the individual is\nincarcerated, the amount of any bail or bond; and (vi) if the\nindividual is incarcerated, the time and date that the\nindividual was received into, discharged from, or transferred from\nthe arresting agency's custody.\n\nInformation referenced in subsections (iii) through (vi) of section 2.15(a) may be withheld, but\nonly if its \"disclosure would: (i) interfere with pending or actually and reasonably contemplated\nlaw enforcement proceedings conducted by any law enforcement agency; (ii) endanger the life or\n\n‘Letter from Captain Annette Retzlaff, Records Manager, Rockford County Sheriff's Office, to\nff Kolkey (March 9, 2015).\n\nCaptain Annette Retzlaff\nMarch 31, 2015\n\nphysical safety of law enforcement or correctional personnel or any other person; or (iii)\ncompromise the security of any correctional facility.\" 5 ILCS 140/2.15(c) (West 2012).\n\nThe recording and much of the written documentation sought by Mr. Kolkey are\nnot among the four types of arrest report information that may be withheld under section 2.15(c)\nif disclosure would interfere with a pending law enforcement proceeding. Therefore, section\n2.15(c) does not provide a basis for withholding the records in their entireties. To the extent that\ndiscrete portions of records in question do contain information set forth in subsections (iii)\nthrough (vi) of section 2.15(c), the Sheriff's Office's mere citation to a pending post-sentencing\nmotion is unavailing. The Sheriff's Office has not provided facts from which we could conclude\nthat disclosure of the records at this post-conviction stage of the prosecution would interfere with\nthat proceeding.\n\nNor are the records exempt from disclosure pursuant to section 7(1)(d)(i) of FOIA\n(5 ILCS 140/7(1)(d)(i) (West 2013 Supp.), as amended by Public Act 98-695, effective\nDecember 3, 2014), which permits a public body to withhold information that would \"interfere\nwith pending or actually and reasonably contemplated law enforcement proceedings conducted\nby lany law enforcement or correctional agency that is the recipient of the request{.]\"\n(Emphasis added.) The Sheriff's Office is not conducting the trial court proceedings that it cited\nas its basis for withholding the records, and it has not demonstrated or asserted that disclosure of\nthe records would interfere with any pending or actually and reasonably contemplated law\nenforcement proceeding that the Sheriff's Office is conducting. Accordingly, we conclude that\nthe Sheriff's Office improperly denied Mr. Kolkey’s request.\n\nIn accordance with this determination, we request that the Sheriff's Office furnish\ncopies of the requested records to Mr. Kolkey, subject to appropriate redactions pursuant to\nsections 7(1)(b) and 7(1)(d)(iv) of FOIA? (5 ILCS 140/7(1)(b), (1)(d)Giv) (West 2013 Supp.), as\n\nSection 7(1)(d{iv) exempts from disclosure information that would \"unavoidably disclose the\nidentity of a confidential source, confidential information furnished only by the confidential source, or persons who\nfi le complaints with or provide information to administrative, investigative, law enforcement, or penal agencies;”\nsection 7(1)(b) exempts from disclosure \"private information\", which FOIA defines as:\n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\n\namended by Public Act 98-695, effective July 3, 2014). If any information is redacted, the\nSheriff's Office must provide Mr. Kolkey with a supplemental written response that includes a\ndetailed factual basis for the applicability of any asserted exemptions. See 5 ILCS 140/9(a)\n\n(West 2012).\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnotjrequire the issuance of a binding opinion. If you have any questions, please contact me at\n(312) 814-6756. This letter serves to close this file.\n\n34055 f 2.15 improper county\n\nAssistant Bureau Chief\nPublic Access Bureau"}
{"id":851,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-03-27","case_number":null,"request_numbers":["34157"],"title":"PAC cannot review Illinois Department of Revenue's commercial-purpose FOIA denial","filename":"34157, issued March 27, 2015.pdf","rel_path":null,"word_count":1153,"summary":"The requester sought PTAX-203 real estate transfer forms from the Illinois Department of Revenue, but the PAC determined it lacked jurisdiction to review the denial because the request was made for a commercial purpose.","plain_summary":"Mr. Vertin requested real estate records from the Illinois Department of Revenue for his business. Because the request was for a commercial purpose, the Attorney General's office stated it does not have the legal authority to review the Department's denial. The requester must instead pursue the matter through a lawsuit in court.","holding":"The PAC cannot review a Request for Review under FOIA when the underlying request was submitted for a commercial purpose.","legal_question":"Does the Public Access Counselor have the authority to review a FOIA denial when the requester has identified a commercial purpose for the request?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Illinois Department of Revenue","requesting_party":"Mr. Steve Vertin","pac_outcome":"Closed due to commercial purpose","pac_law_type":null,"subject_category":"commercial purpose","subject_description":"The requester sought PTAX-203 Illinois Real Estate Transfer Declaration forms for commercial industrial properties.","ocr_status":"ok","ocr_quality":98.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-10/34157%2C%20issued%20March%2027%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["commercial purpose","PTAX-203","jurisdiction","real estate records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 27, 2015\n\nVia electronic mail\n\nMr.|Steve Vertin\n\nVertin Valuation Services Corporation\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review - 2015 PAC 34157\n\nDear Mr. Vertin:\n\nThe Public Access Bureau received your Request for Review, pursuant to section\n9.5(a) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(a) (West 2012), as amended\nby Public Act 98-1129, effective December 3, 2014) concerning a FOIA request that you\nsubmitted to the Illinois Department of Revenue (Department). For the reasons explained below,\nthe! Request for Review process is not available in this instance because you requested records\nfora commercial purpose.\n\nBased on the information you provided to this office, on April 5, 2014, you\nsubmitted a FOIA request to the Department seeking all PTAX-203 Illinois Real Estate Transfer\nDeclaration forms for every county in Illinois. You indicated that your request had a commercial\npurpose.’ Your Request for Review stated that because you did not receive the records you were\nseeking, you submitted another request on or about February 18, 2015, seeking PTAX-203\ninformation for commercial industrial properties in certain counties. The Department responded\nbylasserting that those records are exempt from disclosure pursuant to section 7(1)(f) of FOIA\n(SILCS 140/7(1)(f) (West 2013 Supp.), as amended by Public Act 98-695, effective December\n3, 2014). Alternatively, the Department asserted that compliance with your request would be\nunduly burdensome pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2012), as amended\nby, Public Act 98-1129, effective December 3, 2014), and invited you to narrow your request,\nwhich it characterized as having a commercial purpose, to manageable proportions. Your\nRequest for Review contends that the records you requested are subject to disclosure by the\n\n1\n‘inois Department of Revenue Freedom of Information Act Request form signed by Stephan J.\n\nverti (April 5, 2014).\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 + TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + B12) 814-3000 + TTY: (312) 814-3374 © Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 + TTY: (618) §29-6403 * Fax: (618) 529-6416\n\n\nMr.|Steve Vertin\n\nMarch 27, 2015\nPage 2\n\nDepartment, and questions whether your FOIA request is properly classified as one with a\n\"commercial purpose.\"\n\nSection 9.5(a) of FOIA allows a person whose FOIA request is denied to seek\nreview of that denial with the Public Access Counselor. Section 9.5(b) of FOIA (5 ILCS\n140/9.5(b) (West 2012), as amended by Public Act 98-1129, effective December 3, 2014),\nhowever, creates an exception by providing that a \"person whose request to inspect or copy a\npublic record is made for a commercial purpose as defined in subsection (c-10) of Section 2 of\nthis Act may not file a request for review with the Public Access Counselor[ ]\" except for \"the\nlimited purpose of reviewing whether the public body properly determined that the request was\nmade for a commercial purpose.\"\n\nFOIA defines \"commercial purpose as:\n\nthe use of any part of a public record or records, or information\nderived from public records, in any form jor sale, resale, or\nsolicitation or advertisement for sales or services. For purposes of\nthis definition, requests made by news media and non-profit,\nscientific, or academic organizations shall not be considered to be\nmade for a \"commercial purpose” when the principal purpose of\nthe request is (i) to access and disseminate information concerning\nnews and current or passing events, (ii) for articles of opinion or\nfeatures of interest to the public, or (iii) for the purpose of\nacademic, scientific, or public research or education. (Emphasis\nadded.) 5 ILCS 140/2(c-10) (West 2012), as amended by Public\nAct 98-695, effective December 3, 2014.\n\nPTAX-203 forms contain detailed information concerning properties that are the\nsubject of real estate transactions for the purpose of collecting transfer taxes based on the sales\nprice, Your Request for Review states that you are a commercial appraiser and that your\ncompany uses \"data on [PTAX-203] forms to produce the most credible commercial industrial\nreal estate appraisals possible. * * * We are seeking this data to improve our product, promote\nemployment and for the good of our state to be used for perfectly legitimate and legal\npurposes.\" Specifically, you stated that you are seeking the information to \"develop a multiple\nlisting service (MLS) system\" of appraised properties, adding that there is a \"modest membership\ncosts for our Illinois MLS system.\"” Your company's website indicates that the membership cost\nfér access to the multiple listing service system for properties in the state of Indiana is $69.99 per\n\n2Letter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\n(March 14, 2015), at 2.\n\n3 Letter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\nMarch 14, 2015), at 2.\n\na\n\n\nMr. Steve Vertin\nMarch 27, 2015\nPage 3\n\nmonth, or $719.88 per year.’ However, you appear to assert that you fall under the exception to\nthe definition of commercial purpose because your company \"will be using the end results of\n\nthese data[ ] or the combined statistical analysis in our commercial industrial sales data\" to\ndisgeminate news on a blog on the internet about the commercial industrial real estate market.>\n\nBased on the information that you provided and a review of the information on\nyour website, it is clear that you are seeking information derived from data in the requested\nPTAX-203 forms to develop a system listing appraised properties for which access will be\nlimited to paying members. Because you intend to sell access to this information derived from\nthe|public records you are seeking from the Department, your request falls squarely within the\ndefinition of a request made for a \"commercial purpose” in section 2(c-10) of FOIA. To the\nextent that you may also use data to disseminate information to the public on the internet, that\ndoés not appear to be the \"principal purpose\" of your request, therefore your request would still\nbe made for a \"commercial purpose\".\n\nBecause your FOIA request has a commercial purpose, this office is unable to\nreview your allegation that the Department improperly denied your FOIA request. Please note\n\nthat you have the option of filing suit for injunctive or declaratory relief pursuant to section 11 of\nFOIA (5 ILCS 140/11 (West 2012)).\n\nIf you have any questions, please contact re at (312) 814-6756. This letter shall\nserve to close this matter.\n\ntruly yours\n\nSTEVE\n\nAssistant Bureau Chief\nPublic Access Bureau\n34157 £31 comm req sa\n\nce: Via electronic mail\n\nMs. Abbie Reynolds\n\nFreedom of Information Officer\nIllinois Department of Revenue\n101 West Jefferson Street\nSpringfield, Illinois 62702\nREV.FOIAG@illinois.gov\n\n4Vertin Valuation Services, http://vertinvaluation.com/mls_app (last visited March 25, 2015).\n\nSLetter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\n(March 14, 2015), at 2.\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"PTAX-203 real estate transfer declaration forms","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-34157/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 27, 2015\n\nVia electronic mail\n\nMr.|Steve Vertin\n\nVertin Valuation Services Corporation\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review - 2015 PAC 34157\n\nDear Mr. Vertin:\n\nThe Public Access Bureau received your Request for Review, pursuant to section\n9.5(a) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(a) (West 2012), as amended\nby Public Act 98-1129, effective December 3, 2014) concerning a FOIA request that you\nsubmitted to the Illinois Department of Revenue (Department). For the reasons explained below,\nthe! Request for Review process is not available in this instance because you requested records\nfora commercial purpose.\n\nBased on the information you provided to this office, on April 5, 2014, you\nsubmitted a FOIA request to the Department seeking all PTAX-203 Illinois Real Estate Transfer\nDeclaration forms for every county in Illinois. You indicated that your request had a commercial\npurpose.’ Your Request for Review stated that because you did not receive the records you were\nseeking, you submitted another request on or about February 18, 2015, seeking PTAX-203\ninformation for commercial industrial properties in certain counties. The Department responded\nbylasserting that those records are exempt from disclosure pursuant to section 7(1)(f) of FOIA\n(SILCS 140/7(1)(f) (West 2013 Supp.), as amended by Public Act 98-695, effective December\n3, 2014). Alternatively, the Department asserted that compliance with your request would be\nunduly burdensome pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2012), as amended\nby, Public Act 98-1129, effective December 3, 2014), and invited you to narrow your request,\nwhich it characterized as having a commercial purpose, to manageable proportions. Your\nRequest for Review contends that the records you requested are subject to disclosure by the\n\nDepartment, and questions whether your FOIA request is properly classified as one with a\n\"commercial purpose.\"\n\nSection 9.5(a) of FOIA allows a person whose FOIA request is denied to seek\nreview of that denial with the Public Access Counselor. Section 9.5(b) of FOIA (5 ILCS\n140/9.5(b) (West 2012), as amended by Public Act 98-1129, effective December 3, 2014),\nhowever, creates an exception by providing that a \"person whose request to inspect or copy a\npublic record is made for a commercial purpose as defined in subsection (c-10) of Section 2 of\nthis Act may not file a request for review with the Public Access Counselor[ ]\" except for \"the\nlimited purpose of reviewing whether the public body properly determined that the request was\nmade for a commercial purpose.\"\n\nFOIA defines \"commercial purpose as:\n\nthe use of any part of a public record or records, or information\nderived from public records, in any form jor sale, resale, or\nsolicitation or advertisement for sales or services. For purposes of\nthis definition, requests made by news media and non-profit,\nscientific, or academic organizations shall not be considered to be\nmade for a \"commercial purpose” when the principal purpose of\nthe request is (i) to access and disseminate information concerning\nnews and current or passing events, (ii) for articles of opinion or\nfeatures of interest to the public, or (iii) for the purpose of\nacademic, scientific, or public research or education. (Emphasis\nadded.) 5 ILCS 140/2(c-10) (West 2012), as amended by Public\nAct 98-695, effective December 3, 2014.\n\nPTAX-203 forms contain detailed information concerning properties that are the\nsubject of real estate transactions for the purpose of collecting transfer taxes based on the sales\nprice, Your Request for Review states that you are a commercial appraiser and that your\ncompany uses \"data on [PTAX-203] forms to produce the most credible commercial industrial\nreal estate appraisals possible. * * * We are seeking this data to improve our product, promote\nemployment and for the good of our state to be used for perfectly legitimate and legal\npurposes.\" Specifically, you stated that you are seeking the information to \"develop a multiple\nlisting service (MLS) system\" of appraised properties, adding that there is a \"modest membership\ncosts for our Illinois MLS system.\"” Your company's website indicates that the membership cost\nfér access to the multiple listing service system for properties in the state of Indiana is $69.99 per\n\n2 Letter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\n(March 14, 2015), at 2.\n\n3 Letter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\n\nmonth, or $719.88 per year.’ However, you appear to assert that you fall under the exception to\nthe definition of commercial purpose because your company \"will be using the end results of\n\nthese data[ ] or the combined statistical analysis in our commercial industrial sales data\" to\ndisgeminate news on a blog on the internet about the commercial industrial real estate market.>\n\nBased on the information that you provided and a review of the information on\nyour website, it is clear that you are seeking information derived from data in the requested\nPTAX-203 forms to develop a system listing appraised properties for which access will be\nlimited to paying members. Because you intend to sell access to this information derived from\nthe|public records you are seeking from the Department, your request falls squarely within the\ndefinition of a request made for a \"commercial purpose” in section 2(c-10) of FOIA. To the\nextent that you may also use data to disseminate information to the public on the internet, that\ndoés not appear to be the \"principal purpose\" of your request, therefore your request would still\nbe made for a \"commercial purpose\".\n\nBecause your FOIA request has a commercial purpose, this office is unable to\nreview your allegation that the Department improperly denied your FOIA request. Please note\n\nthat you have the option of filing suit for injunctive or declaratory relief pursuant to section 11 of\nFOIA (5 ILCS 140/11 (West 2012)).\n\nIf you have any questions, please contact re at (312) 814-6756. This letter shall\nserve to close this matter.\n\ntruly yours\n\nSTEVE\n\nAssistant Bureau Chief\nPublic Access Bureau\n34157 £31 comm req sa\n\nce: Via electronic mail\n\nMs. Abbie Reynolds\n\nFreedom of Information Officer\nIllinois Department of Revenue\n101 West Jefferson Street\nSpringfield, Illinois 62702\nREV.FOIAG@illinois.gov\n\n4 Vertin Valuation Services, http://vertinvaluation.com/mls_app (last visited March 25, 2015).\n\nSLetter from Steve Vertin to Sarah Pratt, Public Access Counselor, Office of the Attorney General\n(March 14, 2015), at 2."}
{"id":853,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-07-19","case_number":null,"request_numbers":["34218"],"title":"First Fire Protection District improperly withheld budget documents under 7(1)(f)","filename":"34218, issued July 19, 2018.pdf","rel_path":null,"word_count":2425,"summary":"The requester sought a budget document presented by the District Administrator during a board meeting, which the District denied as a preliminary draft. The PAC determined the District failed to prove the document was exempt and ordered its disclosure.","plain_summary":"A citizen requested a budget document that was presented during a public fire district meeting. The district refused to release it, claiming it was a 'preliminary draft' that might confuse the public. The Attorney General's office disagreed, ruling that the district did not provide enough evidence to justify keeping the document secret and ordered them to release it.","holding":"The First Fire Protection District of Antioch Township improperly withheld the requested budget documents under section 7(1)(f) of FOIA.","legal_question":"Whether budget documents presented to a public body during a meeting qualify as exempt 'preliminary drafts' under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"First Fire Protection District of Antioch Township","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"budget records","subject_description":"The request concerned a budget comparison document presented by the District Administrator to the Board of Trustees during a public meeting.","ocr_status":"ok","ocr_quality":95.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_e/34218%2C%20issued%20July%2019%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["budget","preliminary draft","fire district","public records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF'  ILLINOIS\n\nJuly 19,  2018\n\nLisa Madigan\n\nORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Lori Kikos\n\nFOIA Officer\n\nFirst Fire Protection District of Antioch Township\n835 Holbeck Drive\n\nAntioch,  Illinois 60002\n\nIkikos@antiochfire. org\n\nRE:  FOIA Request\n\nfor Review — 2015 PAC 34218\n\nDear\n\nand Ms.  Kikos: \n\nThis determination is issued pursuant to section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the First Fire Protection District of Antioch Township\nDistrict)  improperly denied\n\nMarch 11,  2015,  FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the District seeking a copy\n\nof the budget that the District Administrator,  Mr.  Ted Jozewiak,  provided to the District' s\ntrustees during the District' s February 12,  2015,  Board of Trustees ( Board)  meeting.  On March\n16,  2015,  the District denied the request under section 7( 1)(\n\nf) of FOIA ( 5 ILCS 140/ 7( 1)(\n\nf) \n\nWest 2013 Supp.),  as amended by Public Act 98- 695,  effective July 3,  2014),  stating: \" The\nrequested documents although they may have been discussed at the meeting were not approved; \nin fact no action was taken for or against them.  Providing copies of preliminary drafts of the\nrequested documents would only serve to confuse the public and imply that action had been\ntaken.\"'  On March 17,  2015, \n\nsubmitted this Request for Review disputing the\n\n16,  2015). \n\nLetter from Lori Kikos,  FOIA Officer,  First Fire District of Antioch,  to\n\nMarch\n\n500 South Second Street,  Springfield,  Illinois 62706 • (\n\n217)  782- 1090 •  TTY: (877)  844- 5461 •  Fax: (217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • (\n\n312)  814- 3000 •  VEY: (800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 877)  675- 9339 • \n\nFax: ( 618)  529- 6416 - e\n\n\fMs.  Lori Kikos\n\nJuly 19,  2018\nPage 2\n\nDistrict' s denial.  He stated that Administrator Jozewiak had referenced the budgetary records\n\nduring the meeting. \n\nfor Review to the\n\nOn March 30,  2015,  this office sent a copy of the Request\nreview, \nDistrict and requested unredacted copies of the responsive records for our confidential\ntogether with a detailed explanation for its assertion of section 7( 1)(\nf).  In particular,  this office\nasked the District to address whether the withheld records had been publicly cited and identified\nby the head of the District.  On April 3,  2015,  the District furnished those records and a written\nresponse, maintaining that its denial was proper.  On June 16,  2015,  this office sent a follow up\nletter to the District,  asking it to explain whether the person with the title of \"District\nAdministrator\"  is the \" head of the public body\"  under section 2( e)  of FOIA ( 5 ILCS 140/ 2( e) \nWest 2012),  as amended by Public Acts 98- 806,  effective January 1,  2015;  98- 1129,  effective\nDecember 3,  2014).  On June 23,  2015,  the District responded. \n\ndid not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" \nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016). \n\n5 ILCS 140/ 1. 2 ( West 2016).  A public body \" has the burden of\n\nSection 7( 1)(\n\nt)  of FOIA\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated,  except\nexempt when the record is publicly cited and identified by the head of the public body.\"  Section\n2( e)  of FOIA defines \" head of the public body\"  as \" the president,  mayor,  chairman,  presiding\nofficer, director, superintendent,  manager, supervisor or individual otherwise holding primary\nexecutive and administrative authority for the public body,  or such person' s duly authorized\ndesignee.\"  Section 7( 1)(\nf)  applies to \" inter-  and intra -agency predecisional and deliberative\nmaterial.\"  Harwood v. McDonough,  344 Ill. App.  3d 242,  247 ( 1st Dist.  2003).  The exemption\nis \" intended to protect\namong agency employees before a final decision is made.\"  Harwood,  344 I11.  App.  3d at 248. \n\nthe communications process and encourage frank and open discussion\n\nThe District stated that the withheld records pertained to a referendum that was on\n\nthe ballot for the April 7,  2015,  election,  and that \"[ aft the February 12,  2015,  meeting the\nDistrict Administrator,  Ted Jozefiak,  gave the District Trustees rough drafts of budgets he had\n\n\fMs.  Lori Kikos\n\nJuly 19,  2018\nPage 3\n\nprepared,  one as if the referendum passed and one as if referendum failed.\" 2 Administrator\nJozefiak merely handed out the budgets,  according to the District; \"There was no analysis or\ndiscussion of the contents by the Trustees nor at any time were the drafts publicly cited by the\nTrustees.\" 3 The District asserted that the budgets were properly withheld as preliminary drafts so\nthat they would not \" be mistakenly interpreted as the District's plans for the future[.]\"^ \n\nThis office has reviewed unredacted copies of the withheld budgets as well as the\n\nminutes of the February 12,  2015,  meeting during which the District Administrator passed the\nbudgets out to the trustees.  The pertinent portion of the minutes provides,  in full: \n\nTed handed out copies of the first drafted budget of 2015- \n2016 with numbers that reflect if the referendum passes or fails, \nplease look over.  Ted mentioned that chief sent out an e- mail\nlease is ending and the district will be out\nregarding the Denali\n962. 00 a month.  Ted also mentioned that a Lake County sheriff\n\nhad wondered if they can store one of their special\nresponse\nvehicles at station 3,  as they need to get it out of the old lake\ncounty fairgrounds location.  Trustees asked that Ted look into a\nmonthly fee to be charged and chief will need to know who needs\naccess to the building to give them a key fob if this is approved. \nTed also looked into a loan of $750, 000 at 3- 31/ 2%.  Trustee Van\nPatten stated she looked into a line of credit instead of a loan as she\nfeels this would work out better for the district of only borrowing\nwhat they would need,  and is checking on the rates.  A lengthy\ndiscussion ensued regarding the amount of crews the district would\nbe able to pay for if the referendum failed.  In summary the\ntrustees said they would pay for 3 employees and 1 metro\n\npersonne1J51\n\nThus,  it appears that Administrator Jozefiak led the trustees in a substantial discussion of the\nprojected budgetary impact of the impending referendum. \n\n2Letter from Daniel B.  Venturi,  Law Offices of Daniel B.  Venturi Ltd.,  to Josh Jones,  Assistant\n\nAttorney General,  Office of the Attorney General ( April 3,  2015),  at\n\n1. \n\nLetter from Daniel B.  Venturi,  Law Offices of Daniel B.  Venturi Ltd., to Josh Jones,  Assistant\n\nAttorney General,  Office of the Attorney General ( April 3,  2015),  at\n\n1. \n\nLetter from Daniel B.  Venturi,  Law Offices of Daniel B.  Venturi Ltd.,  to Josh Jones,  Assistant\n\nAttorney General,  Office of the Attorney General ( April 3,  2015),  at 2. \n\n5First Fire Protection District of Antioch Township,  Meeting,  February 12,  2015,  Minutes 3. \n\n\fMs.  Lori Kikos\n\nJuly 19,  2018\nPage 4\n\nIn response to this office' s inquiry about whether Administrator Jozefiak qualified\n\nas the head of the District,  the District' s counsel explained: \n\nThe administrator has no such authority. \n\nThe district administrator position is a part time position\nthat acts as a liaison between the Fire Chief,  who runs the day to\nday operations,  and the Board of Trustees of the District.  The\nadministrator does not have any authority to contract on behalf of\nthe District,  all such authority is exclusively vested in the Board of\nTrustees and has not been delegated. t61\n\nThe District' s counsel also provided this office with a copy of the job description for the District\nAdministrator position,  which,  conversely,  describes the District Administrator as \" the chief\nexecutive\"  of the District. \nIn light of that label and the rest of his job description,  it appears that\nAdministrator Jozefiak held primary executive and administrative authority for the District or, at\na minimum,  was the duly authorized designee of the Board of Trustees.  Accordingly,  the issue is\nwhether he \" publicly cited and identified\"  the budgetary documents within the meaning of\nsection 7( 1)( f). \n\nIn Dumke v.  City of Chicago,  2013 IL App ( 1st)  121668,  994 N. E. 2d 573 ( 2013), \n\nthe Illinois Appellate Court considered whether a public statement by the mayor of the City of\nf).  The plaintiff\nChicago \" publicly cited and identified\"  a record for purposes of section 7( 1)(\nalleged that then -Mayor Richard Daley waived the section 7( 1)(\nf) exemption with respect to a\nstudy prepared for the Chicago Police Department by an outside consulting firm when he\nreferred to the study during a press conference and in an ensuing press release.  Dumke,  2013 IL\nApp ( 1st)  121668,  716,  17,  994 N.E. 2d at 576.  At the outset,  the court noted that \"[ s] ection\n7( 1)(\nf) does not provide any guidance on how much or how little needs to be said or done to\nconstitute an effective waiver.  The parties have not advanced or presented any legislative history\nor citation to any legal authority,  nor has our research found any,  that assists us in determining\nwhat minimum conduct amounts to public citation and identification.\"  Dumke,  2013 IL App\n1st)  121668, ¶ 18,  994 N. E. 2d at 579.  In the absence of authority,  the court turned to the plain\nlanguage of section 7( 1)(\n\nf)  and found it to be unambiguous: \n\nLetter\n\nfrom Daniel B.  Venturi,  Law Offices of Daniel B.  Venturi Ltd.,  to Josh Jones,  Assistant\n\nAttorney General,  Office of the Attorney General ( June 23,  2015). \n\nJob Description,  District Administrator — Antioch First Fire Protection District ( undated). \n\n\fMs.  Lori Kikos\n\nJuly 19,  2018\nPage 5\n\nBoth \" cite\"  and \" identify\"  have a plain and ordinary meaning,  as\nwell as a common understanding. \" Cite\"  is defined as, \"[\nmention or bring forward as support,  illustration,  or proof.\" \nCitation.] \"\n\nIdentify\"  means to \" 1 a:  to cause to be or become\n\nt] o\n\nidentical b:  to conceive as united ( as in spirit,  outlook,  or principle) \ngroups that are identified with conservation> 2 a:  to establish the\nidentity of b:  to determine the taxonomic position of (a biological\nspecimen) \" establish the identity of: show or prove the sameness\nof.\" [ Citation.] ( Emphasis in original.)  Dumke,  2013 IL App ( 1st) \n121668, ¶ 20,  994 N. E. 2d at 580. \n\nEmploying those definitions,  the court determined: \n\nThe mayor cited and identified the report as a \" management\n\nfor his reorganization\n\nstudy requested by Superintendent Weis earlier this year\"  and its\npurpose as \" the study of police administration staffing.\"  He cited\nthe report and he identified it as support\nplan.  Specifically,  he stated that Superintendent Weis requested\nthe management study,  and as a result of the study,  130 more\npolice officers would be on the streets keeping the city safe. * * * \nThe mayor identified the individuals and businesses that conducted\nthe study and issued the resulting report.  He stated that \" the study\nof police administration staffing\"  began in 2010 and was\nconducted pro bono by the Civic Consulting Alliance with the\nassistance of Ryan Faye.  Mayor Daley also stated that A. T. \nKearney helped with various parts of the review.  Mayor Daley not\nonly identified the study and the key players,  but personally\nthanked them.  The mayor also indicated that the report \" offers\nmany findings and ways that the department will\nimprove its\nmanagement.\"  There is no question that the mayor cited and\nin public given that it occurred during a press\nidentified the report\nconference that was later available on the mayor' s YouTube page, \na summary of which was released in printed form.  Dumke,  2013\nIL App ( 1st)  121668, ¶ 24,  994 N.E. 2d at 582. \n\nThe court went on to conclude that because the mayor commended the authors of the\nmanagement study and directly referred to the management study to support the reorganization\nplan,  the section 7( 1)( f) exemption was waived.  Dumke,  2013 IL App ( 1st)  121668, ¶ 28,  994\nN. E. 2d at 583. \n\n\fMs.  Lori Kikos\n\nJuly 19,  2018\nPage 6\n\nIn this instance,  the evidence is less extensive than it was in Dumke;  this office\n\nf).  The minutes indicate that during\n\nlacks the benefit of a recording or transcript of the Board's February 12,  2015,  meeting. \nNonetheless,  it appears that Administrator Jozewiak publicly cited and identified the budget\ncomparisons he prepared within the meaning of section 7( 1)(\nopen session,  Administrator Jozewiak cited and identified the documents he passed out to the\ntrustees as showing a comparison of budgetary figures based on whether the referendum passed\nor failed.  The minutes further indicate that Administrator Jozewiak discussed the ramifications\nof his budgetary comparison with the trustees,  as they considered \" the amount of crews the\ndistrict would be able to pay for if the referendum failed.\" 8 Rather than momentarily\nacknowledging the existence of the budget comparison documents,  it appears that Administrator\nJozewiak publicly cited and identified them as showing the consequences in the event that the\nreferendum failed.  Under these circumstances,  the District did not sustain its burden of\ndemonstrating by clear and convincing evidence that the withheld budgets are exempt\ndisclosure pursuant\n\nf).  This office requests that the District provide copies of\n\nto section 7( 1)(\n\nfrom\n\nthose records to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  If you have questions,  you may contact me at\n312)  814- 8413 or jjones@atg. state. il.us.  This letter serves to close the matter. \n\nVery truly yours, \n\nOSHJONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n34218 f 71f improper fd\n\nCc: \n\nVia electronic mail\n\nMr. Daniel B.  Venturi\n\nLaw Offices of Daniel B.  Venturi Ltd. \n\n146 Cedar Avenue\n\nP. O.  Box 1107\n\nLake Villa, Illinois 60046\n\ndan@venturilaw. com\n\nFirst Fire Protection District of Antioch Township,  Meeting,  February 12,  2015,  Minutes 3. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A budget comparison document presented to a board","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-34218/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF' ILLINOIS\n\nJuly 19, 2018\n\nLisa Madigan\n\nORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Lori Kikos\n\nFOIA Officer\n\nFirst Fire Protection District of Antioch Township\n835 Holbeck Drive\n\nAntioch, Illinois 60002\n\nIkikos@antiochfire. org\n\nRE: FOIA Request\n\nfor Review — 2015 PAC 34218\n\nDear\n\nand Ms. Kikos: \n\nThis determination is issued pursuant to section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the First Fire Protection District of Antioch Township\nDistrict) improperly denied\n\nMarch 11, 2015, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the District seeking a copy\n\nof the budget that the District Administrator, Mr. Ted Jozewiak, provided to the District's\ntrustees during the District's February 12, 2015, Board of Trustees (Board) meeting. On March\n16, 2015, the District denied the request under section 7(1)(f) of FOIA (5 ILCS 140/ 7(1)(f) \n\nWest 2013 Supp.), as amended by Public Act 98- 695, effective July 3, 2014), stating: \" The\nrequested documents although they may have been discussed at the meeting were not approved; \nin fact no action was taken for or against them. Providing copies of preliminary drafts of the\nrequested documents would only serve to confuse the public and imply that action had been\ntaken.\"' On March 17, 2015, \n\nsubmitted this Request for Review disputing the\n\n16, 2015). \n\nLetter from Lori Kikos, FOIA Officer, First Fire District of Antioch, to\n\nMarch\n\nDistrict's denial. He stated that Administrator Jozewiak had referenced the budgetary records\n\nduring the meeting. \n\nfor Review to the\n\nOn March 30, 2015, this office sent a copy of the Request\nreview, \nDistrict and requested unredacted copies of the responsive records for our confidential\ntogether with a detailed explanation for its assertion of section 7(1)(f). In particular, this office\nasked the District to address whether the withheld records had been publicly cited and identified\nby the head of the District. On April 3, 2015, the District furnished those records and a written\nresponse, maintaining that its denial was proper. On June 16, 2015, this office sent a follow up\nletter to the District, asking it to explain whether the person with the title of \"District\nAdministrator\" is the \" head of the public body\" under section 2(e) of FOIA (5 ILCS 140/ 2(e) \nWest 2012), as amended by Public Acts 98- 806, effective January 1, 2015; 98- 1129, effective\nDecember 3, 2014). On June 23, 2015, the District responded. \n\ndid not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" \nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). \n\n5 ILCS 140/ 1. 2 (West 2016). A public body \" has the burden of\n\nSection 7(1)(t) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except\nexempt when the record is publicly cited and identified by the head of the public body.\" Section\n2(e) of FOIA defines \" head of the public body\" as \" the president, mayor, chairman, presiding\nofficer, director, superintendent, manager, supervisor or individual otherwise holding primary\nexecutive and administrative authority for the public body, or such person's duly authorized\ndesignee.\" Section 7(1)(f) applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption\nis \" intended to protect\namong agency employees before a final decision is made.\" Harwood, 344 I11. App. 3d at 248. \n\nthe communications process and encourage frank and open discussion\n\nThe District stated that the withheld records pertained to a referendum that was on\n\nthe ballot for the April 7, 2015, election, and that \"[ aft the February 12, 2015, meeting the\nDistrict Administrator, Ted Jozefiak, gave the District Trustees rough drafts of budgets he had\n\nprepared, one as if the referendum passed and one as if referendum failed.\" 2 Administrator\nJozefiak merely handed out the budgets, according to the District; \"There was no analysis or\ndiscussion of the contents by the Trustees nor at any time were the drafts publicly cited by the\nTrustees.\" 3 The District asserted that the budgets were properly withheld as preliminary drafts so\nthat they would not \" be mistakenly interpreted as the District's plans for the future[.]\"^ \n\nThis office has reviewed unredacted copies of the withheld budgets as well as the\n\nminutes of the February 12, 2015, meeting during which the District Administrator passed the\nbudgets out to the trustees. The pertinent portion of the minutes provides, in full: \n\nTed handed out copies of the first drafted budget of 2015- \n2016 with numbers that reflect if the referendum passes or fails, \nplease look over. Ted mentioned that chief sent out an e- mail\nlease is ending and the district will be out\nregarding the Denali\n962. 00 a month. Ted also mentioned that a Lake County sheriff\n\nhad wondered if they can store one of their special\nresponse\nvehicles at station 3, as they need to get it out of the old lake\ncounty fairgrounds location. Trustees asked that Ted look into a\nmonthly fee to be charged and chief will need to know who needs\naccess to the building to give them a key fob if this is approved. \nTed also looked into a loan of $750, 000 at 3- 31/ 2%. Trustee Van\nPatten stated she looked into a line of credit instead of a loan as she\nfeels this would work out better for the district of only borrowing\nwhat they would need, and is checking on the rates. A lengthy\ndiscussion ensued regarding the amount of crews the district would\nbe able to pay for if the referendum failed. In summary the\ntrustees said they would pay for 3 employees and 1 metro\n\npersonne1J51\n\nThus, it appears that Administrator Jozefiak led the trustees in a substantial discussion of the\nprojected budgetary impact of the impending referendum. \n\n2 Letter from Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General (April 3, 2015), at\n\n1. \n\nLetter from Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General (April 3, 2015), at\n\n1. \n\nLetter from Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General (April 3, 2015), at 2. \n\n5 First Fire Protection District of Antioch Township, Meeting, February 12, 2015, Minutes 3. \n\nIn response to this office's inquiry about whether Administrator Jozefiak qualified\n\nas the head of the District, the District's counsel explained: \n\nThe administrator has no such authority. \n\nThe district administrator position is a part time position\nthat acts as a liaison between the Fire Chief, who runs the day to\nday operations, and the Board of Trustees of the District. The\nadministrator does not have any authority to contract on behalf of\nthe District, all such authority is exclusively vested in the Board of\nTrustees and has not been delegated. t61\n\nThe District's counsel also provided this office with a copy of the job description for the District\nAdministrator position, which, conversely, describes the District Administrator as \" the chief\nexecutive\" of the District. \nIn light of that label and the rest of his job description, it appears that\nAdministrator Jozefiak held primary executive and administrative authority for the District or, at\na minimum, was the duly authorized designee of the Board of Trustees. Accordingly, the issue is\nwhether he \" publicly cited and identified\" the budgetary documents within the meaning of\nsection 7(1)(f). \n\nIn Dumke v. City of Chicago, 2013 IL App (1st) 121668, 994 N. E. 2d 573 (2013), \n\nthe Illinois Appellate Court considered whether a public statement by the mayor of the City of\nf). The plaintiff\nChicago \" publicly cited and identified\" a record for purposes of section 7(1)(alleged that then -Mayor Richard Daley waived the section 7(1)(f) exemption with respect to a\nstudy prepared for the Chicago Police Department by an outside consulting firm when he\nreferred to the study during a press conference and in an ensuing press release. Dumke, 2013 IL\nApp (1st) 121668, 716, 17, 994 N.E. 2d at 576. At the outset, the court noted that \"[ s] ection\n7(1)(f) does not provide any guidance on how much or how little needs to be said or done to\nconstitute an effective waiver. The parties have not advanced or presented any legislative history\nor citation to any legal authority, nor has our research found any, that assists us in determining\nwhat minimum conduct amounts to public citation and identification.\" Dumke, 2013 IL App\n1st) 121668, ¶ 18, 994 N. E. 2d at 579. In the absence of authority, the court turned to the plain\nlanguage of section 7(1)(f) and found it to be unambiguous: \n\nLetter\n\nfrom Daniel B. Venturi, Law Offices of Daniel B. Venturi Ltd., to Josh Jones, Assistant\n\nAttorney General, Office of the Attorney General (June 23, 2015). \n\nJob Description, District Administrator — Antioch First Fire Protection District (undated). \n\nBoth \" cite\" and \" identify\" have a plain and ordinary meaning, as\nwell as a common understanding. \" Cite\" is defined as, \"[\nmention or bring forward as support, illustration, or proof.\" \nCitation.] \"\n\nIdentify\" means to \" 1 a: to cause to be or become\n\nt] o\n\nidentical b: to conceive as united (as in spirit, outlook, or principle) \ngroups that are identified with conservation> 2 a: to establish the\nidentity of b: to determine the taxonomic position of (a biological\nspecimen) \" establish the identity of: show or prove the sameness\nof.\" [ Citation.] (Emphasis in original.) Dumke, 2013 IL App (1st) \n121668, ¶ 20, 994 N. E. 2d at 580. \n\nEmploying those definitions, the court determined: \n\nThe mayor cited and identified the report as a \" management\n\nfor his reorganization\n\nstudy requested by Superintendent Weis earlier this year\" and its\npurpose as \" the study of police administration staffing.\" He cited\nthe report and he identified it as support\nplan. Specifically, he stated that Superintendent Weis requested\nthe management study, and as a result of the study, 130 more\npolice officers would be on the streets keeping the city safe. * * * \nThe mayor identified the individuals and businesses that conducted\nthe study and issued the resulting report. He stated that \" the study\nof police administration staffing\" began in 2010 and was\nconducted pro bono by the Civic Consulting Alliance with the\nassistance of Ryan Faye. Mayor Daley also stated that A. T. \nKearney helped with various parts of the review. Mayor Daley not\nonly identified the study and the key players, but personally\nthanked them. The mayor also indicated that the report \" offers\nmany findings and ways that the department will\nimprove its\nmanagement.\" There is no question that the mayor cited and\nin public given that it occurred during a press\nidentified the report\nconference that was later available on the mayor's YouTube page, \na summary of which was released in printed form. Dumke, 2013\nIL App (1st) 121668, ¶ 24, 994 N.E. 2d at 582. \n\nThe court went on to conclude that because the mayor commended the authors of the\nmanagement study and directly referred to the management study to support the reorganization\n\nIn this instance, the evidence is less extensive than it was in Dumke; this office\n\nf). The minutes indicate that during\n\nlacks the benefit of a recording or transcript of the Board's February 12, 2015, meeting. \nNonetheless, it appears that Administrator Jozewiak publicly cited and identified the budget\ncomparisons he prepared within the meaning of section 7(1)(open session, Administrator Jozewiak cited and identified the documents he passed out to the\ntrustees as showing a comparison of budgetary figures based on whether the referendum passed\nor failed. The minutes further indicate that Administrator Jozewiak discussed the ramifications\nof his budgetary comparison with the trustees, as they considered \" the amount of crews the\ndistrict would be able to pay for if the referendum failed.\" 8 Rather than momentarily\nacknowledging the existence of the budget comparison documents, it appears that Administrator\nJozewiak publicly cited and identified them as showing the consequences in the event that the\nreferendum failed. Under these circumstances, the District did not sustain its burden of\ndemonstrating by clear and convincing evidence that the withheld budgets are exempt\ndisclosure pursuant\n\nf). This office requests that the District provide copies of\n\nto section 7(1)(from\n\nthose records to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n312) 814- 8413 or jjones@atg. state. il.us. This letter serves to close the matter. \n\nVery truly yours, \n\nOSHJONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n34218 f 71f improper fd\n\nCc: \n\nVia electronic mail\n\nMr. Daniel B. Venturi\n\nLaw Offices of Daniel B. Venturi Ltd. \n\n146 Cedar Avenue\n\nP. O. Box 1107\n\nLake Villa, Illinois 60046\n\ndan@venturilaw. com\n\nFirst Fire Protection District of Antioch Township, Meeting, February 12, 2015, Minutes 3."}
{"id":854,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-01-13","case_number":null,"request_numbers":["34503"],"title":"Illinois Department of Corrections must disclose contractor-held prescription drug records","filename":"34503, Issued January 13, 2016.pdf","rel_path":null,"word_count":1516,"summary":"The Chicago Tribune requested records of prescription drug orders placed by the Illinois Department of Corrections through private vendors, which the Department initially failed to provide. The PAC determined that the Department must obtain and disclose these records from its contracted healthcare provider, subject to redactions for inmate privacy.","plain_summary":"A reporter requested records of prescription drug orders made by the Illinois Department of Corrections through private vendors. The Attorney General's office ruled that the Department must get these records from its vendor and provide them to the reporter. The Department is allowed to remove personal information that would identify specific inmates to protect their medical privacy.","holding":"The Illinois Department of Corrections is obligated under FOIA to disclose records concerning prescription drug orders held by its contracted healthcare provider.","legal_question":"Whether records of prescription drug orders held by a private contractor on behalf of a public body are subject to disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Illinois Department of Corrections","requesting_party":"Ms. Angela Caputo, Chicago Tribune","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"contractor records","subject_description":"Records detailing prescription drug orders placed by the Illinois Department of Corrections through private healthcare vendors.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.5/34503%2C%20Issued%20January%2013%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["contractor records","medical privacy","prescription drugs","inmate records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nJanuary 13, 2016\n\nVia electronic mail\n\nMs. Angela Caputo, Reporter\nChicago Tribune\n\n[street address redacted for site publication -- see original PDF]\nacaputo@tribune.com\n\nVia electronic mail\n\nMr. Joel Diers\n\nLegal Counsel\n\nIllinois Department of Corrections\n1301 Concordia Court\n\nP.O. Box 19277\n\nSpringfield, [linois 62794-9277\nJoel.diers@doc.illinois.gov\n\nRE: FOIA Request for Review - 2015 PAC 34503; IDOC — 150317195\nDear Ms. Caputo and Mr. Diers:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Corrections (IDOC) is obligated\nunder FOIA to disclose certain records concerning prescription drug orders for inmates that are\nin the possession or custody of its contracted healthcare provider.\n\nOn March 17, 2015, Ms. Angelo Caputo, on behalf of the Chicago Tribune,\nsubmitted a FOIA request to IDOC seeking \"complete copies of all vendor invoices, purchase\norders, receipts or other relevant records that detail prescription drug orders placed on behalf of\nthe Illinois Department of Corrections -- through Wexford Health Sources, Inc. [Wexford] or any\nother private vendor -- between fiscal year 2010 and the present.\"' The request further stated:\n\n‘Freedom of Information Act request from Angela Caputo, Reporter, Chicago Tribune, to Illinois\nDepartment of Corrections (March 17, 2015).\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 « Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 * Fax: (618) 529-6416\n\nMs. Angela Caputo\nMr. Joel Diers\nJanuary 13, 2016\nPage 2\n\n\"To be clear, I do not wish to obtain any information about the medical treatment that may have\nbeen prescribed to individuals in the custody of IDOC. | am strictly seeking the details of\nrelevant vendor and payment records.\"” On April 1, 2015, IDOC responded that \"it does not\nmaintain or possess records responsive to your request. Wexford Health Sources [Wexford]\nmaintains these records{.]\"? In her Request for Review, Ms. Caputo asserted that IDOC must\npossess some responsive records because it did not contract with Wexford to provide medical\nservices until 2011. She also contended that responsive records in the possession of Wexford are\nIDOC's public records pursuant to section 7(2) of FOIA (5 ILCS 140/7(2) (West 2014)).\n\nOn April 9, 2015, this office sent a copy of the Request for Review to IDOC and\nasked it to provide a detailed explanation of the specific measures that IDOC took to locate\nresponsive records, including a description of the recordkeeping systems that were searched and\nthe officials who were consulted. We also asked IDOC to provide a copy of its contract with\nWexford, and to respond to the assertion that records in the physical custody of Wexford\nconcerning prescription drug orders placed on behalf of IDOC should be considered IDOC's\npublic records pursuant to section 7(2) of FOIA. IDOC submitted a written response on April\n22, 2015, which stated that prescription drug orders for inmates are maintained in each inmate's\nmedical file and therefore constitute medical records that are exempt from disclosure under\nsection 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2014)), and are prohibited from being\ndisclosed by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA)\nPub. L. No. 104-191, 110 Stat. 1936 (1996). Ms. Caputo replied on May 13, 2015, clarifying\nthat she is seeking procurement records that account for IDOC's pharmaceutical purchases. She\nfurther clarified, during a telephone conversation with an Assistant Attorney General in the\nPublic Access Bureau, that she is seeking corporate-level records documenting pharmaceutical\npurchases, and not records from inmates’ medical files.\n\nThis office then requested additional information concerning IDOC’s efforts to\nlocate responsive records. On June 11, 2015, IDOC issued a supplemental response and\nprovided a portion of Wexford's contract with IDOC as well as a subcontract for a\npharmaceutical company that fills prescription drug orders. IDOC provided additional portions\nof its contract with Wexford on August 24, 2015.\n\nFreedom of Information Act request from Angela Caputo, Reporter, Chicago Tribune, to Illinois\nDepartment of Corrections (March 17, 2015).\n\n5Letter from Anne Rayhill, Illinois Department of Corrections, to Angela Caputo, Chicago\nTribune (April 1, 2015).\n\nMs. Angela Caputo\nMr. Joel Diers\nJanuary 13, 2016\nPage 3\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014). :\n\nIDOC stated in its supplemental response to this office that \"prescription drug\norders are placed through Wexford[ ]\" and the \"amounts of medications ordered and the\nassociated costs are not maintained by the facilities.\"* The supplemental response also indicated\nthat \"IDOC has contracted [with] Wexford since at least 2007.\"° Wexford's contract shows that\nIDOC and the Illinois Department of Healthcare and Family Services contracted with Wexford\nto provide \"medical, dental, vision, pharmaceutical and mental health services for offenders at\nspecified State correctional centers.\"© Under the contract, Wexford agreed to arrange for\npharmacy services and to provide all medications other than those used to treat Hepatitis C and\nHIV/AIDS.’\n\nIn Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976), the United\nStates Supreme Court held that the government has an “obligation to provide medical care for\nthose whom it is punishing by incarceration.\" Section 7(2) of FOIA provides:\n\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\n\n‘Letter from Anne Rayhill, Freedom of Information Office, Hlinois Department of Corrections, to\nSteve Silverman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June\n11, 2015).\n\nSLetter from Anne Rayhill, Freedom of Information Office, Illinois Department of Corrections, to\nSteve Silverman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June\n11, 2015).\n\n°Contract for the purpose of providing health care to prison inmates, Wexford Health Sources,\nInc., Illinois Department of Healthcare and Family Services, and Hlinois Department of Corrections, §2, May 9,\n2011.\n\nContract for the purpose of providing health care to prison inmates, Wexford Health Sources,\nInc., Illinois Department of Healthcare and Family Services, and Illinois Department of Corrections, Schedule Es,\nExhibit I, May 9, 2011.\n\nMs. Angela Caputo\nMr. Joel Diers\nJanuary 13, 2016\nPage 4\n\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\nAny records in the possession of Wexford documenting prescription drug orders for inmates\ndirectly relate to the governmental function of providing medical care to inmates, a function that\nWexford has agreed to perform on behalf of IDOC. Therefore, even if IDOC does not have\nphysical custody of responsive records, records concerning prescription drug orders for inmates\nin the possession of Wexford are considered IDOC's records under the plain language of section\n7(2) of FOIA, unless they are exempt from disclosure. IDOC has not asserted that records\nmaintained by Wexford — rather than in inmates' medical files - documenting prescription drug\norders for inmates are exempt from disclosure under FOIA. Accordingly, we conclude that the\nrequested records are considered IDOC’s records under section 7(2) of FOIA, and must be\ndisclosed because they relate to the use of public funds for inmates' medical care. See 5 ILCS\n140/2.5 (West 2014)) (\"All records relating to the obligation, receipt, and use of public funds of\nthe State, units of local government, and school districts are public records subject to inspection\nand copying by the public.\").\n\nIn accordance with the conclusions expressed above, this office requests that\nIDOC obtain responsive records from Wexford and furnish them to Ms. Caputo. In addition,\nIDOC should search for and provide records documenting purchases of prescription drugs for\nHepatitis C and AIDS that are not covered by IDOC’s contract with Wexford. If any responsive\nrecords identify individual inmates who were prescribed prescription drugs, their names and\nother identifying information may be properly redacted pursuant to section 7(1)(c) of FOIA (5\nILCS 140/7(1)(c) (West 2014), as amended by Public Act 99-298, effective August 6, 2015),\nwhich exempts from disclosure information that would constitute an unwarranted invasion of\npersonal privacy. Ill. Ail'y Gen. PAC Reg. Rev, Ltr. 13717, issued June 20, 2011, at 2\n(disclosure of information identifying a specific individual's medical diagnosis and treatment\nwould constitute an unwarranted invasion of personal privacy).\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n(312) 814-6756. This letter serves to close this file.\n\nni\n\n‘STEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n34503 f 3d incomplete sa\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Prescription drug order records held by a contractor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-34503/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nJanuary 13, 2016\n\nVia electronic mail\n\nMs. Angela Caputo, Reporter\nChicago Tribune\n\n[street address redacted for site publication -- see original PDF]\nacaputo@tribune.com\n\nVia electronic mail\n\nMr. Joel Diers\n\nLegal Counsel\n\nIllinois Department of Corrections\n1301 Concordia Court\n\nP.O. Box 19277\n\nSpringfield, [linois 62794-9277\nJoel.diers@doc.illinois.gov\n\nRE: FOIA Request for Review - 2015 PAC 34503; IDOC — 150317195\nDear Ms. Caputo and Mr. Diers:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Corrections (IDOC) is obligated\nunder FOIA to disclose certain records concerning prescription drug orders for inmates that are\nin the possession or custody of its contracted healthcare provider.\n\nOn March 17, 2015, Ms. Angelo Caputo, on behalf of the Chicago Tribune,\nsubmitted a FOIA request to IDOC seeking \"complete copies of all vendor invoices, purchase\norders, receipts or other relevant records that detail prescription drug orders placed on behalf of\nthe Illinois Department of Corrections -- through Wexford Health Sources, Inc. [Wexford] or any\nother private vendor -- between fiscal year 2010 and the present.\"' The request further stated:\n\n‘Freedom of Information Act request from Angela Caputo, Reporter, Chicago Tribune, to Illinois\n\n\"To be clear, I do not wish to obtain any information about the medical treatment that may have\nbeen prescribed to individuals in the custody of IDOC. | am strictly seeking the details of\nrelevant vendor and payment records.\"” On April 1, 2015, IDOC responded that \"it does not\nmaintain or possess records responsive to your request. Wexford Health Sources [Wexford]\nmaintains these records{.]\"? In her Request for Review, Ms. Caputo asserted that IDOC must\npossess some responsive records because it did not contract with Wexford to provide medical\nservices until 2011. She also contended that responsive records in the possession of Wexford are\nIDOC's public records pursuant to section 7(2) of FOIA (5 ILCS 140/7(2) (West 2014)).\n\nOn April 9, 2015, this office sent a copy of the Request for Review to IDOC and\nasked it to provide a detailed explanation of the specific measures that IDOC took to locate\nresponsive records, including a description of the recordkeeping systems that were searched and\nthe officials who were consulted. We also asked IDOC to provide a copy of its contract with\nWexford, and to respond to the assertion that records in the physical custody of Wexford\nconcerning prescription drug orders placed on behalf of IDOC should be considered IDOC's\npublic records pursuant to section 7(2) of FOIA. IDOC submitted a written response on April\n22, 2015, which stated that prescription drug orders for inmates are maintained in each inmate's\nmedical file and therefore constitute medical records that are exempt from disclosure under\nsection 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2014)), and are prohibited from being\ndisclosed by the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA)\nPub. L. No. 104-191, 110 Stat. 1936 (1996). Ms. Caputo replied on May 13, 2015, clarifying\nthat she is seeking procurement records that account for IDOC's pharmaceutical purchases. She\nfurther clarified, during a telephone conversation with an Assistant Attorney General in the\nPublic Access Bureau, that she is seeking corporate-level records documenting pharmaceutical\npurchases, and not records from inmates’ medical files.\n\nThis office then requested additional information concerning IDOC’s efforts to\nlocate responsive records. On June 11, 2015, IDOC issued a supplemental response and\nprovided a portion of Wexford's contract with IDOC as well as a subcontract for a\npharmaceutical company that fills prescription drug orders. IDOC provided additional portions\nof its contract with Wexford on August 24, 2015.\n\nFreedom of Information Act request from Angela Caputo, Reporter, Chicago Tribune, to Illinois\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014).:\n\nIDOC stated in its supplemental response to this office that \"prescription drug\norders are placed through Wexford[ ]\" and the \"amounts of medications ordered and the\nassociated costs are not maintained by the facilities.\"* The supplemental response also indicated\nthat \"IDOC has contracted [with] Wexford since at least 2007.\"° Wexford's contract shows that\nIDOC and the Illinois Department of Healthcare and Family Services contracted with Wexford\nto provide \"medical, dental, vision, pharmaceutical and mental health services for offenders at\nspecified State correctional centers.\"© Under the contract, Wexford agreed to arrange for\npharmacy services and to provide all medications other than those used to treat Hepatitis C and\nHIV/AIDS.’\n\nIn Estelle v. Gamble, 429 U.S. 97, 102, 97 S. Ct. 285, 290 (1976), the United\nStates Supreme Court held that the government has an “obligation to provide medical care for\nthose whom it is punishing by incarceration.\" Section 7(2) of FOIA provides:\n\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\n\n‘Letter from Anne Rayhill, Freedom of Information Office, Hlinois Department of Corrections, to\nSteve Silverman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June\n11, 2015).\n\nSLetter from Anne Rayhill, Freedom of Information Office, Illinois Department of Corrections, to\nSteve Silverman, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney General (June\n11, 2015).\n\n°Contract for the purpose of providing health care to prison inmates, Wexford Health Sources,\nInc., Illinois Department of Healthcare and Family Services, and Hlinois Department of Corrections, §2, May 9,\n2011.\n\nContract for the purpose of providing health care to prison inmates, Wexford Health Sources,\nInc., Illinois Department of Healthcare and Family Services, and Illinois Department of Corrections, Schedule Es,\n\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\nAny records in the possession of Wexford documenting prescription drug orders for inmates\ndirectly relate to the governmental function of providing medical care to inmates, a function that\nWexford has agreed to perform on behalf of IDOC. Therefore, even if IDOC does not have\nphysical custody of responsive records, records concerning prescription drug orders for inmates\nin the possession of Wexford are considered IDOC's records under the plain language of section\n7(2) of FOIA, unless they are exempt from disclosure. IDOC has not asserted that records\nmaintained by Wexford — rather than in inmates' medical files - documenting prescription drug\norders for inmates are exempt from disclosure under FOIA. Accordingly, we conclude that the\nrequested records are considered IDOC’s records under section 7(2) of FOIA, and must be\ndisclosed because they relate to the use of public funds for inmates' medical care. See 5 ILCS\n140/2.5 (West 2014)) (\"All records relating to the obligation, receipt, and use of public funds of\nthe State, units of local government, and school districts are public records subject to inspection\nand copying by the public.\").\n\nIn accordance with the conclusions expressed above, this office requests that\nIDOC obtain responsive records from Wexford and furnish them to Ms. Caputo. In addition,\nIDOC should search for and provide records documenting purchases of prescription drugs for\nHepatitis C and AIDS that are not covered by IDOC’s contract with Wexford. If any responsive\nrecords identify individual inmates who were prescribed prescription drugs, their names and\nother identifying information may be properly redacted pursuant to section 7(1)(c) of FOIA (5\nILCS 140/7(1)(c) (West 2014), as amended by Public Act 99-298, effective August 6, 2015),\nwhich exempts from disclosure information that would constitute an unwarranted invasion of\npersonal privacy. Ill. Ail'y Gen. PAC Reg. Rev, Ltr. 13717, issued June 20, 2011, at 2\n(disclosure of information identifying a specific individual's medical diagnosis and treatment\nwould constitute an unwarranted invasion of personal privacy).\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n(312) 814-6756. This letter serves to close this file.\n\nni\n\n‘STEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n34503 f 3d incomplete sa"}
{"id":855,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-04-04","case_number":null,"request_numbers":["34653"],"title":"Cook County Sheriff's Office did not violate FOIA by classifying SpotCrime.com as commercial requester","filename":"34653, issued April 4, 2017.pdf","rel_path":null,"word_count":2222,"summary":"The Cook County Sheriff's Office designated SpotCrime.com as a commercial and recurrent requester, and the PAC determined this designation was proper because SpotCrime does not meet the FOIA definition of 'news media.'","plain_summary":"SpotCrime.com requested daily crime data from the Cook County Sheriff's Office, which the Sheriff's Office denied by classifying the requester as 'commercial and recurrent.' The Attorney General's office agreed with the Sheriff, finding that SpotCrime does not qualify as 'news media' under the law. This means the Sheriff's Office is allowed to follow the specific, more restrictive procedures for handling requests from commercial entities.","holding":"The Cook County Sheriff's Office did not improperly designate SpotCrime.com as a commercial and recurrent requester.","legal_question":"Whether SpotCrime.com qualifies as 'news media' under FOIA, thereby exempting it from being classified as a 'commercial and recurrent requester' under 5 ILCS 140/3.1 and 3.2.","disposition":"no_violation","primary_statute":["5 ILCS 140/3.1","5 ILCS 140/3.2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Sheriff's Office","requesting_party":"SpotCrime.com","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"commercial and recurrent requester","subject_description":"The classification of a data-aggregation website as a commercial and recurrent requester for the purpose of processing FOIA requests for daily crime data.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_f/34653%2C%20issued%20April%204%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["commercial requester","recurrent requester","news media","FOIA procedures","crime data"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 4,  2017\n\nVia electronic mail\n\nMr. Brendan J.  Healey\nMandell Menkes LLC\n\nOne North Franklin Street,  Suite 3600\n\n[street address redacted for site publication -- see original PDF]\nbhealey@mandellmenkes.\n\ncom\n\nVia electronic mail\n\nMs.  Elizabeth Scannell\n\nAssistant General Counsel\nOffice of the Cook County Sheriff\nLegal Affairs Division\n\n50 West Washington,  Room 704\n\nChicago,  Illinois 60602\n\nElizabeth. Scannell@cookcountyil. gov\n\nRE:  FOIA Request for Review — 2015 PAC 34653\n\nDear Mr. Healey and Ms.  Scannell: \n\nInformation Act ( FOIA) ( 5 ILCS 14019. 5( f) (West 2014)).  For the reasons that follow,  the\n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nPublic Access Bureau concludes that the Cook County Sheriffs Office ( Sheriffs Office)  did not\nimproperly designate SpotCrime. com ( SpotCrime)  as a commercial and recurrent\n\nrequester. \n\nAccording to correspondence provided by the parties, \n\non\n\nbehalf of SpotCrime,  began submitting FOIA requests to the Sheriff' s Office for crime data\nbeginning in September,  2014.  On March 5,  2015,  SpotCrime requested that the Sheriffs Office\nfurnish data on a daily basis.  On March 13,  2015,  the Sheriff' s Office responded that it could\nprovide the requested data on a monthly basis,  but not on a daily basis.  SpotCrime continued to\nsubmit FOIA requests on a daily basis for certain crime data,  namely the block number of the\nlocation where the crime occurred,  the date of the incident, and the type of crime.  On April 7, \n\n2015,  the Sheriffs Office notified SpotCrime that its FOIA requests would be treated as having a\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Brendan J.  Healey\nMs.  Elizabeth Scannell\n\nApril 4,  2017\n\nPage 2\n\ncommercial purpose\"  and being from a \" recurrent requester\"  pursuant to sections 3. 1 ( 5 ILCS\n140/ 3. 1 ( West 2014))  and 3. 2 of FOIA ( 5 ILCS 140/ 3. 2 ( West 2014)),  respectively.  On April 8, \n2015,  SpotCrime reiterated its request\nthat crime data be provided on a daily basis,  and asserted, \nSpotCrime publicly reports on the data and as such we are a member of the press.\" I\n\nSheriffs Office and requested that it provide factual information and legal arguments in support\n\nOn April 27,  2015,  this office sent a copy of the Request\n\nfor Review to the\n\nof its designation of SpotCrime as a commercial and recurrent requester.  This office also\n\nrequested that the Sheriffs Office respond to SpotCrime' s assertion that it should be considered\n\nnews media\"  for the purposes of FOIA,  as defined by section 2( 0 of FOIA ( 5 ILCS 140/ 2( 0\nWest 2014)). \n\nOn May 6,  2015,  the Sheriffs Office submitted a written response to this office. \n\nIt described the course of requests from SpotCrime,  and noted that when SpotCrime initially\nsubmitted a FOIA request in September, 2014,  it had indicated that the request was made for a\n\ncommercial purpose, and did not object to that designation.  The Sheriff's Office further\n\naddressed whether SpotCrime is \" news media\": \" Spotcrime is a privately owned corporation that\nmakes commercial use of incident - level crime reports.  Spotcrime makes crimemapping data\navailable to its ' users'  and contracted subscribers for a fee.  Even where those contracted\n\nsubscribers are members of the media,  Spotcrime maintains a commercial\nthe crime data.\" 2\n\ninterest\n\nin providing\n\nSpotCrime, and on June 2,  2015,  SpotCrime replied.  It described its services in further detail: \n\nOn May 7,  2015,  this office forwarded a copy of the Sheriff' s Office' s response to\n\nSpotCrime owns and operates a website that provides\n\nhighly localized crime news using data drawn from a variety of\n\nsources. * * * \n\nSuch crime data has long been a staple of print news\ncoverage in the form of police blotter sections.  SpotCrime delivers\n\nthe data to consumers online and via email alerts.  SpotCrime has\n\nmore than one million subscribers to its email alerts,  and it sends\n\nmore than 10 million crime alert emails per month,  making it the\nlargest crime alerting system in the United States.  SpotCrime also\n\n1E -mail from\n\nto Elizabeth Scannell ( April 8,  2015). \n\nBenjamin Reed,  Assistant Attorney General,  Public Access Bureau ( May 6,  2015),  at 4. \n\n2Letter from Elizabeth Scannell,  Assistant General Counsel,  Office of the Cook County Sheriff to\n\n\fMr.  Brendan J.  Healey\nMs.  Elizabeth Scannell\n\nApril 4,  2017\n\nPage 3\n\nprovides crime data to media organizations and has partnered with\nGannett and Sinclair. l31\n\nSpotCrime argued that it is a \" news service\"  as that term is used within FOIA' s definition of\n\nnews media\": \n\nSpotCrime qualifies as a \" news service\"  both because it provides\n\nfree crime information to visitors to its websites and also because it\n\nsyndicates and sells crime data to its corporate media clients.  Just\n\nas other news services package and sell data and information to\n\nmedia clients,  so too does SpotCrime. \n\nIn addition,  SpotCrime\n\ndistributes crime news to individual\n\nrecipients at regular intervals\n\nvia electronic push notifications such as email,  RSS,  and social\n\nmedia.  Finally,  SpotCrime disseminates information to a\nsignificant cross section of the public.  SpotCrime' s website has\nmore than one million unique visits per month. l41\n\nOn August 25,  2016,  SpotCrime furnished this office with an example of a crime\n\nalert sent to a subscriber.  On January 30,  2017,  SpotCrime provided an additional explanation of\nits services to subscribers: \n\nEach one of these [ crime]  alerts is unique to the subscriber\n\nby location and radius.  SpotCrime readers select a location and a\nradius for the personalized crime news they receive.  SpotCrime\nthen provides a specific map and list of crimes for each subscriber. \n\nSpotCrime does not merely send its readers an un -edited\nstream of data.  SpotCrime classifies each crime.  Assault with a\n\ndeadly weapon,  for example,  will typically be classified as a\nshooting in the SpotCrime system.  Historically,  almost all police\ndepartments don't have a specific classification for shooting. \nSpotCrime also weeds non -crime events out of its news update[.] \n\n3Letter from Brendan J.  Healey,  Mandell Menkes LLC,  to Sarah Pratt,  Public Access Counselor, \n\nOffice of the Attorney General ( June 2,  2015),  at\n\n1. \n\nOffice of the Attorney General ( June 2,  2015),  at 2. \n\n4Letter from Brendan J.  Healey,  Mandell Menkes LLC, to Sarah Pratt,  Public Access Counselor, \n\n\fMr. Brendan J.  Healey\nMs.  Elizabeth Scannell\n\nApril 4,  2017\n\nPage 4\n\nEach SpotCrime subscriber gets localized crime reports\n\nwhenever a crime is proximate to the reader' s address and within\nthe radius the reader has selected. 151\n\nDETERMINATION\n\nSection 2( c- 10)  of FOIA ( 5 ILCS 140/ 2( c- 10) ( West 2014))  defines \" commercial\n\npurpose\"  as: \n\nthe use of any part of a public record or records,  or information\nderived from public records,  in any form for sale,  resale,  or\nsolicitation or advertisement\nthis definition,  requests made by news media and non- profit, \nscientific,  or academic organizations\n\nfor sales or services.  For purposes of\n\nshall not be considered to\n\nbe made for a \" commercial purpose\"  when the principal purpose\n\nof the request\n\nis ( i)  to access and disseminate information\n\nconcerning news and current or passing events, ( ii) for articles of\nto the public,  or ( iii)  for the purpose\nopinion or features of interest\n\nof academic,  scientific,  or public research or education. ( Emphasis\n\nadded.) \n\nSection 2( g)  of FOIA ( 5 ILCS 140/ 2( g) ( West 2014)),  defines a \" recurrent\n\nrequester\"  as: \n\na person that,  in the 12 months immediately preceding the request, \nhas submitted to the same public body ( i)  a minimum of 50\nrequests for records, ( ii)  a minimum of 15 requests for records\n\nwithin a 30 -day period,  or ( iii) a minimum of 7 requests for records\nwithin a 7 -day period.  For purposes of this definition,  requests\nmade by news media and non profit,  scientific,  or academic\norganizations shall not be considered in calculating the number\nof requests made in the time periods in this definition when the\nprincipal purpose of the requests is ( i)  to access and disseminate\ninformation concerning news and current or passing events, ( ii) for\narticles of opinion or features of interest to the public,  or ( iii) for\n\nthe purpose of academic,  scientific,  or public research or\n\neducation. ( Emphasis added.) \n\n5E -mail from Brendan Healey,  Mandell Menkes LLC,  to\n\nJanuary 30,  2017). \n\n\fMr. Brendan J.  Healey\nMs.  Elizabeth Scannell\n\nApril 4,  2017\n\nPage 5\n\nAs highlighted above,  the definitions of \"commercial purpose\"  and \" recurrent\n\nrequester\"  both exempt requests from members of the \" news media\"  who make requests for\n\ncertain purposes.  It is undisputed that SpotCrime has submitted the requisite number of FOIA to\nqualify as a recurrent requester and that its requests would be considered as having a\ncommercial purpose\"  if SpotCrime does not meet the \" news media\"  exception in sections 2( c- \n10)  and 2( g)  of FOIA.  Therefore,  whether the Sheriff' s Office properly designated SpotCrime' s\nrequests as having a \" commercial purpose\"  or being from a \" recurrent requester\"  hinges on\nwhether the definition of \"news media\"  in FOIA applies to SpotCrime\n\nSection 2( f) of FOIA defines \" news media\"  in relevant part as a \" newspaper or\n\nother periodical issued at regular intervals whether in print or electronic format, a news service\n\nwhether\n\nin print or electronic\n\nformat[.]\" \n\nIn the context of self -published websites purporting to\n\nbe \" news media,\"  this office has opined that the statutory definition of \"news media\"  requires\nmore than simply disseminating information through a website or e- mail: \n\nMerely disseminating information or criticism electronically\nthough a website,  or via e- mail,  does not meet the statutory\ndefinition of \"news media.\"  If it did,  then any person who chose to\npost an opinion or comment on a matter of public interest\n\nelectronically would become a news medium,  which was clearly\nnot the intent of the General Assembly when it enacted the\nexception.  Ill. Att'y Gen. PAC Req.  Rev.  Ltr. 44649,  issued\nDecember 2,  2016,  at 3 ( quoting Ill. Att'y Gen. PAC Req.  Rev.  Ltr. \n33323,  issued February 13,  2015,  at 4). \n\nIn the absence of Illinois law on how to interpret the term \" news media,\"  this\n\noffice has found cases from other jurisdictions interpreting similar statutory definitions to be\npersuasive.  Those cases hold that \" an individual or entity that self -publishes information on the\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\neditorial oversight or the creation of original content similar to that of traditional media\"  in order\n\nto be considered \" news media.\" \nobserved that \"[ t] he General Assembly has not expanded the definition in FOIA to include other\nindividuals or entities apart from those traditional media sources and their electronic versions.\" \nI11.  Att' y Gen.  PAC Req.  Rev.  Ltr. 44649,  at 5. \n\nI11.  Att' y Gen.  PAC Req.  Rev.  Ltr.  44649,  at 5.  We further\n\nThis office has reviewed the SpotCrime website and the other materials furnished\nby SpotCrime.  The SpotCrime website allows the public to access maps consisting of pinpoints\ndesignating the types of crimes reported in a certain area.  The crime alerts are similar,  but\nprovide customized statistics and maps for subscribers.  The fact that SpotCrime provides\n\n\fr. Brendan J.  Healey\nMs.  Elizabeth Scannell\n\nApril 4,  2017\n\nPage 6\n\npersonalized reports for its subscribers further supports the argument that it has a commercial\npurpose,  rather than existing to access and disseminate news of interest to the public at large. \nAlthough SpotCrime tailors data provided to subscribers based on their location and other\npreferences,  the essential product of the service is the compilation of data.  This product is not\n\noriginal content compiled by journalists using recognized journalistic standards,  but instead re- \npackages existing data for particular users,  depending on their preferences.  The SpotCrime\nservice therefore lacks the essential components of a \" newspaper,\" \" periodical\"  or \" news service\" \n\nincluded in FOIA' s definition of \"news media.\" \n\nis analogous to police blotters that historically\nhave been published in newspapers.  However, the police blotter is but one component of those\n\nSpotCrime argues that its product\n\ntraditional news publications,  not their defining characteristic. \n\nAccordingly,  this office concludes that SpotCrime is not \" news media\"  as that\n\nterm is defined in FOIA,  and the Sheriffs Office did not improperly designate it as a commercial\nand recurrent\nrequests according to the procedures set forth in sections 3.\n\nrequester.  Therefore,  the Sheriffs Office may respond to SpotCrime' s FOIA\n\n1 and 3. 2 of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at ( 217)  782- 9078 or nolson@atg. state. il. us. \n\nVery truly yours, \n\nNEIL P.  OLSON\n\nDeputy Public Access Counselor\nAssistant Attorney General,  Public Access Bureau\n\n34653 f 31 comm req 32 rec req proper county\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A data-aggregation website's classification for daily crime data requests","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-34653/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 4, 2017\n\nVia electronic mail\n\nMr. Brendan J. Healey\nMandell Menkes LLC\n\nOne North Franklin Street, Suite 3600\n\n[street address redacted for site publication -- see original PDF]\nbhealey@mandellmenkes.\n\ncom\n\nVia electronic mail\n\nMs. Elizabeth Scannell\n\nAssistant General Counsel\nOffice of the Cook County Sheriff\nLegal Affairs Division\n\n50 West Washington, Room 704\n\nChicago, Illinois 60602\n\nElizabeth. Scannell@cookcountyil. gov\n\nRE: FOIA Request for Review — 2015 PAC 34653\n\nDear Mr. Healey and Ms. Scannell: \n\nInformation Act (FOIA) (5 ILCS 14019. 5(f) (West 2014)). For the reasons that follow, the\n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nPublic Access Bureau concludes that the Cook County Sheriffs Office (Sheriffs Office) did not\nimproperly designate SpotCrime. com (SpotCrime) as a commercial and recurrent\n\nrequester. \n\nAccording to correspondence provided by the parties, \n\non\n\nbehalf of SpotCrime, began submitting FOIA requests to the Sheriff's Office for crime data\nbeginning in September, 2014. On March 5, 2015, SpotCrime requested that the Sheriffs Office\nfurnish data on a daily basis. On March 13, 2015, the Sheriff's Office responded that it could\nprovide the requested data on a monthly basis, but not on a daily basis. SpotCrime continued to\nsubmit FOIA requests on a daily basis for certain crime data, namely the block number of the\nlocation where the crime occurred, the date of the incident, and the type of crime. On April 7, \n\n2015, the Sheriffs Office notified SpotCrime that its FOIA requests would be treated as having a\n\ncommercial purpose\" and being from a \" recurrent requester\" pursuant to sections 3. 1 (5 ILCS\n140/ 3. 1 (West 2014)) and 3. 2 of FOIA (5 ILCS 140/ 3. 2 (West 2014)), respectively. On April 8, \n2015, SpotCrime reiterated its request\nthat crime data be provided on a daily basis, and asserted, \nSpotCrime publicly reports on the data and as such we are a member of the press.\" I\n\nSheriffs Office and requested that it provide factual information and legal arguments in support\n\nOn April 27, 2015, this office sent a copy of the Request\n\nfor Review to the\n\nof its designation of SpotCrime as a commercial and recurrent requester. This office also\n\nrequested that the Sheriffs Office respond to SpotCrime's assertion that it should be considered\n\nnews media\" for the purposes of FOIA, as defined by section 2(0 of FOIA (5 ILCS 140/ 2(0\nWest 2014)). \n\nOn May 6, 2015, the Sheriffs Office submitted a written response to this office. \n\nIt described the course of requests from SpotCrime, and noted that when SpotCrime initially\nsubmitted a FOIA request in September, 2014, it had indicated that the request was made for a\n\ncommercial purpose, and did not object to that designation. The Sheriff's Office further\n\naddressed whether SpotCrime is \" news media\": \" Spotcrime is a privately owned corporation that\nmakes commercial use of incident - level crime reports. Spotcrime makes crimemapping data\navailable to its ' users' and contracted subscribers for a fee. Even where those contracted\n\nsubscribers are members of the media, Spotcrime maintains a commercial\nthe crime data.\" 2\n\ninterest\n\nin providing\n\nSpotCrime, and on June 2, 2015, SpotCrime replied. It described its services in further detail: \n\nOn May 7, 2015, this office forwarded a copy of the Sheriff's Office's response to\n\nSpotCrime owns and operates a website that provides\n\nhighly localized crime news using data drawn from a variety of\n\nsources. * * * \n\nSuch crime data has long been a staple of print news\ncoverage in the form of police blotter sections. SpotCrime delivers\n\nthe data to consumers online and via email alerts. SpotCrime has\n\nmore than one million subscribers to its email alerts, and it sends\n\nmore than 10 million crime alert emails per month, making it the\nlargest crime alerting system in the United States. SpotCrime also\n\n1E -mail from\n\nto Elizabeth Scannell (April 8, 2015). \n\nBenjamin Reed, Assistant Attorney General, Public Access Bureau (May 6, 2015), at 4. \n\n2 Letter from Elizabeth Scannell, Assistant General Counsel, Office of the Cook County Sheriff to\n\nprovides crime data to media organizations and has partnered with\nGannett and Sinclair. l31\n\nSpotCrime argued that it is a \" news service\" as that term is used within FOIA's definition of\n\nnews media\": \n\nSpotCrime qualifies as a \" news service\" both because it provides\n\nfree crime information to visitors to its websites and also because it\n\nsyndicates and sells crime data to its corporate media clients. Just\n\nas other news services package and sell data and information to\n\nmedia clients, so too does SpotCrime. \n\nIn addition, SpotCrime\n\ndistributes crime news to individual\n\nrecipients at regular intervals\n\nvia electronic push notifications such as email, RSS, and social\n\nmedia. Finally, SpotCrime disseminates information to a\nsignificant cross section of the public. SpotCrime's website has\nmore than one million unique visits per month. l41\n\nOn August 25, 2016, SpotCrime furnished this office with an example of a crime\n\nalert sent to a subscriber. On January 30, 2017, SpotCrime provided an additional explanation of\nits services to subscribers: \n\nEach one of these [ crime] alerts is unique to the subscriber\n\nby location and radius. SpotCrime readers select a location and a\nradius for the personalized crime news they receive. SpotCrime\nthen provides a specific map and list of crimes for each subscriber. \n\nSpotCrime does not merely send its readers an un -edited\nstream of data. SpotCrime classifies each crime. Assault with a\n\ndeadly weapon, for example, will typically be classified as a\nshooting in the SpotCrime system. Historically, almost all police\ndepartments don't have a specific classification for shooting. \nSpotCrime also weeds non -crime events out of its news update[.] \n\n3 Letter from Brendan J. Healey, Mandell Menkes LLC, to Sarah Pratt, Public Access Counselor, \n\nOffice of the Attorney General (June 2, 2015), at\n\n1. \n\nOffice of the Attorney General (June 2, 2015), at 2. \n\n4 Letter from Brendan J. Healey, Mandell Menkes LLC, to Sarah Pratt, Public Access Counselor, \n\nEach SpotCrime subscriber gets localized crime reports\n\nwhenever a crime is proximate to the reader's address and within\nthe radius the reader has selected. 151\n\nDETERMINATION\n\nSection 2(c- 10) of FOIA (5 ILCS 140/ 2(c- 10) (West 2014)) defines \" commercial\n\npurpose\" as: \n\nthe use of any part of a public record or records, or information\nderived from public records, in any form for sale, resale, or\nsolicitation or advertisement\nthis definition, requests made by news media and non- profit, \nscientific, or academic organizations\n\nfor sales or services. For purposes of\n\nshall not be considered to\n\nbe made for a \" commercial purpose\" when the principal purpose\n\nof the request\n\nis (i) to access and disseminate information\n\nconcerning news and current or passing events, (ii) for articles of\nto the public, or (iii) for the purpose\nopinion or features of interest\n\nof academic, scientific, or public research or education. (Emphasis\n\nadded.) \n\nSection 2(g) of FOIA (5 ILCS 140/ 2(g) (West 2014)), defines a \" recurrent\n\nrequester\" as: \n\na person that, in the 12 months immediately preceding the request, \nhas submitted to the same public body (i) a minimum of 50\nrequests for records, (ii) a minimum of 15 requests for records\n\nwithin a 30 -day period, or (iii) a minimum of 7 requests for records\nwithin a 7 -day period. For purposes of this definition, requests\nmade by news media and non profit, scientific, or academic\norganizations shall not be considered in calculating the number\nof requests made in the time periods in this definition when the\nprincipal purpose of the requests is (i) to access and disseminate\ninformation concerning news and current or passing events, (ii) for\narticles of opinion or features of interest to the public, or (iii) for\n\nAs highlighted above, the definitions of \"commercial purpose\" and \" recurrent\n\nrequester\" both exempt requests from members of the \" news media\" who make requests for\n\ncertain purposes. It is undisputed that SpotCrime has submitted the requisite number of FOIA to\nqualify as a recurrent requester and that its requests would be considered as having a\ncommercial purpose\" if SpotCrime does not meet the \" news media\" exception in sections 2(c- \n10) and 2(g) of FOIA. Therefore, whether the Sheriff's Office properly designated SpotCrime's\nrequests as having a \" commercial purpose\" or being from a \" recurrent requester\" hinges on\nwhether the definition of \"news media\" in FOIA applies to SpotCrime\n\nSection 2(f) of FOIA defines \" news media\" in relevant part as a \" newspaper or\n\nother periodical issued at regular intervals whether in print or electronic format, a news service\n\nwhether\n\nin print or electronic\n\nformat[.]\" \n\nIn the context of self -published websites purporting to\n\nbe \" news media,\" this office has opined that the statutory definition of \"news media\" requires\nmore than simply disseminating information through a website or e- mail: \n\nMerely disseminating information or criticism electronically\nthough a website, or via e- mail, does not meet the statutory\ndefinition of \"news media.\" If it did, then any person who chose to\npost an opinion or comment on a matter of public interest\n\nelectronically would become a news medium, which was clearly\nnot the intent of the General Assembly when it enacted the\nexception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 44649, issued\nDecember 2, 2016, at 3 (quoting Ill. Att'y Gen. PAC Req. Rev. Ltr. \n33323, issued February 13, 2015, at 4). \n\nIn the absence of Illinois law on how to interpret the term \" news media,\" this\n\noffice has found cases from other jurisdictions interpreting similar statutory definitions to be\npersuasive. Those cases hold that \" an individual or entity that self -publishes information on the\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\neditorial oversight or the creation of original content similar to that of traditional media\" in order\n\nto be considered \" news media.\" \nobserved that \"[ t] he General Assembly has not expanded the definition in FOIA to include other\nindividuals or entities apart from those traditional media sources and their electronic versions.\" \nI11. Att' y Gen. PAC Req. Rev. Ltr. 44649, at 5. \n\nI11. Att' y Gen. PAC Req. Rev. Ltr. 44649, at 5. We further\n\nThis office has reviewed the SpotCrime website and the other materials furnished\nby SpotCrime. The SpotCrime website allows the public to access maps consisting of pinpoints\ndesignating the types of crimes reported in a certain area. The crime alerts are similar, but\n\npersonalized reports for its subscribers further supports the argument that it has a commercial\npurpose, rather than existing to access and disseminate news of interest to the public at large. \nAlthough SpotCrime tailors data provided to subscribers based on their location and other\npreferences, the essential product of the service is the compilation of data. This product is not\n\noriginal content compiled by journalists using recognized journalistic standards, but instead re- \npackages existing data for particular users, depending on their preferences. The SpotCrime\nservice therefore lacks the essential components of a \" newspaper,\" \" periodical\" or \" news service\" \n\nincluded in FOIA's definition of \"news media.\" \n\nis analogous to police blotters that historically\nhave been published in newspapers. However, the police blotter is but one component of those\n\nSpotCrime argues that its product\n\ntraditional news publications, not their defining characteristic. \n\nAccordingly, this office concludes that SpotCrime is not \" news media\" as that\n\nterm is defined in FOIA, and the Sheriffs Office did not improperly designate it as a commercial\nand recurrent\nrequests according to the procedures set forth in sections 3.\n\nrequester. Therefore, the Sheriffs Office may respond to SpotCrime's FOIA\n\n1 and 3. 2 of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 782- 9078 or nolson@atg. state. il. us. \n\nVery truly yours, \n\nNEIL P. OLSON\n\nDeputy Public Access Counselor\nAssistant Attorney General, Public Access Bureau\n\n34653 f 31 comm req 32 rec req proper county"}
{"id":856,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-04","case_number":null,"request_numbers":["34937"],"title":"Metropolitan Water Reclamation District properly withheld facility plans under 7(1)(k)","filename":"34937, issued March 4, 2016.pdf","rel_path":null,"word_count":1483,"summary":"The requester challenged the Metropolitan Water Reclamation District's denial of records under FOIA section 7(1)(k), which protects documents related to critical infrastructure security. The PAC determined that the District properly withheld the records because their disclosure could compromise the security of the facilities.","plain_summary":"A requester asked for detailed facility plans from the Metropolitan Water Reclamation District, but the District refused to provide them, citing security concerns. The Attorney General's office reviewed the documents and agreed that releasing the technical details of the facility's systems could pose a security risk. Consequently, the PAC closed the case, finding that the District acted within the law.","holding":"The Metropolitan Water Reclamation District properly withheld the requested facility plans under section 7(1)(k) of FOIA.","legal_question":"Whether the Metropolitan Water Reclamation District properly invoked the section 7(1)(k) exemption to withhold technical facility plans that could compromise infrastructure security.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"infrastructure security","subject_description":"The request sought detailed engineering plans and system specifications for existing water reclamation facilities.","ocr_status":"ok","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_k/34937%2C%20issued%20March%204%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["infrastructure security","facility plans","exemption 7(1)(k)","denial of records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 4,  2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Helen Shields Wright\n\nMetropolitan Water Reclamation District of Greater Chicago\n\n100 East Erie Street\n\nChicago,  Illinois 60611- 3154\n\nfoiarequest@mwrd. org\n\nRE:  FOIA Request for Review — 2015 PAC 34937\n\nDear\n\nand Ms.  Wright: \n\nPursuant to section 9. 5( a)  of the Freedom of Information Act (FOIA) ( 5 ILCS\n\n140/ 9. 5( a) ( West 2014)),  the Public Access Bureau has received a Request\n\nfor Review of the\n\nresponse by the\n\nOn March 16,  2015, \n\nsubmitted a FOIA request\n\nto the District seeking\n\nApril 26, 2015, \n\nrequest pursuant to section 7( 1)( k)  of FOIA ( 5 ILCS 140/ 7( 1)( k) ( West 2014)).  On\nsubmitted a Request for Review to this office contesting that denial. \n\nOn May 4,  2015,  the Public Access Bureau forwarded a copy of the Request\n\nfor\n\nReview to the District and requested unredacted copies of the responsive records for our\nconfidential review, as well as a detailed explanation of the legal and factual bases for the\nDistrict' s assertion of the section 7( 1)( k)  exemption.  On May 22,  2015,  the District provided\nresponsive records for our review,  together with a written response asserting that its engineers\nhad indicated \" that the release of any plans of our existing facilities that show locations and\ndetails of structural,  electrical,  mechanical,  process piping or any other related systems constitute\n\n500 South Second Street,  Springfield, \nIllinois 62706 • (\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \nFax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale.  Illinois 62901 • ( 618)  529- 6400 •  TTY:  161 R1 579- 6d61 •  Far. ( AIR)  579- rdIF\n\n\fMs.  Helen Shields Wright\n\nMarch 4,  2016\n\nPage 2\n\na security risk in that such information could be used in a deliberate attack on our facilities.\" 1\nAdditionally,  the District stated that its risk manager determined that \"[ t] he District should not\nrelease drawings of facilities that are existing and in use or may be used.  The release of\ninformation contained in these documents could pose a security risk to the District[ ]\"\n23,  2015, \nsimilar records to him,  disclosure of the requested records would not compromise security. \n\nreplied and asserted that because the District had previously provided\n\n2 On May\n\nincluded several records he had received with his reply. \n\nOn August 7,  2015,  the District sent a supplemental response and provided\n\nand explained that the drawings\n\nelectrical drawings for Division Q to our office and to\nthat has been removed,  is no longer in service\nwere provided because they \" contain equipment\nand do not include or reference any service buildings or equipment.\"3 The District, however, \nstated in its supplemental\nresponse that its Executive Director previously determined \" that any\ndrawings of existing facilities should not be released to the public because of the potential\nsecurity risk or threat as contemplated by [ section 7( 1)( k)]  under FOIA since such disclosure\nreplied by clarifying that he\ncould compromise security[.]\nrequested mechanical drawings and not electrical drawings.  On August 31,  2015,  the District\nsent another supplemental\nDivision 0 and R mechanical drawings may be disclosed.  However, the District continued to\nwithhold mechanical drawings of Division M pursuant\nto section 7( 1)( k),  asserting that \" these\nsheets contain existing facilities that are infuse and disclosure to the public represents a possible\n\nresponse after consulting with Engineering staff and determining that\n\ni4 On August 24,  2015, \n\nLetter from Helen Shields Wright,  Head Assistant Attorney,  Metropolitan Water Reclamation\nDistrict of Greater Chicago,  to Lindsey C.  Johnson,  Assistant Attorney General,  Public Access Bureau ( May 22, \n2015),  at 3. \n\nDistrict of Chicago,  to Lindsey C.  Johnson,  Assistant Attorney General,  Public Access Bureau ( May 22,  2015),  at 4.. \n\nLetter from Helen Shields Wright, Head Assistant Attorney,  Metropolitan Water Reclamation\n\nDistrict to Lindsey Johnson,  Assistant Attorney General,  Office of the Illinois Attorney General ( August 7,  2015),  at\n\nLetter from Helen Shields Wright,  Head Assistant Attorney,  Metropolitan Water Reclamation\n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago,  to Lindsey C.  Johnson,  Assistant Attorney General,  Public Access Bureau ( August 7, \n2015),  at 2. \n\n\fMs.  Helen Shields Wright\n\nMarch 4,  2016\n\nPage 3\n\npotential threat or compromise of security for same. i5 Division 0 and R mechanical drawings\nwere provided to this office and to\n\nwho confirmed receipt of the drawings on\n\nSeptember 9,  2015.  On September 13,  2015, \nprovided him with records similar to the mechanical drawings that it continued to withhold, and\n\nreplied that the District had previously\n\nthat disclosure of those records would not compromise security. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2014);  see also Southern Illinoisan v. \nIllinois Dept.  of Public Health,  218 I11.  2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( k) exempts from disclosure: \n\nArchitects'  plans,  engineers' \n\ntechnical submissions,  and\n\nother construction related technical documents for projects not\n\nconstructed or developed in whole or in part with public funds and\n\nthe same for projects constructed or developed with public funds, \n\nincluding but not limited to power generating and distribution\nstations and other transmission and distribution facilities, water\n\ntreatment facilities, airport facilities, sport stadiums,  convention\n\ncenters,  and all government\n\nowned,  operated,  or occupied\n\nbuildings,  but only to the extent that disclosure would\ncompromise security. ( Emphasis added.) \n\nSection 7( I)( k)  is partly intended to prevent the disclosure of records that could\n\nendanger public property: \" The issue is important in this day of threatened terrorism.  We' re\n\nalways on alert * * * \n\nfor these facilities to be accessed by individuals that would do harm to the\npublic[.]\"  Remarks of Representative Burke,  May 14,  2003,  House Debate on Senate Bill 1034, \nwhich as Public Act 325,  effective July 23,  2003,  amended section 7( 1)( k)  to include technical\n\n5Letter from Helen Shields Wright,  Head Assistant Attorney,  Metropolitan Water Reclamation\n\nDistrict of Greater Chicago,  to Piya Mukherjee,  Assistant Attorney General,  Office of the Illinois Attorney General, \nState of Illinois,  Public Access Bureau ( August 31,  2015). \n\n\fMs.  Helen Shields Wright\n\nMarch 4,  2016\n\nPage 4\n\nrecords concerning water treatment facilities,  sports stadiums and other specific public buildings\nand facilities,  at 160.  Public Act 93- 422,  effective August 5,  2003,  subsequently expanded\nsection 7( 1)( k)  to exempt,  in addition to architects'  plans and engineers'  technical submissions, \nother construction related technical documents[.]\"  Section 7( 1)( k)  has not been interpreted by\nan Illinois reviewing court. \n\nIn its response to the Public Access Bureau,  the District explains that all the\n\nrelevant drawings are either for buildings existing and in service or with future service possible. \nFurther,  the District contends that the records are \" technical engineering documents related to the\nconstruction of publicly funded government owned building and contain detailed information\nconcerning the function and structure of internal components,  which could compromise security\nof the District' s system.\" 6\n\nThis office has reviewed the' records in question.  Based upon our review, we\n\nconclude that the records do constitute \" architects'  plans,  engineers'  technical submissions,  and\n\nother construction related technical documents\"  within the scope of section 7( 1)( k).  Further,  we\nhave no basis to dispute the District' s assertion that these technical documents contain detailed\ninformation concerning the structural,  electrical,  mechanical,  and process piping which,  if\ndisclosed,  could compromise security of the facilities.  Even assuming\nsimilar records from the District\n7( 1)( k)  with respect to other records or require the District to provide him with the records in\nquestion.  Accordingly,  we conclude that the District did not improperly withhold these records\nunder section 7( 1)( k)  of FOIA. \n\nhas received\nin the past,  FOIA does not preclude the District from asserting\n\nIn accordance with the conclusions expressed in this letter,  the District has\n\nproperly withheld the documents responsive to\n\nrequest.  The Public Access Counselor\n\n6Letter from Helen Shields Wright,  Head Assistant Attorney,  Metropolitan Water Reclamation\nDistrict of Greater Chicago,  to Lindsey C.  Johnson,  Assistant Attorney General,  Public Access Bureau ( May 22, \n2015), at3. \n\n\fMs. Helen Shields Wright\n\nMarch 4,  2016\n\nPage 5\n\nhas determined that resolution of this matter does not require the issuance of a binding opinion. \nIf you have any questions,  please contact me at ( 312)  814- 5206.  This letter shall serve to close\nthis matter. \n\n34937 f 71k proper spd\n\nS.  PIYA MUKHERJI E\n\nAssistant Attorney General\nPublic Access Bureau\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Engineering plans for water reclamation facilities","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-34937/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 4, 2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Helen Shields Wright\n\nMetropolitan Water Reclamation District of Greater Chicago\n\n100 East Erie Street\n\nChicago, Illinois 60611- 3154\n\nfoiarequest@mwrd. org\n\nRE: FOIA Request for Review — 2015 PAC 34937\n\nDear\n\nand Ms. Wright: \n\nPursuant to section 9. 5(a) of the Freedom of Information Act (FOIA) (5 ILCS\n\n140/ 9. 5(a) (West 2014)), the Public Access Bureau has received a Request\n\nfor Review of the\n\nresponse by the\n\nOn March 16, 2015, \n\nsubmitted a FOIA request\n\nto the District seeking\n\nApril 26, 2015, \n\nrequest pursuant to section 7(1)(k) of FOIA (5 ILCS 140/ 7(1)(k) (West 2014)). On\nsubmitted a Request for Review to this office contesting that denial. \n\nOn May 4, 2015, the Public Access Bureau forwarded a copy of the Request\n\nfor\n\nReview to the District and requested unredacted copies of the responsive records for our\nconfidential review, as well as a detailed explanation of the legal and factual bases for the\nDistrict's assertion of the section 7(1)(k) exemption. On May 22, 2015, the District provided\nresponsive records for our review, together with a written response asserting that its engineers\nhad indicated \" that the release of any plans of our existing facilities that show locations and\ndetails of structural, electrical, mechanical, process piping or any other related systems constitute\n\na security risk in that such information could be used in a deliberate attack on our facilities.\" 1\nAdditionally, the District stated that its risk manager determined that \"[ t] he District should not\nrelease drawings of facilities that are existing and in use or may be used. The release of\ninformation contained in these documents could pose a security risk to the District[ ]\"\n23, 2015, \nsimilar records to him, disclosure of the requested records would not compromise security. \n\nreplied and asserted that because the District had previously provided\n\n2 On May\n\nincluded several records he had received with his reply. \n\nOn August 7, 2015, the District sent a supplemental response and provided\n\nand explained that the drawings\n\nelectrical drawings for Division Q to our office and to\nthat has been removed, is no longer in service\nwere provided because they \" contain equipment\nand do not include or reference any service buildings or equipment.\"3 The District, however, \nstated in its supplemental\nresponse that its Executive Director previously determined \" that any\ndrawings of existing facilities should not be released to the public because of the potential\nsecurity risk or threat as contemplated by [ section 7(1)(k)] under FOIA since such disclosure\nreplied by clarifying that he\ncould compromise security[.]\nrequested mechanical drawings and not electrical drawings. On August 31, 2015, the District\nsent another supplemental\nDivision 0 and R mechanical drawings may be disclosed. However, the District continued to\nwithhold mechanical drawings of Division M pursuant\nto section 7(1)(k), asserting that \" these\nsheets contain existing facilities that are infuse and disclosure to the public represents a possible\n\nresponse after consulting with Engineering staff and determining that\n\ni4 On August 24, 2015, \n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\nDistrict of Greater Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau (May 22, \n2015), at 3. \n\nDistrict of Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau (May 22, 2015), at 4.. \n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict to Lindsey Johnson, Assistant Attorney General, Office of the Illinois Attorney General (August 7, 2015), at\n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nLetter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau (August 7, \n\npotential threat or compromise of security for same. i5 Division 0 and R mechanical drawings\nwere provided to this office and to\n\nwho confirmed receipt of the drawings on\n\nSeptember 9, 2015. On September 13, 2015, \nprovided him with records similar to the mechanical drawings that it continued to withhold, and\n\nreplied that the District had previously\n\nthat disclosure of those records would not compromise security. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). \n\nSection 7(1)(k) exempts from disclosure: \n\nArchitects' plans, engineers' \n\ntechnical submissions, and\n\nother construction related technical documents for projects not\n\nconstructed or developed in whole or in part with public funds and\n\nthe same for projects constructed or developed with public funds, \n\nincluding but not limited to power generating and distribution\nstations and other transmission and distribution facilities, water\n\ntreatment facilities, airport facilities, sport stadiums, convention\n\ncenters, and all government\n\nowned, operated, or occupied\n\nbuildings, but only to the extent that disclosure would\ncompromise security. (Emphasis added.) \n\nSection 7(I)(k) is partly intended to prevent the disclosure of records that could\n\nendanger public property: \" The issue is important in this day of threatened terrorism. We' re\n\nalways on alert * * * \n\nfor these facilities to be accessed by individuals that would do harm to the\npublic[.]\" Remarks of Representative Burke, May 14, 2003, House Debate on Senate Bill 1034, \nwhich as Public Act 325, effective July 23, 2003, amended section 7(1)(k) to include technical\n\n5 Letter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Piya Mukherjee, Assistant Attorney General, Office of the Illinois Attorney General, \n\nrecords concerning water treatment facilities, sports stadiums and other specific public buildings\nand facilities, at 160. Public Act 93- 422, effective August 5, 2003, subsequently expanded\nsection 7(1)(k) to exempt, in addition to architects' plans and engineers' technical submissions, \nother construction related technical documents[.]\" Section 7(1)(k) has not been interpreted by\nan Illinois reviewing court. \n\nIn its response to the Public Access Bureau, the District explains that all the\n\nrelevant drawings are either for buildings existing and in service or with future service possible. \nFurther, the District contends that the records are \" technical engineering documents related to the\nconstruction of publicly funded government owned building and contain detailed information\nconcerning the function and structure of internal components, which could compromise security\nof the District's system.\" 6\n\nThis office has reviewed the' records in question. Based upon our review, we\n\nconclude that the records do constitute \" architects' plans, engineers' technical submissions, and\n\nother construction related technical documents\" within the scope of section 7(1)(k). Further, we\nhave no basis to dispute the District's assertion that these technical documents contain detailed\ninformation concerning the structural, electrical, mechanical, and process piping which, if\ndisclosed, could compromise security of the facilities. Even assuming\nsimilar records from the District\n7(1)(k) with respect to other records or require the District to provide him with the records in\nquestion. Accordingly, we conclude that the District did not improperly withhold these records\nunder section 7(1)(k) of FOIA. \n\nhas received\nin the past, FOIA does not preclude the District from asserting\n\nIn accordance with the conclusions expressed in this letter, the District has\n\nproperly withheld the documents responsive to\n\nrequest. The Public Access Counselor\n\n6 Letter from Helen Shields Wright, Head Assistant Attorney, Metropolitan Water Reclamation\nDistrict of Greater Chicago, to Lindsey C. Johnson, Assistant Attorney General, Public Access Bureau (May 22, \n\nhas determined that resolution of this matter does not require the issuance of a binding opinion. \nIf you have any questions, please contact me at (312) 814- 5206. This letter shall serve to close\nthis matter. \n\n34937 f 71k proper spd\n\nS. PIYA MUKHERJI E\n\nAssistant Attorney General\nPublic Access Bureau"}
{"id":857,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-07-14","case_number":null,"request_numbers":["35091"],"title":"University of Illinois properly withheld animal medical records but improperly redacted protocol names","filename":"35091, issued July 14, 2015.pdf","rel_path":null,"word_count":2617,"summary":"The requester sought various records related to a specific laboratory animal at the University of Illinois, but the University redacted and withheld portions of the records. The PAC determined that the University improperly redacted and withheld these records.","plain_summary":"The requester sought an animal's medical and research records from a public university, which withheld the animal's medical records entirely and redacted portions of the related research protocol. The PAC determined the medical records were properly exempt as research materials, but that the university had not shown that the names of individuals, departments, companies, and buildings in the protocol, or the sponsor's identity and the drug or device name, met any claimed exemption, and that only signatures and personal emergency-contact numbers were properly redacted. The university was directed to disclose the remaining redacted information.","holding":"The University of Illinois improperly redacted portions of the Protocol for Animal Use (names of individuals, departments, private companies, and buildings), but properly withheld the animal's medical records in full under section 7(1)(j)(iv) of FOIA. The source text does not state a holding on the drug or device name.","legal_question":"Whether the University of Illinois properly applied FOIA exemptions to withhold and redact records concerning laboratory animal health and research protocols.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(d)(vi)","7(1)(g)","7(1)(j)","7(1)(j)(iv)"],"public_body":"University of Illinois","requesting_party":"Anonymous requester","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"research records","subject_description":"The request concerned medical, intake, and research protocol records for a specific laboratory animal used in university research.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_j/35091%2C%20issued%20July%2014%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["laboratory animal","research records","redaction","university records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 14, 2015\n\nVia electronic mail\n\nMr. Thomas P. Hardy\nExecutive Director and\n\nChief Records Officer\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC-370\nUrbana, Illinois 61801\nfoia@uillinois.edu\n\nRE: FOIA Request for Review — 2015 PAC 35091\n\nDeal ana Mr. Hardy:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the University of Illinois (University) improperly redacted\nportions of records furnished to a: response to her April 10, 2015, FOIA\nrequest.\n\nOn that date submitted a FOIA request to the University seeking:\n\"any and all intake records, transfer records, daily care logs, animal health records, treatment and\nprogress reports, veterinary reports, necropsy reports, photographs, and videos related to\n[laboratory animal number 2662] (January 1, 2013-present)\" and \"any [ACUC-approved\nprotocols for any project to which this animal has been assigned[.]\"' On May 1, 2015, the\nUniversity provided [vith 47 pages of protocol records with portions redacted and\n\n'Letter frou to Thomas P. Hardy (April 10, 2015).\n\n500 South Second Street, Springfield, Mlinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Ilinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 » Fax: (618) 529-6416\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 2\n\nwithheld the animal's medical records in their entirety, citing sections 7(1)(a), 7(1)(b),\n7(1)(d)(vi), 711 )(g), 70) G), 701)G)(iv), and 7(1)(v) of FOIA (5 ILCS 140/7(1)(a), (1)(b),\n(A) WI), 1g), DO, MOG), C)(v) (West 2014)).\n\nOn May 5, 2015, this office received HR Request for Review contesting\nthe University's response. On May 13, 2015, this office forwarded a copy of the Request for\nReview to the University, asked it to provide unredacted copies of the records for our\nconfidential review, and requested that it provide a detailed explanation for each asserted\nexemption. On May 27, 2015, this office received the University's response together with\nunredacted copies of the records. The University withdrew its assertion of section 7(1)(a) of\nFOIA, but alleged that the animal's medical records are exempt in full under sections 7(1)(b) and\n7(1)(§)iv) of FOIA. The University also asserted that portions of the Protocol for Animal Use\nare exempt under sections 7(1)(d)(vi), 7(1)(g), 7(1)(v) of FOIA. Hid not reply to that\nresponse.\n\nANALYSIS\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2012). FOIA requires that “each public body shall make available to any person\nfor inspection and copying all public records, except as otherwise provided in Sections 7 and 8.5\nof this Act.\" 5 ILCS 140/3(a) (West 2012), as amended by Public Act 98-1129, effective\nDecember 3, 2014. The exemptions from disclosure are to be narrowly construed. See Lieber v.\nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nMedical Research Records\nSection 7(1)(j)(iv) of FOIA exempts from disclosure:\n\n(j) The following information pertaining to educational\nmatters:\n\neK *\n\n(iv) course materials or research materials used by faculty\nmembers.\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 3\n\nThe University asserts that the animal's medical records are exempt from disclosure pursuant to\nsection 7(1)(j)(iv) of FOIA as faculty research materials for a research project to test new\nmedical devices. The University states that:\n\nThe veterinarians who are charged with caring for the animals and\nproviding veterinary support for the research are all faculty\nmembers who use the requested animal health records, treatment\nand progress reports to carry out their duties. These medical\nrecords are maintained by the University as documentation of this\nresearch. They contain information on the device being tested, the\ndog's reaction to the same, the veterinarian's impressions and notes,\nand modifications made to the research.”\n\nBlack's Law Dictionary defines \"research\" as \"[s]erious study of a subject with\nthe purpose of acquiring more knowledge, discovering new facts, or testing new ideas.\" Black's\nLaw Dictionary (10th ed. 2014), at 1500. “Materials” is defined as \"[i]nformation, ideas, data,\ndocuments, or other things that are used in reports, books, films, studies, etc.\" Black's Law\nDictionary (10th ed. 2014), at 1124. The University asserts that the animal's medical records\ncontain \"raw research data\" and \"notes, opinions, and reactions of the veterinarians\" about an\nanimal's reaction to the device being tested.’ This office has reviewed the medical records and\nconcludes that the information withheld consists of data and observations used by faculty\nmembers in the testing of a medical device or drug, and therefore constitute research materials\nexempted from disclosure by section 7(1)(j)(iv) of FOIA. Because those medical records are\nexempt under section 7(1)(j)(iv) of FOIA, we need not determine whether they are also exempt\nunder sections 7(1)(b), 7(1)(f), or 7(1)().\n\nProtocol for Animal Use\n\nThe University asserts that portions of the Protocol for Animal Use and\nmodifications to the Protocol are exempt under sections 7(1)(b), 7(1)(d)(vi), 7(1)(g), 711 )(v) of\nFOIA. Specifically, the University claims that the names of individuals, departments, private\ncompanies, and buildings were properly redacted under sections 7(1)(d)(vi) and 7(1)(v) of FOIA.\n\n*Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 2.\n\n3Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\n\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 2-3.\n\na\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 4\n\nIn addition, the University asserts that the names of the private company sponsors and the names\nof the drug or device being tested are exempt under section 7(1)(g) of FOIA.\n\nSection 7(1)(d)(vi) of FOIA\n\nSection 7(1)(d)(vi) of FOIA exempts \"[r]ecords in the possession of any public\nbody created in the course of administrative enforcement proceedings, and any law enforcement\nor correctional agency for law enforcement purposes, but only to the extent that disclosure would\n* * * endanger the life or physical safety of law enforcement personnel or any other person[.]\"\nThe University has not asserted or established that any of the responsive records were created in\nthe course of an administrative enforcement proceeding or possessed by a law enforcement\nagency for law enforcement purposes. Accordingly, the University has not sustained its burden\nof demonstrating that the records are exempt from disclosure under section 7(1)(d)(vi) of FOIA.\n\nSection 7(1)(v) of FOIA\n\nThe University also redacted the names of individuals, departments, private\ncompanies, and buildings under section 7(1)(v) of FOIA, which exempts from disclosure:\n\nVulnerability assessments, security measures, and response\npolicies or plans that are designed to identify, prevent or respond to\npotential attacks upon a community's population or systems,\nfacilities, or installations, the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community, but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of the\nmeasures or the safety of the personnel who implement them or the\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\nsystems or protocols, or to tactical operations.\n\nThe University's response states that the names of the individuals, departments, private\ncompanies, and buildings are considered secure information because \"[g]iven the bomb threat\npreviously received by the University, it is reasonable to conclude that public disclosure of the\nsame will lead to the domestic terrorist threats described above and jeopardize the effectiveness\nof keeping the University community safe.\"*\n\n‘Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 5.\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 5\n\nRecords that merely identify the names of people, departments, companies, and\nbuildings are not vulnerability assessments, security measures, or response policies or plans\nwithin the scope of section 7(1)(v) of FOIA. Further, the redacted information provides no\ndetails concerning how the University maintains the safety of its personnel and facilities.\nAccordingly, we conclude that the University has not sustained its burden of demonstrating that\nthe names of individuals, departments, corporations, and buildings are exempt from disclosure\nunder section 7(1)(v) of FOIA.\n\nSection 7(1)(g) of FOIA\nSection 7(1)(g) of FOIA exempts from disclosure:\n\nTrade secrets and commercial or financial information\nobtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\n\nSee also BlueStar Energy Services, Inc. v. Illinois Commerce Com‘n, 374 Il. App. 3d 990, 995\n(1* Dist. 2007) (\"The term trade secret in the context of FOIA has been interpreted to include\ninformation that (1) would either inflict substantial competitive harm or (2) make it more\ndifficult for the agency to induce people to submit similar information in the future” (emphasis in\noriginal.))\n\nThe University states that its animal research involves \"the University, a private\ncompany the University works with on the research and the project sponsor, which is another\nprivate company who is the owner of the drug and/or device that is being tested.\"> The\nUniversity asserts that it has entered into a contractual agreement that requires the sponsor's\nname and the name of the device or drug being tested to be kept confidential, and that the\ndisclosure of this information would cause competitive harm to the sponsor because \"other\ncompanies would know the business practices of the sponsor, what types of research they were\n\nSLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\n\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 3.\n\nPF\nMr. Thomas P. Hardy\nJuly 14, 2015\n\nPage 6\n\nengaging in, whether they were testing a new drug or device or testing an existing drug or device\nbut for a new purpose.\"®\n\nUnlike circumstances in which trade secrets and commercial or financial\ninformation is provided in the course of bidding on a government contract or in response to a\ngovernment agency's investigation, the name of the drug or device being tested was provided as\npart of joint research by the University and the sponsor. This name however, is a working name\nthat does not identify the specific chemical compound or device. The University's assertion that\ndisclosure of the name would cause competitive harm to the sponsor or make it less likely for\nprivate companies to engage in joint research with the University is largely conclusory and\ndevoid of supporting facts. See Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007,\n1020 (1st Dist. 1994) (holding that public body failed to demonstrate that a list of all vendors of\nlottery tickets in the City of Chicago and their sales data were not exempt under section 7(1)(g)).\nFurther, the records in question relate to public funds and therefore are expressly subject to\ndisclosure pursuant to section 2.5 of FOIA (5 ILCS 140/2.5(West 2012)), which provides: \"All\nrecords relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.\" See also article VIII, section 1(c) of the IHinois Constitution of 1970: \"[R]Jecords of the\nobligation, receipt and use of public funds of the State, units of local government and school\ndistricts are public records available for inspection by the public according to law.” These\nprovisions illustrate the General Assembly's recognition of a strong public interest in the\ndisclosure of information such as the identity of companies that contract with public bodies to\nperform research and the type of drug or device that is researched pursuant to the contracts.\nAccordingly, we conclude that the University has not sustained its burden of demonstrating by\nclear and convincing evidence this information is exempt from disclosure pursuant to section\n7(1)(g) of FOIA.\n\nSection 7(1)(b) of FOIA\n\nThe University also withheld business addresses, business and emergency contact\ntelephone numbers, business e-mail addresses, and signatures under section 7(1)(b), which\nexempts from disclosure \"private information.\" Section 2(c-5) of FOIA defines \"private\ninformation\" as “unique identifiers\" including \"home or personal telephone numbers,\" \"home\naddress\", and \"personal email addresses.\" (Emphasis added.) In addition, the Public Access\nBureau has also previously determined that signatures constitute \"unique identifiers\" for the\npurposes of section 7(1)(b) of FOIA, and are therefore exempt as private information. Ill. Att'y\nGen. PAC Req. Rev. Ltr. 18410, issued April 5, 2012. Accordingly, the University properly\n\n‘Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 4.\n\nMr. Thomas P. Hardy\nJuly 14, 2015\nPage 7\n\nredacted individuals’ signatures and personal emergency contact telephone numbers. However,\nbecause business information does not uniquely identify any individual or constitute \"home\" or\n\"personal\" information, we conclude that business addresses, business telephone numbers, and\nbusiness e-mail addresses were improperly redacted under section 7(1)(b) of FOIA.\n\nIn accordance with the conclusions expressed in this letter, this office requests\nthat the University disclose an unredacted copy of the Protocol for Anima! Use and\nmodifications to the protocol with only emergency contact numbers and signatures redacted.\nThe Public Access Counselor has determined that resolution of this matter does not require the\nissuance of a binding opinion. This letter serves to close this matter. If you have any questions,\nplease contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nMATT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n35091 f 71jiv proper 7idiv 71v 71g improper 71b proper/improper univ\n\nJedlicka, Kathleen\n\nLL\n\nFrom: Jedlicka, Kathleen\n\nSent: Tuesday, July 14, 2015 4:09 PM\n\nTo: ‘novickrebecca@gmail.com’; 'foia@uillinois.edu'\n\nCe: Hartman, Matthew\n\nSubject: PAC Request for Review 35091\n\nAttachments: 35091 f 71jiv proper 71div 71v 71g improper 71b proper improper univ.pdf\n\nPlease find the attached correspondence from AAG Hartman. Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\n\nOffice of the Attorney General, Lisa Madigan\n500 South 2nd Street\n\nSpringfield, IL 62706\n\nE-MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient(s)\n\nonly. This e-mail and any attachments might contain information that is confidential, legally privileged or otherwise protected or\nexempt from disclosure under applicable law. if you are not a named recipient, or if you are named but believe that you received\nthis e-mail in error, please notify the sender immediately by telephone or return e-mail and promptly delete this e-mail and any\nattachments and copies thereof from your system. If you are not the intended recipient, please be aware that any copying,\ndistribution, dissemination, disclosure or other use of this e-mail and any attachments is unauthorized and prohibited. Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General. Thank you for your cooperation.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the University of Illinois for medical and research records concerning a specific laboratory animal. The University withheld the animal's medical records in full and redacted portions of the research protocol, citing various legal exemptions. The Attorney General's office reviewed the case and concluded that the animal's medical records were properly withheld as research materials under section 7(1)(j)(iv) of FOIA, but that the University improperly redacted names of individuals, departments, companies, and buildings from the protocol. The provided source text does not include a final conclusion on whether the name of the drug or device being tested was properly withheld.","card_headline":"Animal research protocol and medical records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-35091/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 14, 2015\n\nVia electronic mail\n\nMr. Thomas P. Hardy\nExecutive Director and\n\nChief Records Officer\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC-370\nUrbana, Illinois 61801\nfoia@uillinois.edu\n\nRE: FOIA Request for Review — 2015 PAC 35091\n\nDeal ana Mr. Hardy:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the University of Illinois (University) improperly redacted\nportions of records furnished to a: response to her April 10, 2015, FOIA\nrequest.\n\nOn that date submitted a FOIA request to the University seeking:\n\"any and all intake records, transfer records, daily care logs, animal health records, treatment and\n\nwithheld the animal's medical records in their entirety, citing sections 7(1)(a), 7(1)(b),\n7(1)(d)(vi), 711)(g), 70) G), 701)G)(iv), and 7(1)(v) of FOIA (5 ILCS 140/7(1)(a), (1)(b),\n(A) WI), 1g), DO, MOG), C)(v) (West 2014)).\n\nOn May 5, 2015, this office received HR Request for Review contesting\nthe University's response. On May 13, 2015, this office forwarded a copy of the Request for\nReview to the University, asked it to provide unredacted copies of the records for our\nconfidential review, and requested that it provide a detailed explanation for each asserted\nexemption. On May 27, 2015, this office received the University's response together with\nunredacted copies of the records. The University withdrew its assertion of section 7(1)(a) of\nFOIA, but alleged that the animal's medical records are exempt in full under sections 7(1)(b) and\n7(1)(§)iv) of FOIA. The University also asserted that portions of the Protocol for Animal Use\nare exempt under sections 7(1)(d)(vi), 7(1)(g), 7(1)(v) of FOIA. Hid not reply to that\nresponse.\n\nANALYSIS\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2012). FOIA requires that “each public body shall make available to any person\nfor inspection and copying all public records, except as otherwise provided in Sections 7 and 8.5\nof this Act.\" 5 ILCS 140/3(a) (West 2012), as amended by Public Act 98-1129, effective\nDecember 3, 2014. The exemptions from disclosure are to be narrowly construed. See Lieber v.\nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nMedical Research Records\nSection 7(1)(j)(iv) of FOIA exempts from disclosure:\n\nThe University asserts that the animal's medical records are exempt from disclosure pursuant to\nsection 7(1)(j)(iv) of FOIA as faculty research materials for a research project to test new\nmedical devices. The University states that:\n\nThe veterinarians who are charged with caring for the animals and\nproviding veterinary support for the research are all faculty\nmembers who use the requested animal health records, treatment\nand progress reports to carry out their duties. These medical\nrecords are maintained by the University as documentation of this\nresearch. They contain information on the device being tested, the\ndog's reaction to the same, the veterinarian's impressions and notes,\nand modifications made to the research.”\n\nBlack's Law Dictionary defines \"research\" as \"[s]erious study of a subject with\nthe purpose of acquiring more knowledge, discovering new facts, or testing new ideas.\" Black's\nLaw Dictionary (10th ed. 2014), at 1500. “Materials” is defined as \"[i]nformation, ideas, data,\ndocuments, or other things that are used in reports, books, films, studies, etc.\" Black's Law\nDictionary (10th ed. 2014), at 1124. The University asserts that the animal's medical records\ncontain \"raw research data\" and \"notes, opinions, and reactions of the veterinarians\" about an\nanimal's reaction to the device being tested.’ This office has reviewed the medical records and\nconcludes that the information withheld consists of data and observations used by faculty\nmembers in the testing of a medical device or drug, and therefore constitute research materials\nexempted from disclosure by section 7(1)(j)(iv) of FOIA. Because those medical records are\nexempt under section 7(1)(j)(iv) of FOIA, we need not determine whether they are also exempt\nunder sections 7(1)(b), 7(1)(f), or 7(1)().\n\nProtocol for Animal Use\n\nThe University asserts that portions of the Protocol for Animal Use and\nmodifications to the Protocol are exempt under sections 7(1)(b), 7(1)(d)(vi), 7(1)(g), 711)(v) of\nFOIA. Specifically, the University claims that the names of individuals, departments, private\ncompanies, and buildings were properly redacted under sections 7(1)(d)(vi) and 7(1)(v) of FOIA.\n\n*Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n(May 26, 2015), at 2.\n\n3 Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\n\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n\nIn addition, the University asserts that the names of the private company sponsors and the names\nof the drug or device being tested are exempt under section 7(1)(g) of FOIA.\n\nSection 7(1)(d)(vi) of FOIA\n\nSection 7(1)(d)(vi) of FOIA exempts \"[r]ecords in the possession of any public\nbody created in the course of administrative enforcement proceedings, and any law enforcement\nor correctional agency for law enforcement purposes, but only to the extent that disclosure would\n* * * endanger the life or physical safety of law enforcement personnel or any other person[.]\"\nThe University has not asserted or established that any of the responsive records were created in\nthe course of an administrative enforcement proceeding or possessed by a law enforcement\nagency for law enforcement purposes. Accordingly, the University has not sustained its burden\nof demonstrating that the records are exempt from disclosure under section 7(1)(d)(vi) of FOIA.\n\nSection 7(1)(v) of FOIA\n\nThe University also redacted the names of individuals, departments, private\ncompanies, and buildings under section 7(1)(v) of FOIA, which exempts from disclosure:\n\nVulnerability assessments, security measures, and response\npolicies or plans that are designed to identify, prevent or respond to\npotential attacks upon a community's population or systems,\nfacilities, or installations, the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community, but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of the\nmeasures or the safety of the personnel who implement them or the\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\nsystems or protocols, or to tactical operations.\n\nThe University's response states that the names of the individuals, departments, private\ncompanies, and buildings are considered secure information because \"[g]iven the bomb threat\npreviously received by the University, it is reasonable to conclude that public disclosure of the\nsame will lead to the domestic terrorist threats described above and jeopardize the effectiveness\nof keeping the University community safe.\"*\n\n‘Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n\nRecords that merely identify the names of people, departments, companies, and\nbuildings are not vulnerability assessments, security measures, or response policies or plans\nwithin the scope of section 7(1)(v) of FOIA. Further, the redacted information provides no\ndetails concerning how the University maintains the safety of its personnel and facilities.\nAccordingly, we conclude that the University has not sustained its burden of demonstrating that\nthe names of individuals, departments, corporations, and buildings are exempt from disclosure\nunder section 7(1)(v) of FOIA.\n\nSection 7(1)(g) of FOIA\nSection 7(1)(g) of FOIA exempts from disclosure:\n\nTrade secrets and commercial or financial information\nobtained from a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested.\n\nSee also BlueStar Energy Services, Inc. v. Illinois Commerce Com‘n, 374 Il. App. 3d 990, 995\n(1* Dist. 2007) (\"The term trade secret in the context of FOIA has been interpreted to include\ninformation that (1) would either inflict substantial competitive harm or (2) make it more\ndifficult for the agency to induce people to submit similar information in the future” (emphasis in\noriginal.))\n\nThe University states that its animal research involves \"the University, a private\ncompany the University works with on the research and the project sponsor, which is another\nprivate company who is the owner of the drug and/or device that is being tested.\"> The\nUniversity asserts that it has entered into a contractual agreement that requires the sponsor's\nname and the name of the device or drug being tested to be kept confidential, and that the\ndisclosure of this information would cause competitive harm to the sponsor because \"other\ncompanies would know the business practices of the sponsor, what types of research they were\n\nSLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\n\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n\nengaging in, whether they were testing a new drug or device or testing an existing drug or device\nbut for a new purpose.\"®\n\nUnlike circumstances in which trade secrets and commercial or financial\ninformation is provided in the course of bidding on a government contract or in response to a\ngovernment agency's investigation, the name of the drug or device being tested was provided as\npart of joint research by the University and the sponsor. This name however, is a working name\nthat does not identify the specific chemical compound or device. The University's assertion that\ndisclosure of the name would cause competitive harm to the sponsor or make it less likely for\nprivate companies to engage in joint research with the University is largely conclusory and\ndevoid of supporting facts. See Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007,\n1020 (1st Dist. 1994) (holding that public body failed to demonstrate that a list of all vendors of\nlottery tickets in the City of Chicago and their sales data were not exempt under section 7(1)(g)).\nFurther, the records in question relate to public funds and therefore are expressly subject to\ndisclosure pursuant to section 2.5 of FOIA (5 ILCS 140/2.5(West 2012)), which provides: \"All\nrecords relating to the obligation, receipt, and use of public funds of the State, units of local\ngovernment, and school districts are public records subject to inspection and copying by the\npublic.\" See also article VIII, section 1(c) of the IHinois Constitution of 1970: \"[R]Jecords of the\nobligation, receipt and use of public funds of the State, units of local government and school\ndistricts are public records available for inspection by the public according to law.” These\nprovisions illustrate the General Assembly's recognition of a strong public interest in the\ndisclosure of information such as the identity of companies that contract with public bodies to\nperform research and the type of drug or device that is researched pursuant to the contracts.\nAccordingly, we conclude that the University has not sustained its burden of demonstrating by\nclear and convincing evidence this information is exempt from disclosure pursuant to section\n7(1)(g) of FOIA.\n\nSection 7(1)(b) of FOIA\n\nThe University also withheld business addresses, business and emergency contact\ntelephone numbers, business e-mail addresses, and signatures under section 7(1)(b), which\nexempts from disclosure \"private information.\" Section 2(c-5) of FOIA defines \"private\ninformation\" as “unique identifiers\" including \"home or personal telephone numbers,\" \"home\naddress\", and \"personal email addresses.\" (Emphasis added.) In addition, the Public Access\nBureau has also previously determined that signatures constitute \"unique identifiers\" for the\npurposes of section 7(1)(b) of FOIA, and are therefore exempt as private information. Ill. Att'y\nGen. PAC Req. Rev. Ltr. 18410, issued April 5, 2012. Accordingly, the University properly\n\n‘Letter from Thomas P. Hardy, Executive Director and Chief Records Officer, Office for\nUniversity Relations, University of Illinois, to Matt Hartman, [Assistant Attorney General], Public Access Bureau\n\nredacted individuals’ signatures and personal emergency contact telephone numbers. However,\nbecause business information does not uniquely identify any individual or constitute \"home\" or\n\"personal\" information, we conclude that business addresses, business telephone numbers, and\nbusiness e-mail addresses were improperly redacted under section 7(1)(b) of FOIA.\n\nIn accordance with the conclusions expressed in this letter, this office requests\nthat the University disclose an unredacted copy of the Protocol for Anima! Use and\nmodifications to the protocol with only emergency contact numbers and signatures redacted.\nThe Public Access Counselor has determined that resolution of this matter does not require the\nissuance of a binding opinion. This letter serves to close this matter. If you have any questions,\nplease contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nMATT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n35091 f 71jiv proper 7idiv 71v 71g improper 71b proper/improper univ\n\nJedlicka, Kathleen\n\nLL\n\nFrom: Jedlicka, Kathleen\n\nSent: Tuesday, July 14, 2015 4:09 PM\n\nTo: ‘novickrebecca@gmail.com’; 'foia@uillinois.edu'\n\nCe: Hartman, Matthew\n\nSubject: PAC Request for Review 35091\n\nAttachments: 35091 f 71jiv proper 71div 71v 71g improper 71b proper improper univ.pdf\n\nPlease find the attached correspondence from AAG Hartman. Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\n\nOffice of the Attorney General, Lisa Madigan\n500 South 2nd Street\n\nSpringfield, IL 62706\n\nE-MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient(s)\n\nonly. This e-mail and any attachments might contain information that is confidential, legally privileged or otherwise protected or\nexempt from disclosure under applicable law. if you are not a named recipient, or if you are named but believe that you received\nthis e-mail in error, please notify the sender immediately by telephone or return e-mail and promptly delete this e-mail and any\nattachments and copies thereof from your system. If you are not the intended recipient, please be aware that any copying,\ndistribution, dissemination, disclosure or other use of this e-mail and any attachments is unauthorized and prohibited. Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General. Thank you for your cooperation."}
{"id":858,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-31","case_number":null,"request_numbers":["36017"],"title":"Governor's Office improperly withheld correspondence from former official under FOIA exemptions","filename":"36017, issued March 31, 2016.pdf","rel_path":null,"word_count":1560,"summary":"The Associated Press requested correspondence between the Governor's Office and former IDOC Director Donald Stolworthy, which the Governor's Office partially withheld under FOIA exemptions 7(1)(f) and 7(1)(m). The PAC determined that the Governor's Office improperly withheld portions of the requested records.","plain_summary":"The requester sought correspondence between the governor's office and a former state agency director, portions of which the office withheld as deliberative material, attorney-client communications, and personal information. The PAC determined that most of the pre-decisional emails and the personal emails were properly withheld, but that certain factual records and a legal-matter update did not qualify as deliberative or privileged and were improperly withheld. The governor's office was directed to release the improperly withheld records.","holding":"The Governor's Office improperly withheld records that did not qualify for the claimed exemptions under sections 7(1)(f) (deliberative process) or 7(1)(m) (attorney-client privilege), specifically factual records and an update on a legal matter that were not predecisional or privileged.","legal_question":"Whether the Governor's Office properly applied FOIA exemptions 7(1)(f) (preliminary drafts/deliberative process) and 7(1)(m) (attorney-client privilege) to correspondence with a former state official.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)","7(1)(c)"],"public_body":"Office of the Illinois Governor","requesting_party":"Mr. John O'Connor (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"correspondence","subject_description":"The request sought correspondence between the Governor's Office and former Department of Corrections Director Donald Stolworthy.","ocr_status":"llm_reocr","ocr_quality":87.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-for-purely-factual-material/36017%2C%20issued%20March%2031%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["governor","correspondence","FOIA exemption","public records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 31,  2016\n\nVia electronic mail\n\nMr. John O' Connor ( will receive letter only) \nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs.  Christina McClernon\n\nAssociate General Counsel/ FOIA Officer\n\nOffice of Governor Bruce Rauner\n\n100 West Randolph,  Suite 16- 100\n\nChicago,  Illinois 60601\n\nChristina. mcclemon@illinois. gov\n\nRE:  FOIA Request\n\nfor Review — 2015 PAC 36017\n\nDear Mr.  O' Connor and Ms.  McClernon: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)).  For the reasons stated below,  the\nPublic Access Bureau concludes that the Office of the Illinois Governor ( Governor' s Office) \nimproperly denied portions of Mr. John O' Connor's May 22,  2015,  FOIA request. \n\nOn that date,  Mr. O' Connor,  on behalf of the Associated Press,  submitted a FOIA\nrequest to the Governor' s Office seeking copies of all correspondence,  between May 1,  2015,  and\nthe date of the request,  exchanged by the Governor' s Office and former Illinois Department of\nCorrections Director Donald Stolworthy.  On June 8,  2015,  the Governor' s Office provided\ncertain records but withheld others citing sections 70)( f) and 7( 1)( m)  of FOIA ( 5 ILCS\n140/ 7( 1)(\n\nf), ( 1)( m) ( West 2014)).  Mr.  O' Connor' s Request\n\nfor Review disputes the denial of the\n\nrecords that the Governor' s Office withheld. \n\nOn July 6,  2015,  this office sent a copy of the Request\n\nfor Review to the\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  John O' Connor\n\nMs.  Christina McClernon\n\nMarch 31,  2016\n\nPage 2\n\nGovernor' s Office and requested copies of the records that were withheld for our confidential\n\nreview,  together with a detailed explanation for the applicability of sections 7( 1)(\nThe Governor' s Office furnished those materials on July 27,  2015,  adding that some of the\nrecords are exempt from disclosure pursuant to section 7( 1)( c)  of FOIA (5 ILCS 140/ 7( 1)( c) \n\nf) and 7( 1)( m). \n\nWest 2014)),  as well.  The Governor' s Office also provided a confidential response in which it\n\nprovided additional\nexemptions.  A copy of the non -confidential response was sent to Mr.  O' Connor,  who did not\n\ninformation concerning the records and the applicability of the asserted\n\nreply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2014).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations,  memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated,  except\n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 7( 1)(\n5 U. S. C. § 552( b)( 5) ( 2012)),  which applies to \" inter-  and intra -agency predecisional and\ndeliberative material.\"  Harwood v.  McDonough,  344 Ill. App. 3d 242,  247 ( 1st Dist. 2003).  The\nexemption is \" intended to protect the communications process and encourage frank and open\n\ndiscussion among agency employees before a final decision is made.\"  Harwood,  344 111.  App. \n3d at 248.  The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\"  Enviro Tech Intern.,  Inc.  v.  United States Environmental Protection\nAgency,  371 F. 3d 370,  374 ( 7th Cir. 2004).  Rather, \"[ o] nly those portions of a predecisional\ndocument\nCity of Chicago,  2013 IL App ( 1st)  121846, ¶ 24,  7 N.E. 3d 741,  748 ( 2013),  quoting Public\nCitizen,  Inc.  v.  Office of Management &  Budget,  598 F. 3d 865,  876 ( D. C.  Cir.  2010);  see also\nChemical Weapons Working Group v.  U.S.  E. P.A.,  185 F. R. D.  1,  3 ( D. C.  Cir 1999),  quoting\nDudman Communications v.  Department of the Air Force, 815 F. 2d 1565,  1568 ( D.C.  Cir.  1987) \n\nthe give and take of the deliberative process may be withheld.\"  Kalven v. \n\nthat reflect\n\nT] he critical question is whether ' disclosure of the materials would expose an agency' s\n\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.\"'). \n\nWe have reviewed the records in question,  which consist in large part of inter- \n\nagency and intra -agency e- mails that express opinions and recommendations in the process of\nformulating various actions.  Such records are pre -decisional\n\nin nature,  and there is no indication\n\n\fMr. John O' Connor\n\nMs.  Christina McClernon\n\nMarch 31,  2016\n\nPage 3\n\nthat they were publicly cited or identified by the head of any public body.  Accordingly,  we\nconclude that the Governor's Office has sustained its burden of demonstrating that those records\nare exempt from disclosure pursuant to section 7( 1)(\n\nf) of FOIA.  Because that determination is\n\ndispositive,  we decline to address the Governor' s Office' s assertion that those records are exempt\nfrom disclosure pursuant\n\nto section 70)( m)  of FOIA. \n\nHowever, the Governor's Office also withheld several e- mails and attachments\n\nthat contain strictly factual information.  These include certain facts related to upcoming\nmeetings and an update concerning a legal matter which identifies actions taken by IDOC and\nrelated statistics and other facts.  The Governor' s Office has not demonstrated how these records\n\nthe give and take of any deliberative process. \n\nreflect\nIn addition,  the withheld records include\ndiscrete e- mails that were sent to third parties and,  therefore, do not constitute inter -agency or\nintra -agency communication.  Accordingly,  we conclude that the Governor' s Office improperly\nwithheld those records pursuant\n\nto section 7( 1)( f) of FOIA. \n\nSection 7( 1)( m)  of FOIA\n\nBased on the confidential\n\nresponse provided to this office,  it appears that the\n\nGovernor' s Office also withheld the update concerning a legal matter pursuant to section\n70)( m),  which exempts from disclosure: \n\nCommunications between a public body and an attorney\n\nrepresenting the public body that would not be subject\ndiscovery in litigation,  and materials prepared or compiled by or\nfor a public body in anticipation of a criminal,  civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nto\n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7( 1)( m).  People ex rel.  Ulrich v.  Stukel,  294 III.  App.  3d 193,  201 ( 1st Dist.  1997).  A\nparty asserting that a communication to an attorney is protected by the attorney- client privilege\nmust show that: \"( 1)  a statement originated in confidence that it would not be disclosed; ( 2)  it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices;  and ( 3)  it remained confidential.\"  Cangelosi v.  Capasso,  366 Ill. App. 3d 225,  228 ( 2nd\nDist. 2006);  see also Hartford Fire Ins.  Co.  v.  Garvey,  109 F. R. D.  323,  327 ( N.D.  Cal.  1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality,  which is not presumed\");  In re General Instrument Corp. Securities\nLitigation,  190 F. R.D.  527,  531 ( N.D.  Ill., 2000),  quoting U.S. v. Evans,  113 F. 3d 1457,  1461\n7th Cir.  1997) (\" To be privileged,  the documents must not only exhibit attorney involvement, \nbut must\n\ninvolve ' a legal adviser acting in his capacity as such.') ( Emphasis added.).  The\n\n\fMr. John O' Connor\n\nMs.  Christina McClernon\n\nMarch 31,  2016\n\nPage 4\n\nI] n light of the public policy favoring open and accessible\n\nIllinois Supreme Court has declared: \"[\ngovernment documents,  the attorney- client exemption * * * \nnarrowly.\" \nIllinois Education Ass' n v.  Illinois State Board Of Education,  204 Ill. 2d 456,  470\n2003).  A public body that withholds records under section 7( 1)( m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n\nIllinois Education Ass' n,  204 I11.  2d at 470. \n\nis to be construed and applied\n\nit conveys factual\n\nNotably,  the update on the legal matter is not marked as confidential.  Moreover, \ninformation rather than legal advice.  The Governor' s Office has not provided\n\nobjective indicia from which this office could determine that the update constitutes a privileged\n\nattorney- client communication.  Accordingly,  this office concludes that the Governor' s Office\nhas not sustained its burden of demonstrating that the update is exempt from disclosure pursuant\nto section 7( 1)( m)  of FOIA. \n\nSection 7( 1)( c)  of FOIA\n\nLastly,  the Governor' s Office withheld e- mails concerning a personal matter\npursuant\nto section 7( 1)( c)  of FOIA,  which exempts information the disclosure of which would\nconstitute an unwarranted invasion of personal privacy.  We agree that these e- mails,  which are\nunrelated to the public duties of the individual whom it concerns,  are highly personal\nin nature, \nand that the individual' s right to privacy outweighs any public interest\nin disclosure.' \nAccordingly,  we conclude that the Governor' s Office has sustained its burden of demonstrating\nthat those e- mails are exempt from disclosure pursuant to section 7( 1)( c)  of FOIA. \n\nIn accordance with the conclusions expressed in this determination,  we request\nthat the Governor' s Office furnish copies of the non- exempt records referenced herein to Mr. \nO' Connor.  Such records will be specifically identified to the Governor' s Office in an attachment\nwith this determination. \n\nSection 7( 1)( c)  defines \"[ u] nwarranted invasion of personal privacy\"  as \"\n\nthe disclosure of\n\ninformation that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest\nin obtaining the information.  The disclosure of information that bears on the\npublic duties of public employees and officials shall not be considered an invasion of personal privacy.\" \n\n\fMr. John O' Connor\n\nMs.  Christina McClernon\n\nMarch 31,  2016\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  If you have any questions,  please contact me at\n312)  814- 6756.  This letter serves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n36017 f 71f proper improper 7I m proper improper 71c proper sa\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 31, 2016\n\nVia electronic mail\n\nMr. John O' Connor (will receive letter only) \nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs. Christina McClernon\n\nAssociate General Counsel/ FOIA Officer\n\nOffice of Governor Bruce Rauner\n\n100 West Randolph, Suite 16- 100\n\nChicago, Illinois 60601\n\nChristina. mcclemon@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2015 PAC 36017\n\nDear Mr. O' Connor and Ms. McClernon: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Office of the Illinois Governor (Governor's Office) \nimproperly denied portions of Mr. John O' Connor's May 22, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a FOIA\nrequest to the Governor's Office seeking copies of all correspondence, between May 1, 2015, and\nthe date of the request, exchanged by the Governor's Office and former Illinois Department of\nCorrections Director Donald Stolworthy. On June 8, 2015, the Governor's Office provided\ncertain records but withheld others citing sections 70)(f) and 7(1)(m) of FOIA (5 ILCS\n140/ 7(1)(f), (1)(m) (West 2014)). Mr. O' Connor's Request\n\nfor Review disputes the denial of the\n\nrecords that the Governor's Office withheld. \n\nOn July 6, 2015, this office sent a copy of the Request\n\nfor Review to the\n\nGovernor's Office and requested copies of the records that were withheld for our confidential\n\nreview, together with a detailed explanation for the applicability of sections 7(1)(The Governor's Office furnished those materials on July 27, 2015, adding that some of the\nrecords are exempt from disclosure pursuant to section 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(c) \n\nf) and 7(1)(m). \n\nWest 2014)), as well. The Governor's Office also provided a confidential response in which it\n\nprovided additional\nexemptions. A copy of the non -confidential response was sent to Mr. O' Connor, who did not\n\ninformation concerning the records and the applicability of the asserted\n\nreply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). \n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(5 U. S. C. § 552(b)(5) (2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\n\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 111. App. \n3d at 248. The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection\nAgency, 371 F. 3d 370, 374 (7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional\ndocument\nCity of Chicago, 2013 IL App (1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 (2013), quoting Public\nCitizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 (D. C. Cir. 2010); see also\nChemical Weapons Working Group v. U.S. E. P.A., 185 F. R. D. 1, 3 (D. C. Cir 1999), quoting\nDudman Communications v. Department of the Air Force, 815 F. 2d 1565, 1568 (D.C. Cir. 1987) \n\nthe give and take of the deliberative process may be withheld.\" Kalven v. \n\nthat reflect\n\nT] he critical question is whether ' disclosure of the materials would expose an agency's\n\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency's ability to perform its functions.\"'). \n\nWe have reviewed the records in question, which consist in large part of inter- \n\nagency and intra -agency e- mails that express opinions and recommendations in the process of\n\nthat they were publicly cited or identified by the head of any public body. Accordingly, we\nconclude that the Governor's Office has sustained its burden of demonstrating that those records\nare exempt from disclosure pursuant to section 7(1)(f) of FOIA. Because that determination is\n\ndispositive, we decline to address the Governor's Office's assertion that those records are exempt\nfrom disclosure pursuant\n\nto section 70)(m) of FOIA. \n\nHowever, the Governor's Office also withheld several e- mails and attachments\n\nthat contain strictly factual information. These include certain facts related to upcoming\nmeetings and an update concerning a legal matter which identifies actions taken by IDOC and\nrelated statistics and other facts. The Governor's Office has not demonstrated how these records\n\nthe give and take of any deliberative process. \n\nreflect\nIn addition, the withheld records include\ndiscrete e- mails that were sent to third parties and, therefore, do not constitute inter -agency or\nintra -agency communication. Accordingly, we conclude that the Governor's Office improperly\nwithheld those records pursuant\n\nto section 7(1)(f) of FOIA. \n\nSection 7(1)(m) of FOIA\n\nBased on the confidential\n\nresponse provided to this office, it appears that the\n\nGovernor's Office also withheld the update concerning a legal matter pursuant to section\n70)(m), which exempts from disclosure: \n\nCommunications between a public body and an attorney\n\nrepresenting the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nto\n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m). People ex rel. Ulrich v. Stukel, 294 III. App. 3d 193, 201 (1st Dist. 1997). A\nparty asserting that a communication to an attorney is protected by the attorney- client privilege\nmust show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2nd\nDist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F. R. D. 323, 327 (N.D. Cal. 1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality, which is not presumed\"); In re General Instrument Corp. Securities\nLitigation, 190 F. R.D. 527, 531 (N.D. Ill., 2000), quoting U.S. v. Evans, 113 F. 3d 1457, 1461\n7th Cir. 1997) (\" To be privileged, the documents must not only exhibit attorney involvement, \n\nI] n light of the public policy favoring open and accessible\n\nIllinois Supreme Court has declared: \"[\ngovernment documents, the attorney- client exemption * * * \nnarrowly.\" \nIllinois Education Ass' n v. Illinois State Board Of Education, 204 Ill. 2d 456, 470\n2003). A public body that withholds records under section 7(1)(m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n\nIllinois Education Ass' n, 204 I11. 2d at 470. \n\nis to be construed and applied\n\nit conveys factual\n\nNotably, the update on the legal matter is not marked as confidential. Moreover, \ninformation rather than legal advice. The Governor's Office has not provided\n\nobjective indicia from which this office could determine that the update constitutes a privileged\n\nattorney- client communication. Accordingly, this office concludes that the Governor's Office\nhas not sustained its burden of demonstrating that the update is exempt from disclosure pursuant\nto section 7(1)(m) of FOIA. \n\nSection 7(1)(c) of FOIA\n\nLastly, the Governor's Office withheld e- mails concerning a personal matter\npursuant\nto section 7(1)(c) of FOIA, which exempts information the disclosure of which would\nconstitute an unwarranted invasion of personal privacy. We agree that these e- mails, which are\nunrelated to the public duties of the individual whom it concerns, are highly personal\nin nature, \nand that the individual's right to privacy outweighs any public interest\nin disclosure.' \nAccordingly, we conclude that the Governor's Office has sustained its burden of demonstrating\nthat those e- mails are exempt from disclosure pursuant to section 7(1)(c) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, we request\nthat the Governor's Office furnish copies of the non- exempt records referenced herein to Mr. \nO' Connor. Such records will be specifically identified to the Governor's Office in an attachment\nwith this determination. \n\nSection 7(1)(c) defines \"[ u] nwarranted invasion of personal privacy\" as \"\n\nthe disclosure of\n\ninformation that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest\nin obtaining the information. The disclosure of information that bears on the\npublic duties of public employees and officials shall not be considered an invasion of personal privacy.\" \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This letter serves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n36017 f 71f proper improper 7I m proper improper 71c proper sa","plain_summary_pre_resummarize":"A reporter requested emails and letters between the Governor's office and a former state official. The Governor's office refused to release some of these documents, claiming exemptions under FOIA sections 7(1)(f) (preliminary drafts/deliberative process), 7(1)(m) (attorney-client privilege), and 7(1)(c) (personal privacy). The Attorney General's office reviewed the documents and concluded that the Governor's office properly withheld some records under sections 7(1)(f) and 7(1)(c), but improperly withheld certain factual records and an update under sections 7(1)(f) and 7(1)(m). It requested the Governor's office furnish copies of the non-exempt records to the requester.","card_headline":"Correspondence between a governor's office and a former agency director","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-36017/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nMarch 31, 2016\n\nVia electronic mail\nMr. John O'Connor (will receive letter only)\nThe Associated Press\nStatehouse Pressroom\nSpringfield, Illinois 62706\njoconnor@ap.org\n\nVia electronic mail\nMs. Christina McClernon\nAssociate General Counsel/FOIA Officer\nOffice of Governor Bruce Rauner\n100 West Randolph, Suite 16-100\nChicago, Illinois 60601\nChristina.mcclernon@illinois.gov\n\nRE: FOIA Request for Review – 2015 PAC 36017\n\nDear Mr. O'Connor and Ms. McClernon:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons stated below, the Public Access Bureau concludes that the Office of the Illinois Governor (Governor's Office) improperly denied portions of Mr. John O'Connor's May 22, 2015, FOIA request.\n\nOn that date, Mr. O'Connor, on behalf of the Associated Press, submitted a FOIA request to the Governor's Office seeking copies of all correspondence, between May 1, 2015, and the date of the request, exchanged by the Governor's Office and former Illinois Department of Corrections Director Donald Stolworthy. On June 8, 2015, the Governor's Office provided certain records but withheld others citing sections 7(1)(f) and 7(1)(m) of FOIA (5 ILCS 140/7(1)(f), (1)(m) (West 2014)). Mr. O'Connor's Request for Review disputes the denial of the records that the Governor's Office withheld.\n\nOn July 6, 2015, this office sent a copy of the Request for Review to the\n\nGovernor's Office and requested copies of the records that were withheld for our confidential review, together with a detailed explanation for the applicability of sections 7(1)(f) and 7(1)(m). The Governor's Office furnished those materials on July 27, 2015, adding that some of the records are exempt from disclosure pursuant to section 7(1)(c) of FOIA (5 ILCS 140/7(1)(c) (West 2014)), as well. The Governor's Office also provided a confidential response in which it provided additional information concerning the records and the applicability of the asserted exemptions. A copy of the non-confidential response was sent to Mr. O'Connor, who did not reply.\n\nDETERMINATION\n\nAll 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 2014). 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 2014).\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" The section 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA (5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption is \"intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. The deliberative process exemption \"typically does not justify the withholding of purely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection Agency, 371 F.3d 370, 374 (7th Cir. 2004). Rather, \"[o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App (1st) 121846, ¶24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010); see also Chemical Weapons Working Group v. U.S. E.P.A., 185 F.R.D. 1, 3 (D.C. Cir 1999), quoting Dudman Communications v. Department of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987) (\"[T]he critical question is whether 'disclosure of the materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.'\").\n\nWe have reviewed the records in question, which consist in large part of inter-agency and intra-agency e-mails that express opinions and recommendations in the process of formulating various actions. Such records are pre-decisional in nature, and there is no indication\n\nthat they were publicly cited or identified by the head of any public body. Accordingly, we conclude that the Governor's Office has sustained its burden of demonstrating that those records are exempt from disclosure pursuant to section 7(1)(f) of FOIA. Because that determination is dispositive, we decline to address the Governor's Office's assertion that those records are exempt from disclosure pursuant to section 7(1)(m) of FOIA.\n\nHowever, the Governor's Office also withheld several e-mails and attachments that contain strictly factual information. These include certain facts related to upcoming meetings and an update concerning a legal matter which identifies actions taken by IDOC and related statistics and other facts. The Governor's Office has not demonstrated how these records reflect the give and take of any deliberative process. In addition, the withheld records include discrete e-mails that were sent to third parties and, therefore, do not constitute inter-agency or intra-agency communication. Accordingly, we conclude that the Governor's Office improperly withheld those records pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\n\nBased on the confidential response provided to this office, it appears that the Governor's Office also withheld the update concerning a legal matter pursuant to section 7(1)(m), which exempts from disclosure:\n\nCommunications between a public body and an attorney\n* * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]\n\nCommunications protected by the attorney-client privilege are within the scope of section 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1st Dist. 1997). A party asserting that a communication to an attorney is protected by the attorney-client privilege must show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2nd Dist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 327 (N.D. Cal. 1985) (\"The proponent of the privilege carries the burden of establishing all elements of the privilege, including confidentiality, which is not presumed\"); In re General Instrument Corp. Securities Litigation, 190 F.R.D. 527, 531 (N.D. Ill., 2000), quoting U.S. v. Evans, 113 F.3d 1457, 1461 (7th Cir. 1997) (\"To be privileged, the documents must not only exhibit attorney involvement, but must involve 'a legal adviser acting in his capacity as such.'\") (Emphasis added.). The\n\nIllinois Supreme Court has declared: \"[I]n light of the public policy favoring open and accessible government documents, the attorney-client exemption * * * is to be construed and applied narrowly.\" Illinois Education Ass'n v. Illinois State Board Of Education, 204 Ill. 2d 456, 470 (2003). A public body that withholds records under section 7(1)(m) \"can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances.\" (Emphasis in original.) Illinois Education Ass'n, 204 Ill. 2d at 470.\n\nNotably, the update on the legal matter is not marked as confidential. Moreover, it conveys factual information rather than legal advice. The Governor's Office has not provided objective indicia from which this office could determine that the update constitutes a privileged attorney-client communication. Accordingly, this office concludes that the Governor's Office has not sustained its burden of demonstrating that the update is exempt from disclosure pursuant to section 7(1)(m) of FOIA.\n\nSection 7(1)(c) of FOIA\n\nLastly, the Governor's Office withheld e-mails concerning a personal matter pursuant to section 7(1)(c) of FOIA, which exempts information the disclosure of which would constitute an unwarranted invasion of personal privacy. We agree that these e-mails, which are unrelated to the public duties of the individual whom it concerns, are highly personal in nature, and that the individual's right to privacy outweighs any public interest in disclosure.¹ Accordingly, we conclude that the Governor's Office has sustained its burden of demonstrating that those e-mails are exempt from disclosure pursuant to section 7(1)(c) of FOIA.\n\nIn accordance with the conclusions expressed in this determination, we request that the Governor's Office furnish copies of the non-exempt records referenced herein to Mr. O'Connor. Such records will be specifically identified to the Governor's Office in an attachment with this determination.\n\n¹Section 7(1)(c) defines \"[u]nwarranted invasion of personal privacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\"\n\nThe Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to close this file.\n\nVery truly yours,\n\n[REDACTED]\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n36017 f 71f proper improper 71m proper improper 71c proper sa"}
{"id":859,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-07-30","case_number":null,"request_numbers":["36229"],"title":"PAC cannot review University of Illinois FOIA denial for commercial purpose","filename":"36229, issued July 30, 2015.pdf","rel_path":null,"word_count":667,"summary":"The requester sought training materials from the University of Illinois, but the PAC determined it lacked jurisdiction to review the denial because the request was made for a commercial purpose.","plain_summary":"A requester asked the University of Illinois for training materials to help his company win a government contract. The Attorney General's office decided it could not help him challenge the University's refusal to provide the records because the law prohibits the PAC from reviewing requests made for commercial purposes. The requester must now file a lawsuit in court if he wishes to pursue the records further.","holding":"The PAC cannot review the denial of a FOIA request when the requester is seeking records for a commercial purpose.","legal_question":"Does the Public Access Counselor have the authority to review a FOIA denial when the underlying request was submitted for a commercial purpose?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/9.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(j)(iv)","7(1)(q)"],"public_body":"University of Illinois","requesting_party":"Mr. Tom Ripperda","pac_outcome":"Closed due to commercial purpose","pac_law_type":null,"subject_category":"commercial purpose","subject_description":"The requester sought training materials developed by the University for the Illinois Health Insurance Marketplace to assist in a competitive bidding process.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-10/36229%2C%20issued%20July%2030%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["commercial purpose","PAC jurisdiction","FOIA denial","University of Illinois"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 30, 2015\n\nVia electronic mail\n\nMr. Tom Ripperda\n\nEducational Concepts Unlimited, Inc.\n3301 West Main Street\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review ~ 2015 PAC 36229\nDear Mr. Ripperda:\n\nThe Public Access Bureau received your Request for Review, pursuant to section\n9.5(a) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(c) (West 2014)) concerning a\nFOIA request that you submitted to the University of Illinois (University). For the reasons that\nfollow, the Request for Review process is not available in this instance because you requested\nrecords for a commercial purpose.\n\nOn May 4, 2015, you submitted a FOIA request to the University, which was\nsubsequently narrowed on June 3, 2015, seeking, among other things, copies of a PowerPoint\npresentation and handouts that the University developed pursuant to a contract with the Illinois\nHealth Insurance Marketplace to provide training to assistors and navigators under the Patient\nProtection and Affordable Care Act (42 U.S.C. § 18001 ef seq. (2010)); see also 45 C.F.R. §\n155.205(d) (2015)). On July 2, 2015, the University denied your request for the PowerPoint\npresentation and handouts asserting that those records are exempt from disclosure pursuant to\nsections 7(1)(j)(iv) and 7(1)(q) of FOIA (5 ILCS 140/7(1)()(iv), 711 (q) (West 2014)). On July\n9, 2015, this office received your Request for Review contesting the University's denial.\n\nSection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)) allows a person whose\nFOIA request is denied to seek review of that denial with the Public Access Counselor.\nHowever, section 9.5(b) of FOIA (5 ILCS 140/9.5(b) (West 2014)) creates an exception by\nproviding that a \"person whose request to inspect or copy a public record is made for a\ncommercial purpose as defined in subsection (c-10) of Section 2 of this Act may not file a\nrequest for review with the Public Access Counselor.\" Section 2(c-10) of FOIA (5 ILCS\n140/2(c-10) (West 2014)) defines \"commercial purpose\" as the \"use of any part of a public\n\n500 South Second Street, Springfield, Minois 62706 * (217) 782-1090 + TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 + TTY: (618) 529-6403 + Fax: (618) 529-6416\n\nMr. Tom Ripperda\nJuly 30, 2015\nPage 2\n\nrecord or records, or information derived from public records, in any form for sale, resale, or\nsolicitation or advertisement for sales or services.\" (Emphasis added.) Under section 9.5(b) of\nFOIA, the Public Access Counselor's review process is not available to a person whose request\nwas made for a commercial purpose.\n\nYour FOIA request was not identified on its face as being for a commercial\npurpose. However, your Request for Review clarifies that you are seeking the information in\nquestion for the purpose of placing a bid with the Illinois Department of Health so that your\ncompany can be the lowest bidder and enter into a contract to provide the training to assistors\nand navigators. In other words, you seek to use the information requested from the University to\nsolicit the sale of your training services, which constitutes a \"commercial purpose\" under FOIA.\nBecause you are seeking the PowerPoint presentations and handouts from the University for a\ncommercial purpose, section 9.5(b) of FOIA precludes the Public Access Counselor from\nreviewing this matter. Please note that you have the option of filing suit for injunctive or\ndeclaratory relief pursuant to section 11 of FOIA (5 ILCS 140/11 (West 2014)).\n\nIf you have any questions or would like to discuss this matter, please contact me\nat (312) 814-5201. This letter closes this matter.\n\nVery truly yours,\n\nEDIE STEINBERG\nAssistant Attorney General\nPublic Access Bureau\n\n36229 f no fi war univ\n\nCe: Via electronic mail\nMr. Thomas P. Hardy\nExecutive Director and Chief Records Officer\nUniversity of Illinois\n414 Administrative Office Building\n1737 West Polk Street, MC-971\nChicago, Illinois 60612\nfoia@uillinois.edu\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Training materials for the Illinois Health Insurance Marketplace","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-36229/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 30, 2015\n\nVia electronic mail\n\nMr. Tom Ripperda\n\nEducational Concepts Unlimited, Inc.\n3301 West Main Street\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review ~ 2015 PAC 36229\nDear Mr. Ripperda:\n\nThe Public Access Bureau received your Request for Review, pursuant to section\n9.5(a) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(c) (West 2014)) concerning a\nFOIA request that you submitted to the University of Illinois (University). For the reasons that\nfollow, the Request for Review process is not available in this instance because you requested\nrecords for a commercial purpose.\n\nOn May 4, 2015, you submitted a FOIA request to the University, which was\nsubsequently narrowed on June 3, 2015, seeking, among other things, copies of a PowerPoint\npresentation and handouts that the University developed pursuant to a contract with the Illinois\nHealth Insurance Marketplace to provide training to assistors and navigators under the Patient\nProtection and Affordable Care Act (42 U.S.C. § 18001 ef seq. (2010)); see also 45 C.F.R. §\n155.205(d) (2015)). On July 2, 2015, the University denied your request for the PowerPoint\npresentation and handouts asserting that those records are exempt from disclosure pursuant to\nsections 7(1)(j)(iv) and 7(1)(q) of FOIA (5 ILCS 140/7(1)()(iv), 711 (q) (West 2014)). On July\n9, 2015, this office received your Request for Review contesting the University's denial.\n\nSection 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2014)) allows a person whose\nFOIA request is denied to seek review of that denial with the Public Access Counselor.\n\nrecord or records, or information derived from public records, in any form for sale, resale, or\nsolicitation or advertisement for sales or services.\" (Emphasis added.) Under section 9.5(b) of\nFOIA, the Public Access Counselor's review process is not available to a person whose request\nwas made for a commercial purpose.\n\nYour FOIA request was not identified on its face as being for a commercial\npurpose. However, your Request for Review clarifies that you are seeking the information in\nquestion for the purpose of placing a bid with the Illinois Department of Health so that your\ncompany can be the lowest bidder and enter into a contract to provide the training to assistors\nand navigators. In other words, you seek to use the information requested from the University to\nsolicit the sale of your training services, which constitutes a \"commercial purpose\" under FOIA.\nBecause you are seeking the PowerPoint presentations and handouts from the University for a\ncommercial purpose, section 9.5(b) of FOIA precludes the Public Access Counselor from\nreviewing this matter. Please note that you have the option of filing suit for injunctive or\ndeclaratory relief pursuant to section 11 of FOIA (5 ILCS 140/11 (West 2014)).\n\nIf you have any questions or would like to discuss this matter, please contact me\nat (312) 814-5201. This letter closes this matter.\n\nVery truly yours,\n\nEDIE STEINBERG\nAssistant Attorney General\nPublic Access Bureau\n\n36229 f no fi war univ\n\nCe: Via electronic mail\nMr. Thomas P. Hardy\nExecutive Director and Chief Records Officer\nUniversity of Illinois\n414 Administrative Office Building\n1737 West Polk Street, MC-971\nChicago, Illinois 60612\nfoia@uillinois.edu"}
{"id":861,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-11-23","case_number":null,"request_numbers":["36450"],"title":"Lake County State's Attorney's Office improperly withheld emails under 7(1)(f) and 7(1)(m)","filename":"36450, issued November 23, 2015.pdf","rel_path":null,"word_count":1303,"summary":"The requester sought correspondence between two individuals regarding an investigation into a school district's financial management, which the Lake County State's Attorney's Office withheld under FOIA exemptions 7(1)(f) and 7(1)(m). The PAC determined that the withheld emails did not qualify as exempt work product or preliminary drafts and ordered their disclosure.","plain_summary":"The requester sought e-mails between a state's attorney's office investigator and a school district official concerning an investigation into the district's finances, which the office withheld as deliberative material and attorney work product. The PAC determined the e-mails merely requested and furnished factual information and did not reflect any deliberative process, legal theories, or litigation strategy, so neither exemption applied. The state's attorney's office was directed to provide the e-mails to the requester.","holding":"The Lake County State's Attorney's Office improperly withheld the requested emails because it did not sustain its burden of proving they were exempt under sections 7(1)(f) or 7(1)(m) of FOIA.","legal_question":"Whether emails between government officials regarding an investigation qualify for the preliminary draft exemption (7(1)(f)) or the attorney work product exemption (7(1)(m)) under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(f)","5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)"],"public_body":"Lake County State's Attorney's Office","requesting_party":"Requester (name redacted in source document)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"investigative records","subject_description":"Correspondence regarding an investigation into the financial management of Township School District 113.","ocr_status":"llm_reocr","ocr_quality":86.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-for-purely-factual-material/36450%2C%20issued%20November%2023%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","work product","email disclosure","investigative records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"_ OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 23, 2015\n\nMs. Beth Prager\n\nAssistant State's Attorney\n\nLake County State's Attorney's Office\nLake County Building\n\n18 North County Street\n\nWaukegan, Illinois 60085\n\nRE: FOIA Request for Review — 2015 PAC 36450\n\nDearMMJand Ms. Prager:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons below, the Public\nAccess Bureau concludes that the Lake County State's Attorney's Office (State's Attorney's\n\nOffice) improperly denied ED unc 29, 2015, FOIA request.\n\nOn that date, submitted a FOIA request to the State's Attorney's Office\nseeking copies of all correspondence between Mr. Marc Hansen and Mr. Barry Bolek from 2009\nto the date of the request pertaining to any formal or informal investigation into the financial\nmanagement of Township School District 113 (School District). On July 6, 2015, the State's\nAttorney's Office provided certain records but withheld other records citing sections 7(1)(f) and\n7(1)(m) of FOIA (5 ILCS 140/7(1)¢f), (1)(m) (West 2014)). In her Request for Review, ||\nMB complained that the State's Attorney's Office did not disclose e-mails between Mr. Bolek\n\nand Mr. Hansen.\n\nOn July 31, 2015, this office sent a copy of the Request for Review to the State's\nAttorney's Office and asked it to furnish for our confidential review copies of any e-mails\nbetween Mr. Hansen and Mr. Bolek that were withheld together with a detailed explanation for\nthe applicability of the section 7(1)( and 7(1)(m) exemptions. The State's Attorney provided\n\n500 South Second Street, Springfield, Mlinois 62706 + (217) 782-1090 + TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 » TTY: (618) 529-6403 » Fax: (618) 529-6416\n\nMs. Beth Prager\nNovember 23, 2015\nPage 2\n\nthose materials on August 6, 2015. In her reply, asserted that neither exemption\napplies to the requested e-mails.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.” 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n\n140/1.2 (West 2014).\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n(5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is “intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App.\n\n3d at 248.\n\nThe records in question were exchanged by Mr. Bolek, the District's Assistant\nSuperintendent for Finance, and Mr. Hansen, an investigator for the State's Attorney's Office. As\nstated in J FOIA request, the records in question pertain to an investigation of the\nfinancial management of the School District. The State's Attorney's Office characterized the\nrecords as containing \"questions and comments revealing the theories and thought processes\nrelating to a potential criminal prosecution.\"! In support of its assertion that the e-mails fall\nwithin the scope of section 7(1)(f), the State's Attorney's Office cited Harwood, 344 Ill. App. 3d\nat 248 (report prepared for a public body by a consultant with no independent interests was\nproperly withheld under section 7(1)(f)) and The State Journal-Register v. University of Illinois-\nSpringfield, 2013 IL App (4th) 120881, {J 26-28, 994 N.E.2d 705, 713-14 (2013) (e-mail strings\ncontaining staff opinions and general information concerning the University's investigative\nprocess and scheduling of meetings were properly withheld under section 7(1)(£)).\n\nThose cases are inapposite. The e-mails at issue in this matter are not a public\n\n‘Letter from Beth Prager, Assistant State's Attorney, Lake County State's Attorney's Office, to\nSteve Silverman, Assistant Attorney General (August 6, 2015).\n\nPC\nMs. Beth Prager\nNovember 23, 2015\nPage 3\n\nbody's internal communications such as those analyzed by the court in the cited portions of State\nJournal-Register, nor are they communications between a public body and its paid consultant, as\nin Harwood. Rather, the e-mails were exchanged by an investigator for the State's Attorney's\nOffice and a School District official during the State's Attorney's Office's investigation into the\nDistrict's finances. Further, based on our confidential review of the e-mails, they consist of\nexchanges in which factual information is requested and furnished. Although this factual\ninformation may have been used by the State's Attorney's Office in its subsequent deliberations\nabout whether to file criminal charges, the e-mails do not constitute predecisional and\ndeliberative material or reveal the nature of any deliberations. The Illinois Appellate Court has\nheld that it \"is well settled that ‘{o}nly those portions of a predecisional document that reflect the\ngive and take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL\nApp (ist) 121846, §24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C.Cir.2010); see also Judicial Watch, Inc. v.\nDep't of Energy, 412 F.3d 125, 131 (D.C. Cir. 2005) (\"the deliberative process privilege does not\nprotect purely factual material contained in privileged documents if the disclosure of such\ninformation would not reveal the nature of the deliberations.\"). Accordingly, we conclude that\nthe State's Attorney's Office has not sustained its burden of demonstrating that the e-mails are\nexempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\nSection 7(1)(m) of FOIA exempts from disclosure:\n\nCommunications between a public body and an attorney\n+ * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[-]\n\nCiting Illinois Supreme Court Rule 412(j)(),” The State's Attorney's Office asserts\nthat section 7(1)(m) exempts the withheld e-mails from disclosure pursuant to the \"work\nproduct\" doctrine. The parameters of \"work product\" are set out in Illinois Supreme Court Rule\n201(b)(2), which provides that material prepared \"by or for a party in preparation for trial is\nsubject to discovery only if it does not contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney.\" Attorney work product is limited to records that \"reveal\nthe shaping process by which the attorney has arranged the available evidence” for trial. Monier\nv. Chamberlain, 35 Ill. 2d 351, 359-60 (1966). In contrast, the e-mails at issue in this matter do\n\n2The Rule provides \"Disclosure under this rule and Rule 413 shall not be required of legal\nresearch or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories\nor conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.\"\n\n\na\nMs. Beth Prager\nNovember 23, 2015\nPage 4\n\nnot contain any findings or recommendations related to legal advice, much less theories, mental\nimpressions, or litigation plans. The e-mails merely request and furnish factual information.\nBecause these e-mails do not reveal any theories, mental impressions, or litigation plans, they are\nnot “work product.” Accordingly, we conclude that the State's Attorney's Office has not\nsustained its burden of demonstrating that the e-mails are exempt from disclosure pursuant to\n\nsection 7(1)(m) of FOIA.\n\nIn accordance with the conclusions expressed in this determination, we request\nthat the State's Attorney's Office provide copies of the e-mails to The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to\n\nclose this file.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n36450 £ 71f improper 71m improper sao\n\n\n","full_text_pre_reocr":"_ OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 23, 2015\n\nMs. Beth Prager\n\nAssistant State's Attorney\n\nLake County State's Attorney's Office\nLake County Building\n\n18 North County Street\n\nWaukegan, Illinois 60085\n\nRE: FOIA Request for Review — 2015 PAC 36450\n\nDearMMJand Ms. Prager:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons below, the Public\nAccess Bureau concludes that the Lake County State's Attorney's Office (State's Attorney's\n\nOffice) improperly denied ED unc 29, 2015, FOIA request.\n\nOn that date, submitted a FOIA request to the State's Attorney's Office\nseeking copies of all correspondence between Mr. Marc Hansen and Mr. Barry Bolek from 2009\nto the date of the request pertaining to any formal or informal investigation into the financial\nmanagement of Township School District 113 (School District). On July 6, 2015, the State's\nAttorney's Office provided certain records but withheld other records citing sections 7(1)(f) and\n7(1)(m) of FOIA (5 ILCS 140/7(1)¢f), (1)(m) (West 2014)). In her Request for Review, ||\nMB complained that the State's Attorney's Office did not disclose e-mails between Mr. Bolek\n\nand Mr. Hansen.\n\nOn July 31, 2015, this office sent a copy of the Request for Review to the State's\nAttorney's Office and asked it to furnish for our confidential review copies of any e-mails\nbetween Mr. Hansen and Mr. Bolek that were withheld together with a detailed explanation for\nthe applicability of the section 7(1)(and 7(1)(m) exemptions. The State's Attorney provided\n\nthose materials on August 6, 2015. In her reply, asserted that neither exemption\napplies to the requested e-mails.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.” 5 ILCS 140/1.2 (West 2014). A public body \"has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n\n140/1.2 (West 2014).\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n(5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is “intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App.\n\n3d at 248.\n\nThe records in question were exchanged by Mr. Bolek, the District's Assistant\nSuperintendent for Finance, and Mr. Hansen, an investigator for the State's Attorney's Office. As\nstated in J FOIA request, the records in question pertain to an investigation of the\nfinancial management of the School District. The State's Attorney's Office characterized the\nrecords as containing \"questions and comments revealing the theories and thought processes\nrelating to a potential criminal prosecution.\"! In support of its assertion that the e-mails fall\nwithin the scope of section 7(1)(f), the State's Attorney's Office cited Harwood, 344 Ill. App. 3d\nat 248 (report prepared for a public body by a consultant with no independent interests was\nproperly withheld under section 7(1)(f)) and The State Journal-Register v. University of Illinois-\nSpringfield, 2013 IL App (4th) 120881, {J 26-28, 994 N.E.2d 705, 713-14 (2013) (e-mail strings\ncontaining staff opinions and general information concerning the University's investigative\nprocess and scheduling of meetings were properly withheld under section 7(1)(£)).\n\nThose cases are inapposite. The e-mails at issue in this matter are not a public\n\n‘Letter from Beth Prager, Assistant State's Attorney, Lake County State's Attorney's Office, to\n\nbody's internal communications such as those analyzed by the court in the cited portions of State\nJournal-Register, nor are they communications between a public body and its paid consultant, as\nin Harwood. Rather, the e-mails were exchanged by an investigator for the State's Attorney's\nOffice and a School District official during the State's Attorney's Office's investigation into the\nDistrict's finances. Further, based on our confidential review of the e-mails, they consist of\nexchanges in which factual information is requested and furnished. Although this factual\ninformation may have been used by the State's Attorney's Office in its subsequent deliberations\nabout whether to file criminal charges, the e-mails do not constitute predecisional and\ndeliberative material or reveal the nature of any deliberations. The Illinois Appellate Court has\nheld that it \"is well settled that ‘{o}nly those portions of a predecisional document that reflect the\ngive and take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL\nApp (ist) 121846, §24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C.Cir.2010); see also Judicial Watch, Inc. v.\nDep't of Energy, 412 F.3d 125, 131 (D.C. Cir. 2005) (\"the deliberative process privilege does not\nprotect purely factual material contained in privileged documents if the disclosure of such\ninformation would not reveal the nature of the deliberations.\"). Accordingly, we conclude that\nthe State's Attorney's Office has not sustained its burden of demonstrating that the e-mails are\nexempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\nSection 7(1)(m) of FOIA exempts from disclosure:\n\nCommunications between a public body and an attorney\n+ * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[-]\n\nCiting Illinois Supreme Court Rule 412(j)(),” The State's Attorney's Office asserts\nthat section 7(1)(m) exempts the withheld e-mails from disclosure pursuant to the \"work\nproduct\" doctrine. The parameters of \"work product\" are set out in Illinois Supreme Court Rule\n201(b)(2), which provides that material prepared \"by or for a party in preparation for trial is\nsubject to discovery only if it does not contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney.\" Attorney work product is limited to records that \"reveal\nthe shaping process by which the attorney has arranged the available evidence” for trial. Monier\nv. Chamberlain, 35 Ill. 2d 351, 359-60 (1966). In contrast, the e-mails at issue in this matter do\n\n2The Rule provides \"Disclosure under this rule and Rule 413 shall not be required of legal\nresearch or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories\nor conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.\"\n\nnot contain any findings or recommendations related to legal advice, much less theories, mental\nimpressions, or litigation plans. The e-mails merely request and furnish factual information.\nBecause these e-mails do not reveal any theories, mental impressions, or litigation plans, they are\nnot “work product.” Accordingly, we conclude that the State's Attorney's Office has not\nsustained its burden of demonstrating that the e-mails are exempt from disclosure pursuant to\n\nsection 7(1)(m) of FOIA.\n\nIn accordance with the conclusions expressed in this determination, we request\nthat the State's Attorney's Office provide copies of the e-mails to The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to\n\nclose this file.\n\nVery truly yours,\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n36450 £ 71f improper 71m improper sao","plain_summary_pre_resummarize":"A requester asked the Lake County State's Attorney's Office for emails between a school district official and an investigator about a school district's finances. The office refused to release them, citing exemptions for preliminary drafts and attorney work product. The Illinois Attorney General's Public Access Bureau reviewed the emails and concluded that the office had not proven the exemptions applied, because the emails were factual exchanges, not deliberative or legal strategy material. The Bureau requested that the office provide the emails to the requester.","card_headline":"Emails about an investigation into a school district's finances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-36450/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nNovember 23, 2015\n\n[REDACTED]\n\nMs. Beth Prager\nAssistant State's Attorney\nLake County State's Attorney's Office\nLake County Building\n18 North County Street\nWaukegan, Illinois 60085\n\nRE: FOIA Request for Review – 2015 PAC 36450\n\nDear [REDACTED] and Ms. Prager:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons below, the Public Access Bureau concludes that the Lake County State's Attorney's Office (State's Attorney's Office) improperly denied [REDACTED] June 29, 2015, FOIA request.\n\nOn that date, [REDACTED] submitted a FOIA request to the State's Attorney's Office seeking copies of all correspondence between Mr. Marc Hansen and Mr. Barry Bolek from 2009 to the date of the request pertaining to any formal or informal investigation into the financial management of Township School District 113 (School District). On July 6, 2015, the State's Attorney's Office provided certain records but withheld other records citing sections 7(1)(f) and 7(1)(m) of FOIA (5 ILCS 140/7(1)(f), (1)(m) (West 2014)). In her Request for Review, [REDACTED] complained that the State's Attorney's Office did not disclose e-mails between Mr. Bolek and Mr. Hansen.\n\nOn July 31, 2015, this office sent a copy of the Request for Review to the State's Attorney's Office and asked it to furnish for our confidential review copies of any e-mails between Mr. Hansen and Mr. Bolek that were withheld together with a detailed explanation for the applicability of the section 7(1)(f) and 7(1)(m) exemptions. The State's Attorney provided\n\nthose materials on August 6, 2015. In her reply, [REDACTED] asserted that neither exemption applies to the requested e-mails.\n\nDETERMINATION\n\nAll 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 2014). 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 2014).\n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" The section 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA (5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption is \"intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248.\n\nThe records in question were exchanged by Mr. Bolek, the District's Assistant Superintendent for Finance, and Mr. Hansen, an investigator for the State's Attorney's Office. As stated in [REDACTED] FOIA request, the records in question pertain to an investigation of the financial management of the School District. The State's Attorney's Office characterized the records as containing \"questions and comments revealing the theories and thought processes relating to a potential criminal prosecution.\"¹ In support of its assertion that the e-mails fall within the scope of section 7(1)(f), the State's Attorney's Office cited Harwood, 344 Ill. App. 3d at 248 (report prepared for a public body by a consultant with no independent interests was properly withheld under section 7(1)(f)) and The State Journal-Register v. University of Illinois-Springfield, 2013 IL App (4th) 120881, ¶¶ 26-28, 994 N.E.2d 705, 713-14 (2013) (e-mail strings containing staff opinions and general information concerning the University's investigative process and scheduling of meetings were properly withheld under section 7(1)(f)).\n\nThose cases are inapposite. The e-mails at issue in this matter are not a public\n\n¹Letter from Beth Prager, Assistant State's Attorney, Lake County State's Attorney's Office, to Steve Silverman, Assistant Attorney General (August 6, 2015).\n\nbody's internal communications such as those analyzed by the court in the cited portions of State Journal-Register, nor are they communications between a public body and its paid consultant, as in Harwood. Rather, the e-mails were exchanged by an investigator for the State's Attorney's Office and a School District official during the State's Attorney's Office's investigation into the District's finances. Further, based on our confidential review of the e-mails, they consist of exchanges in which factual information is requested and furnished. Although this factual information may have been used by the State's Attorney's Office in its subsequent deliberations about whether to file criminal charges, the e-mails do not constitute predecisional and deliberative material or reveal the nature of any deliberations. The Illinois Appellate Court has held that it \"is well settled that '[o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.'\" Kalven v. City of Chicago, 2013 IL App (1st) 121846, ¶24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C.Cir.2010); see also Judicial Watch, Inc. v. Dep't of Energy, 412 F.3d 125, 131 (D.C. Cir. 2005) (\"the deliberative process privilege does not protect purely factual material contained in privileged documents if the disclosure of such information would not reveal the nature of the deliberations.\"). Accordingly, we conclude that the State's Attorney's Office has not sustained its burden of demonstrating that the e-mails are exempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure:\n\nCommunications between a public body and an attorney\n* * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]\n\nCiting Illinois Supreme Court Rule 412(j)(i),² The State's Attorney's Office asserts that section 7(1)(m) exempts the withheld e-mails from disclosure pursuant to the \"work product\" doctrine. The parameters of \"work product\" are set out in Illinois Supreme Court Rule 201(b)(2), which provides that material prepared \"by or for a party in preparation for trial is subject to discovery only if it does not contain or disclose the theories, mental impressions, or litigation plans of the party's attorney.\" Attorney work product is limited to records that \"reveal the shaping process by which the attorney has arranged the available evidence\" for trial. Monier v. Chamberlain, 35 Ill. 2d 351, 359-60 (1966). In contrast, the e-mails at issue in this matter do\n\n²The Rule provides \"Disclosure under this rule and Rule 413 shall not be required of legal research or of records, correspondence, reports or memoranda to the extent that they contain the opinions, theories or conclusions of the State or members of its legal or investigative staffs, or of defense counsel or his staff.\"\n\nnot contain any findings or recommendations related to legal advice, much less theories, mental impressions, or litigation plans. The e-mails merely request and furnish factual information. Because these e-mails do not reveal any theories, mental impressions, or litigation plans, they are not \"work product.\" Accordingly, we conclude that the State's Attorney's Office has not sustained its burden of demonstrating that the e-mails are exempt from disclosure pursuant to section 7(1)(m) of FOIA.\n\nIn accordance with the conclusions expressed in this determination, we request that the State's Attorney's Office provide copies of the e-mails to [REDACTED] The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to close this file.\n\nVery truly yours,\n\n[REDACTED]\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n36450 f 71f improper 71m improper sao"}
{"id":862,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-09-25","case_number":null,"request_numbers":["36740"],"title":"City of Monticello properly withheld preliminary drafts under section 7(1)(f)","filename":"36740, issued September 25, 2015.pdf","rel_path":null,"word_count":1383,"summary":"A requester challenged the City of Monticello's denial of waste water treatment plant specifications, arguing the records had been publicly cited by the Mayor. The PAC determined that the evidence did not support the claim that the records were publicly cited, and thus the City's denial was proper.","plain_summary":"This determination addressed whether the City of Monticello properly withheld wastewater treatment plant design specifications under FOIA's preliminary-drafts exemption, 5 ILCS 140/7(1)(f). The Public Access Bureau held that the City did not improperly withhold the records because they were preliminary, deliberative materials prepared by the City's engineering consultant and had not yet been presented to or reviewed by the City Council. The Bureau reasoned that section 7(1)(f) covers intra-agency deliberative material, including consultant work product where the consultant represents the public body's interests, and that the exception for records 'publicly cited and identified by the head of the public body' did not apply because the discussion at the relevant council meeting was led by the City superintendent and the consultant, not the Mayor (the head of the public body). The City of Monticello was the public body involved, and the records at issue were consultant-prepared plans and specifications for a wastewater treatment plant.","holding":"Records reflecting a public body's deliberative process with a consulting engineer are exempt under 5 ILCS 140/7(1)(f) unless publicly cited and identified specifically by the head of the public body, not merely discussed by staff or consultants at a public meeting.","legal_question":"Whether the City of Monticello improperly withheld records under the preliminary draft exemption (section 7(1)(f)) after the requester alleged the records had been publicly cited by the head of the public body.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"City of Monticello","requesting_party":"Terry Summers","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned technical specifications and plans for a proposed waste water treatment plant.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-when-cited-and-identified-by-head-of-public-body/36740%2C%20issued%20September%2025%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","engineering plans","public records","FOIA denial"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nSeptember 25, 2015\n\nVia electronic mail\n\nMr. Floyd L. Allsop\nFOIA Officer\n\nCity of Monticello\n\n210 North Hamilton\nMonticello, Illinois 61856\nfoia@cityofmonticello.net\n\nRE: FOIA Request for Review — 2015 PAC 36740\n\nDeal and Mr. Allsop:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that City of Monticello (City) did not improperly withhold\nrecords in violation of FOIA.\n\nOn July 15, 2015, submitted a FOIA request to the City,\n\nwhich included a request for \"[t]he most current plans and specs for the proposed WWTP [waste\nwater treatment plant].\"' On July 22, 2015 and July 29, 2015, the City produced records\nresponsive to BEE request. A fterMBinquired further about the project\nspecifications, the City denied the part of the request relating to the specifications under section\n7(1)(D of FOIA (5 ILCS 140/7(1)(H (West 2014)), on August 4, 2015. On August 6, 2015\nBREN ooretica this Request for Review, asserting that \"[t]he preliminary exemption does\nnot apply because the documents I requested have been publicly cited in city council meetings”\n\n‘E-mail from | OQ Terry Summers, City of Monticello July 15, 2015).\n\n500 South Second Street, Springfield, [inois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n100i East Main, Carbondale, Hlinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 « Fax: (618) 529-6416\n\nMr. Floyd L. Allsop\nSeptember 25, 2015\nPage 2\n\nand \"[t]he city engineer publicly said in a city council meeting that the requested plans and\nspecifications were done.\"?\n\nOn August 17, 2015, we forwarded a copy of the Request for Review to the City\nand requested the withheld responsive records for our confidential review together with a\ndetailed explanation of the factual and legal bases for the assertion of section 7(1)(f) of FOIA.\nThe City responded with an explanation and the requested records. The City stated:\n\nThe City of Monticello is currently working with Fehr-\nGraham, an Engineering and Environmental firm, to complete a\nplan for Waste Water Treatment Plant Improvements. Fehr-\nGraham has provided the City with contract documents and\nspecifications in relation to this plan. * * * These documents are\n\"complete\" in the sense they have been provided to City staff for\nreview, but they remain a work in progress until City Council\nreviews them and makes a determination of the direction this\nproject will go. As of this date these plans have not been provided\nto nor reviewed by City Council. They have been reviewed only\nby City staff in formulating plans for the project under\nconsideration.*\n\nOur office forwarded the City's i: September 11, 2015, and he\nreplied on September 14, 2015. contended that the specifications were discussed\nat the July 13, 2015, City Council meeting, and therefore were not exempt under section 7(1)(f)\nbecause they had been \"publicly cited and identified by the head of the public body.\" During a\ntelephone conversation with an Assistant Attorney General from the Public Access Bureau on\nSeptember 21, 2015, a representative of the City further explained that Fehr-Graham is working\nwith the City as a consulting engineer to design a new treatment plant, and the City continues to\n\nconsider how to move forward with the project.\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2014). FOIA requires that \"each public body shall make available to any person\n\n2E-mail fro Public Access Bureau (August 6, 2015).\n\n“Letter from Floyd L. Allsop, Superintendent of City Services, City of Monticello, to Neil P.\nOlson, Assistant Attorney General, Public Access Bureau (August 24, 2015).\n\n\nMr. Floyd L. Allsop\nSeptember 25, 2015\nPage 3\n\nfor inspection and copying all public records, except as otherwise provided in Section 7 of this\nAct.\" 5 ILCS 140/3(a) (West 2014)).\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption\nalso has been interpreted as extending to communications between a public body and a\nconsultant when \"the consultant does not represent an interest of its own, or the interest of any\nother client, when it advises the [public body] that hires it.\". Harwood, 344 Ill. App. 3d at 248\n(quoting Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,11, 121\nS. Ct. 1060, 1067 (2001)). Section 7(1)(f) is \"intended to protect the communications process\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\" Harwood, 344 Ill. App. 3d at 248.\n\nWe have reviewed the withheld records provided for our confidential review,\nwhich were produced by Fehr-Graham, entitled \"Contract Documents and Specifications for City\nof Monticello Wastewater Treatment Improvements,” and marked as a \"review copy.\" The City\nhas described these records as part of the City's deliberative process in which its engineering\nconsultant advised the City on the options for making improvements to the wastewater treatment\nplant. Although the records were prepared by the consultant, the consultant has not been\nretained as a construction contractor to perform any improvements. Therefore, the consultant\nappears to have been representing the City's interests, rather than just its own interests or the\ninterests of other clients. In sum, these records reflect the process of intra-agency deliberation\nthat is preliminary to any final decision concerning the wastewater treatment plant. Accordingly,\nwe conclude that the withheld records fall within the scope of section 7(1)(f) of FOIA.\n\nhowever, asserts that the section 7(1)(f) exemption is inapplicable\nbecause the records were \"publicly cited and identified by the head of the public body.\" He\npoints to the public discussion about the project at the July 13, 2015, City Council meeting, as\nciting and identifying the withheld documents. See Monticello City Council, Agenda Item 9e\nQuly 13, 2015) (\"Waste Water Treatment Plant Design Discussion (Past, Present & Future) —\nCity Supt. F. Allsop, Engineer Andy Kieser (Fehr Graham)\").\n\nUnder FOIA, the “[h]ead of the public body’ means the president, mayor,\nchairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise\nholding primary executive and administrative authority for the public body, or such person's duly\nauthorized designee.\" 5 ILCS 140/2(e) (West 2014). The Mayor holds the primary executive\n\nMr. Floyd L. Allsop\nSeptember 25, 2015\nPage 4\n\nauthority for the City. See Monticello Code of Ordinances § 31.15 (approved December 9, 2013)\n(\"There is hereby created the Office of the Mayor, who shall be the chief executive officer of the\ncity.\") However, the City states in its August 24, 2015, response that the withheld records had\nnot been provided to or reviewed by the City Council. In addition, we have reviewed the\nminutes from the July 13, 2015, meeting and the video of that meeting available on the City\nwebsite. Our review confirms that the discussion was led by the City superintendent and a\nrepresentative of Fehr-Graham, and that the Mayor did not cite or identify the withheld records.\nTherefore, the available information does not support the assertion that the records were publicly\ncited or identified by the head of the public body. Accordingly, we conclude that the City did\nnot improperly withhold the records pursuant to section 7(1)(f) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 782-9078 or nolson@atg.state.il.us.\n\nVery truly yours,\n\nNEIL P. OLSON\nAssistant Attorney General\nPublic Access Bureau\n\n36740 f 71f proper mun\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Technical specifications for a waste water treatment plant","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-36740/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nSeptember 25, 2015\n\nVia electronic mail\n\nMr. Floyd L. Allsop\nFOIA Officer\n\nCity of Monticello\n\n210 North Hamilton\nMonticello, Illinois 61856\nfoia@cityofmonticello.net\n\nRE: FOIA Request for Review — 2015 PAC 36740\n\nDeal and Mr. Allsop:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that City of Monticello (City) did not improperly withhold\nrecords in violation of FOIA.\n\nOn July 15, 2015, submitted a FOIA request to the City,\n\nwhich included a request for \"[t]he most current plans and specs for the proposed WWTP [waste\nwater treatment plant].\"' On July 22, 2015 and July 29, 2015, the City produced records\nresponsive to BEE request. A fterMBinquired further about the project\nspecifications, the City denied the part of the request relating to the specifications under section\n7(1)(D of FOIA (5 ILCS 140/7(1)(H (West 2014)), on August 4, 2015. On August 6, 2015\nBREN ooretica this Request for Review, asserting that \"[t]he preliminary exemption does\nnot apply because the documents I requested have been publicly cited in city council meetings”\n\nand \"[t]he city engineer publicly said in a city council meeting that the requested plans and\nspecifications were done.\"?\n\nOn August 17, 2015, we forwarded a copy of the Request for Review to the City\nand requested the withheld responsive records for our confidential review together with a\ndetailed explanation of the factual and legal bases for the assertion of section 7(1)(f) of FOIA.\nThe City responded with an explanation and the requested records. The City stated:\n\nThe City of Monticello is currently working with Fehr-\nGraham, an Engineering and Environmental firm, to complete a\nplan for Waste Water Treatment Plant Improvements. Fehr-\nGraham has provided the City with contract documents and\nspecifications in relation to this plan. * * * These documents are\n\"complete\" in the sense they have been provided to City staff for\nreview, but they remain a work in progress until City Council\nreviews them and makes a determination of the direction this\nproject will go. As of this date these plans have not been provided\nto nor reviewed by City Council. They have been reviewed only\nby City staff in formulating plans for the project under\nconsideration.*\n\nOur office forwarded the City's i: September 11, 2015, and he\nreplied on September 14, 2015. contended that the specifications were discussed\nat the July 13, 2015, City Council meeting, and therefore were not exempt under section 7(1)(f)\nbecause they had been \"publicly cited and identified by the head of the public body.\" During a\ntelephone conversation with an Assistant Attorney General from the Public Access Bureau on\nSeptember 21, 2015, a representative of the City further explained that Fehr-Graham is working\nwith the City as a consulting engineer to design a new treatment plant, and the City continues to\n\nconsider how to move forward with the project.\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2014). FOIA requires that \"each public body shall make available to any person\n\n2E-mail fro Public Access Bureau (August 6, 2015).\n\n“Letter from Floyd L. Allsop, Superintendent of City Services, City of Monticello, to Neil P.\n\nfor inspection and copying all public records, except as otherwise provided in Section 7 of this\nAct.\" 5 ILCS 140/3(a) (West 2014)).\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra-agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption\nalso has been interpreted as extending to communications between a public body and a\nconsultant when \"the consultant does not represent an interest of its own, or the interest of any\nother client, when it advises the [public body] that hires it.\". Harwood, 344 Ill. App. 3d at 248\n(quoting Department of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,11, 121\nS. Ct. 1060, 1067 (2001)). Section 7(1)(f) is \"intended to protect the communications process\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\" Harwood, 344 Ill. App. 3d at 248.\n\nWe have reviewed the withheld records provided for our confidential review,\nwhich were produced by Fehr-Graham, entitled \"Contract Documents and Specifications for City\nof Monticello Wastewater Treatment Improvements,” and marked as a \"review copy.\" The City\nhas described these records as part of the City's deliberative process in which its engineering\nconsultant advised the City on the options for making improvements to the wastewater treatment\nplant. Although the records were prepared by the consultant, the consultant has not been\nretained as a construction contractor to perform any improvements. Therefore, the consultant\nappears to have been representing the City's interests, rather than just its own interests or the\ninterests of other clients. In sum, these records reflect the process of intra-agency deliberation\nthat is preliminary to any final decision concerning the wastewater treatment plant. Accordingly,\nwe conclude that the withheld records fall within the scope of section 7(1)(f) of FOIA.\n\nhowever, asserts that the section 7(1)(f) exemption is inapplicable\nbecause the records were \"publicly cited and identified by the head of the public body.\" He\npoints to the public discussion about the project at the July 13, 2015, City Council meeting, as\nciting and identifying the withheld documents. See Monticello City Council, Agenda Item 9e\nQuly 13, 2015) (\"Waste Water Treatment Plant Design Discussion (Past, Present & Future) —\nCity Supt. F. Allsop, Engineer Andy Kieser (Fehr Graham)\").\n\nUnder FOIA, the “[h]ead of the public body’ means the president, mayor,\nchairman, presiding officer, director, superintendent, manager, supervisor or individual otherwise\nholding primary executive and administrative authority for the public body, or such person's duly\n\nauthority for the City. See Monticello Code of Ordinances § 31.15 (approved December 9, 2013)\n(\"There is hereby created the Office of the Mayor, who shall be the chief executive officer of the\ncity.\") However, the City states in its August 24, 2015, response that the withheld records had\nnot been provided to or reviewed by the City Council. In addition, we have reviewed the\nminutes from the July 13, 2015, meeting and the video of that meeting available on the City\nwebsite. Our review confirms that the discussion was led by the City superintendent and a\nrepresentative of Fehr-Graham, and that the Mayor did not cite or identify the withheld records.\nTherefore, the available information does not support the assertion that the records were publicly\ncited or identified by the head of the public body. Accordingly, we conclude that the City did\nnot improperly withhold the records pursuant to section 7(1)(f) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 782-9078 or nolson@atg.state.il.us.\n\nVery truly yours,\n\nNEIL P. OLSON\nAssistant Attorney General\nPublic Access Bureau\n\n36740 f 71f proper mun"}
{"id":863,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-02-26","case_number":null,"request_numbers":["37067"],"title":"Illinois Department of Revenue improperly withheld personnel records under 7(1)(c), 7(1)(f), and 7(1)(m)","filename":"37067, issued February 26, 2016.pdf","rel_path":null,"word_count":1043,"summary":"The Associated Press requested records regarding hiring and employment matters sent to the Illinois Department of Revenue by specific individuals, which the Department denied citing exemptions for personal information, deliberative process, and pre-decisional material. The PAC determined the Department improperly withheld the records because they did not qualify as pre-decisional deliberative material.","plain_summary":"The requester sought communications the department's personnel office received regarding hiring and staffing matters, which the department withheld as deliberative material. The PAC determined that the records largely requested and conveyed factual and logistical information rather than opinions or recommendations, so the department did not meet its burden of showing they were exempt as deliberative. The department was directed to furnish the records to the requester.","holding":"The Illinois Department of Revenue improperly denied the request because the withheld records did not constitute pre-decisional deliberative material.","legal_question":"Whether records concerning hiring and employment matters sent to the Department of Revenue by external parties qualify for the deliberative process exemption under section 7(1)(f) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"Illinois Department of Revenue","requesting_party":"Mr. John O'Connor (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought correspondence regarding state hiring and employment matters sent to the Department of Revenue by various individuals.","ocr_status":"llm_reocr","ocr_quality":89.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Exception-for-purely-factual-material/37067%2C%20issued%20February%2026%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["hiring records","deliberative process","personnel records","FOIA denial"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 26,  2016\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs.  Abigail L.  Rennolds\n\nFreedom of Information Officer\n\nIllinois Department of Revenue\n\n101 West Jefferson Street, MC 6- 595\n\nSpringfield,  Illinois 62702\n\nRev. foia@illinois. gov\n\nRE:  FOIA Request for Review — 2015 PAC 37067\n\nDear Mr. O' Connor and Ms. Rennolds: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2014)).  For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Revenue ( Department) \nimproperly denied Mr. John O'Connor's June 24,  2015,  FOIA request. \n\nOn that date,  Mr. O' Connor,  on behalf of the Associated Press,  submitted a\n\nnarrowed FOIA request to the Department seeking copies of records concerning hiring or other\nemployment matters that the Department' s personnel/ human resources chief or his or her top\nassistant received from Nancy Kimme,  Judith McAnarney,  Matt Magalis,  and Jason Barclay\nbetween November 5,  2014,  and the date of the request.  On July l0, 2015,  the Department\nprovided a responsive record but denied all other records pursuantto sections 7( 1)( 0 and 7( 1)( m) \nof FOIA ( 5 ILCS 140/ 7( 1)( 0, ( 1)( m) ( West 2014)).  Mr. O' Connor' s Request for Review disputes\nthe denial of his request. \n\nOn August 27,  2015,  this office sent a copy of the Request for Review to the\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 2171 785 - 2771 •  Fax: ( 217)  782- 7046\nFax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago, \n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nIllinois,  60601 • (\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  John O' Connor\n\nMs.  Abigail L.  Rennolds\n\nFebruary 26,  2016\nPage 2\n\nDepartment and requested copies of the records that were withheld for our confidential review, \ntogether with a detailed explanation of the applicability of sections 7( 1)( f) and 7( 1)( m).  On\nSeptember 15,  2015,  the Department\nfurnished the records and a written response in which it\nwithdrew its assertion of section 7( 1)( m)  but reiterated that the records are exempt from\ndisclosure pursuant to section 7( 1)( f). Mr. O' Connor did not reply to that response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2014).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated,  except\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 7( 1)(\n5 U. S. C. § 552( b)( 5) ( 2012)),  which applies to \" inter-  and intra -agency predecisional and\ndeliberative material.\"  Harwood v.  McDonough,  344 I11.  App.  3d 242,  247 ( 1st Dist. 2003).  The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\"  Harwood,  344 Ill. App. \n3d at 248.  That exemption \" typically does not justify the withholding of purely factual material.\" \nEnviro Tech Intern., Inc.  v.  United States Environmental Protection Agency,  371 F. 3d 370, 374\n7th Cir. 2004).  Rather, \"[ o] nly those portions of a predecisional document\nthat reflect the give\nand take of the deliberative process may be withheld.\"  Kalven v. City of Chicago,  2013 IL App\n1st)  121846, ¶ 24,  7 N. E. 3d 741,  748 ( 2013),  quoting Public Citizen,  Inc.  v.  Office of\nManagement &  Budget,  598 F. 3d 865,  876 ( D. C.  Cir.  2010);  see also Chemical Weapons\nWorking Group v.  US.  E.P.A.,  185 F. R. D.  1,  3 ( D. C.  Cir 1999) (\"[ T] he critical question is\nwhether ' disclosure of the materials would expose an agency' s decision- making process in such a\nway as to discourage candid discussion within the agency and thereby undermine the agency' s\nability to perform its functions.' ( citing Dudman Communications v. Department of the Air\nForce,  815 F. 2d 1565,  1568 ( D. C.  Cir.  1987))).[ \n\nThe Department' s response to this office asserted that the records in question are: \n\nBecause Illinois'  FOIA statute is based on the federal FOIA statute,  decisions construing the\n\nlatter,  while not controlling, may provide helpful and relevant precedents in construing the state Act.  Margolis v. \nDirector,  111.  Department of Revenue,  180 111.  App.  3d 1084,  1087 ( 1989). \n\n\fMr. John O' Connor\n\nMs.  Abigail L.  Rennolds\nFebruary 26,  2016\nPage 3\n\nto the proper running of the state and deliberation on staffing\n\nvital\nare necessary to ensure that the Department continues to provide\nnecessary services to the taxpayers of the State of Illinois.  It is\nclear that Ms.  McAnarney was working with the Department, \ndiscussing and deliberating on the most effective means of staffing\nand filling vacancies.  These determinations are core functions of\nher position and the position of human resources staff of the\nDepartment. \nstaff a position,  these employees must be able to honestly and\nopenly communicate their opinions and concerns. t21\n\nIn order to effectively deliberate whether and how to\n\nWe have reviewed the records in question, which mostly request and convey\n\ninformation concerning employees and logistical\n\nfactual\nrecordkeeping.  These records do not express opinions or recommendations.  The Department\nhas not demonstrated how disclosure of any of the information would discourage candid\ndiscussion or reveal the give and take of the deliberative process.  Accordingly,  we conclude that\nthe Department has not sustained its burden of demonstrating that the records are exempt from\ndisclosure pursuant\n\ninformation concerning scheduling and\n\nto section 7( 1)(\n\nf) of FOIA. 3\n\nIn accordance with the conclusions expressed in this determination,  we request\nfurnish copies of the records in question to Mr. O' Connor.  The Public\n\nthat the Department\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion.  If you have any questions, please contact me at ( 312)  814- 6756.  This letter\nserves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37067 f 71f improper sa\n\nPublic Health,  to Steve Silverman,  Assistant Bureau Chief, Public Access Bureau ( September 9,  2015). \n\n2Letter from William Bryant,  Acting Freedom of Information Officer,  Illinois Department of\n\n3Among other things,  Mr.  O' Connor' s Request for Review contends that section 7( 1)(\n\nf)  does not\n\napply because Ms.  McAnarney,  as an employee of the Office of the Illinois Comptroller,  was not authorized to\nparticipate in deliberations about hiring in other State agencies.  Because our determination that the records in\nquestion are not pre -decisional deliberative material\n\nis dispositive,  we decline to address that argument. \n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 26, 2016\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMs. Abigail L. Rennolds\n\nFreedom of Information Officer\n\nIllinois Department of Revenue\n\n101 West Jefferson Street, MC 6- 595\n\nSpringfield, Illinois 62702\n\nRev. foia@illinois. gov\n\nRE: FOIA Request for Review — 2015 PAC 37067\n\nDear Mr. O' Connor and Ms. Rennolds: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons stated below, the\nPublic Access Bureau concludes that the Illinois Department of Revenue (Department) \nimproperly denied Mr. John O'Connor's June 24, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a\n\nnarrowed FOIA request to the Department seeking copies of records concerning hiring or other\nemployment matters that the Department's personnel/ human resources chief or his or her top\nassistant received from Nancy Kimme, Judith McAnarney, Matt Magalis, and Jason Barclay\nbetween November 5, 2014, and the date of the request. On July l0, 2015, the Department\nprovided a responsive record but denied all other records pursuantto sections 7(1)(0 and 7(1)(m) \nof FOIA (5 ILCS 140/ 7(1)(0, (1)(m) (West 2014)). Mr. O' Connor's Request for Review disputes\nthe denial of his request. \n\nOn August 27, 2015, this office sent a copy of the Request for Review to the\n\nDepartment and requested copies of the records that were withheld for our confidential review, \ntogether with a detailed explanation of the applicability of sections 7(1)(f) and 7(1)(m). On\nSeptember 15, 2015, the Department\nfurnished the records and a written response in which it\nwithdrew its assertion of section 7(1)(m) but reiterated that the records are exempt from\ndisclosure pursuant to section 7(1)(f). Mr. O' Connor did not reply to that response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). \n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nthat a specific record or relevant portion of a record shall not be\n\nf) exemption is equivalent to the deliberative process exemption in the federal FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(5 U. S. C. § 552(b)(5) (2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. That exemption \" typically does not justify the withholding of purely factual material.\" \nEnviro Tech Intern., Inc. v. United States Environmental Protection Agency, 371 F. 3d 370, 374\n7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional document\nthat reflect the give\nand take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App\n1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F. 3d 865, 876 (D. C. Cir. 2010); see also Chemical Weapons\nWorking Group v. US. E.P.A., 185 F. R. D. 1, 3 (D. C. Cir 1999) (\"[ T] he critical question is\nwhether ' disclosure of the materials would expose an agency's decision- making process in such a\nway as to discourage candid discussion within the agency and thereby undermine the agency's\nability to perform its functions.' (citing Dudman Communications v. Department of the Air\nForce, 815 F. 2d 1565, 1568 (D. C. Cir. 1987))).[ \n\nThe Department's response to this office asserted that the records in question are: \n\nBecause Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the\n\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v. \n\nto the proper running of the state and deliberation on staffing\n\nvital\nare necessary to ensure that the Department continues to provide\nnecessary services to the taxpayers of the State of Illinois. It is\nclear that Ms. McAnarney was working with the Department, \ndiscussing and deliberating on the most effective means of staffing\nand filling vacancies. These determinations are core functions of\nher position and the position of human resources staff of the\nDepartment. \nstaff a position, these employees must be able to honestly and\nopenly communicate their opinions and concerns. t21\n\nIn order to effectively deliberate whether and how to\n\nWe have reviewed the records in question, which mostly request and convey\n\ninformation concerning employees and logistical\n\nfactual\nrecordkeeping. These records do not express opinions or recommendations. The Department\nhas not demonstrated how disclosure of any of the information would discourage candid\ndiscussion or reveal the give and take of the deliberative process. Accordingly, we conclude that\nthe Department has not sustained its burden of demonstrating that the records are exempt from\ndisclosure pursuant\n\ninformation concerning scheduling and\n\nto section 7(1)(f) of FOIA. 3\n\nIn accordance with the conclusions expressed in this determination, we request\nfurnish copies of the records in question to Mr. O' Connor. The Public\n\nthat the Department\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion. If you have any questions, please contact me at (312) 814- 6756. This letter\nserves to close this file. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37067 f 71f improper sa\n\nPublic Health, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau (September 9, 2015). \n\n2Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\n3Among other things, Mr. O' Connor's Request for Review contends that section 7(1)(f) does not\n\napply because Ms. McAnarney, as an employee of the Office of the Illinois Comptroller, was not authorized to\nparticipate in deliberations about hiring in other State agencies. Because our determination that the records in\nquestion are not pre -decisional deliberative material\n\nis dispositive, we decline to address that argument.","plain_summary_pre_resummarize":"A reporter requested emails and documents regarding state hiring decisions sent to the Department of Revenue. The Department refused to release them, claiming they were private or part of internal decision-making discussions. The Attorney General's office reviewed the documents and decided they were not protected, ordering the Department to release the records to the reporter.","card_headline":"Correspondence about state hiring sent to a revenue department","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-37067/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nFebruary 26, 2016\n\nVia electronic mail\nMr. John O'Connor\nThe Associated Press\nStatehouse Pressroom\nSpringfield, Illinois 62706\njoconnor@ap.org\n\nVia electronic mail\nMs. Abigail L. Rennolds\nFreedom of Information Officer\nIllinois Department of Revenue\n101 West Jefferson Street, MC 6-595\nSpringfield, Illinois 62702\nRev.foia@illinois.gov\n\nRE: FOIA Request for Review – 2015 PAC 37067\n\nDear Mr. O'Connor and Ms. Rennolds:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons stated below, the Public Access Bureau concludes that the Illinois Department of Revenue (Department) improperly denied Mr. John O'Connor's June 24, 2015, FOIA request.\n\nOn that date, Mr. O'Connor, on behalf of the Associated Press, submitted a narrowed FOIA request to the Department seeking copies of records concerning hiring or other employment matters that the Department's personnel/human resources chief or his or her top assistant received from Nancy Kimme, Judith McAnarney, Matt Magalis, and Jason Barclay between November 5, 2014, and the date of the request. On July 10, 2015, the Department provided a responsive record but denied all other records pursuant to sections 7(1)(f) and 7(1)(m) of FOIA (5 ILCS 140/7(1)(f), (1)(m) (West 2014)). Mr. O'Connor's Request for Review disputes the denial of his request.\n\nOn August 27, 2015, this office sent a copy of the Request for Review to the\n\nDepartment and requested copies of the records that were withheld for our confidential review, together with a detailed explanation of the applicability of sections 7(1)(f) and 7(1)(m). On September 15, 2015, the Department furnished the records and a written response in which it withdrew its assertion of section 7(1)(m) but reiterated that the records are exempt from disclosure pursuant to section 7(1)(f). Mr. O'Connor did not reply to that response.\n\nDETERMINATION\n\nAll 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 2014). 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 2014).\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" The section 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA (5 U.S.C. §552(b)(5) (2012)), which applies to \"inter- and intra-agency predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption is \"intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. That exemption \"typically does not justify the withholding of purely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection Agency, 371 F.3d 370, 374 (7th Cir. 2004). Rather, \"[o]nly those portions of a predecisional document that reflect the give and take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App (1st) 121846, ¶24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010); see also Chemical Weapons Working Group v. U.S. E.P.A., 185 F.R.D. 1, 3 (D.C. Cir 1999) (\"[T]he critical question is whether 'disclosure of the materials would expose an agency's decision-making process in such a way as to discourage candid discussion within the agency and thereby undermine the agency's ability to perform its functions.'\" (citing Dudman Communications v. Department of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987))).¹\n\nThe Department's response to this office asserted that the records in question are:\n\n¹Because Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the latter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v. Director, Ill. Department of Revenue, 180 Ill. App. 3d 1084, 1087 (1989).\n\nvital to the proper running of the state and deliberation on staffing are necessary to ensure that the Department continues to provide necessary services to the taxpayers of the State of Illinois. It is clear that Ms. McAnarney was working with the Department, discussing and deliberating on the most effective means of staffing and filling vacancies. These determinations are core functions of her position and the position of human resources staff of the Department. In order to effectively deliberate whether and how to staff a position, these employees must be able to honestly and openly communicate their opinions and concerns.[2]\n\nWe have reviewed the records in question, which mostly request and convey factual information concerning employees and logistical information concerning scheduling and recordkeeping. These records do not express opinions or recommendations. The Department has not demonstrated how disclosure of any of the information would discourage candid discussion or reveal the give and take of the deliberative process. Accordingly, we conclude that the Department has not sustained its burden of demonstrating that the records are exempt from disclosure pursuant to section 7(1)(f) of FOIA.³\n\nIn accordance with the conclusions expressed in this determination, we request that the Department furnish copies of the records in question to Mr. O'Connor. The Public Access Counselor has determined that resolution of this matter does not require the issuance of a binding opinion. If you have any questions, please contact me at (312) 814-6756. This letter serves to close this file.\n\nVery truly yours,\n\n[REDACTED]\n\nSTEVE SILVERMAN\nAssistant Bureau Chief\nPublic Access Bureau\n\n37067 f 71f improper sa\n\n²Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of Public Health, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau (September 9, 2015).\n\n³Among other things, Mr. O'Connor's Request for Review contends that section 7(1)(f) does not apply because Ms. McAnarney, as an employee of the Office of the Illinois Comptroller, was not authorized to participate in deliberations about hiring in other State agencies. Because our determination that the records in question are not pre-decisional deliberative material is dispositive, we decline to address that argument."}
{"id":864,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-01-04","case_number":null,"request_numbers":["37306"],"title":"Governor's Office of Management and Budget improperly withheld PowerPoint under 7(1)(f)","filename":"37306, issued January 4, 2016.pdf","rel_path":null,"word_count":2968,"summary":"The Associated Press requested budget policy reports from the Governor's Office of Management and Budget (GOMB), which GOMB denied by citing the deliberative process exemption. The PAC determined that GOMB failed to provide clear and convincing evidence that the records were exempt and ordered their disclosure.","plain_summary":"A reporter requested budget-related documents from the Governor's budget office, but the office refused to release a PowerPoint presentation, claiming it was part of internal policy discussions. The Attorney General's office reviewed the request and found that the budget office did not prove the document was exempt from public view. Consequently, the office was ordered to release the PowerPoint to the reporter.","holding":"The Governor's Office of Management and Budget improperly withheld a PowerPoint presentation under the deliberative process exemption.","legal_question":"Whether the Governor's Office of Management and Budget properly invoked the deliberative process exemption under section 7(1)(f) of FOIA to withhold a PowerPoint presentation.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Governor's Office of Management and Budget","requesting_party":"Mr. John O'Connor (Associated Press)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request sought budget policy reports and deliverables produced by a consultant.","ocr_status":"ok","ocr_quality":91.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/37306%2C%20issued%20January%204%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["deliberative process","budget records","FOIA denial","PowerPoint"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 4,  2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMr. Curt Clemons - Mosby\nFOIA Officer\nGovernor' s Office of Management and Budget\n\n603 Stratton Building\nSpringfield,  Illinois 62794\n\nCurt. clemonsmosby@illinois. gov\n\nRE:  FOIA Request for Review — 2015 PAC 37306\n\nDear Mr. O' Connor and Mr.  Clemons -Mosby: \n\nThis determination is issued pursuant to section 9. 5( t) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).  For the reasons discussed below, the\nPublic Access Bureau concludes that the Governor's Office of Management and Budget\nGOMB)  violated the requirements of FOIA by improperly denying a portion of Mr. John\nO' Connor August 27,  2015,  FOIA request. \n\nOn that date,  Mr. O' Connor,  on behalf of the Associated Press,  submitted a FOIA\n\nrequest to GOMB seeking copies of any reports or other deliverables produced by Ms.  Donna\nArduin.  On September 3,  2015,  GOMB provided responsive records but withheld a \" power\nPoint deck in which budget policy is described[,]\"  citing as its basis for the denial section 7( 1)(\nof FOIA ( 5 ILCS 140/ 7( 1)(\n2015).'  Mr. O' Connor disputes the denial of the Microsoft PowerPoint records. \n\nf) \nf) (West 2014),  as amended by Public Act 99- 298,  effective August 6, \n\nManagement and Budget,  to John O' Connor,  Associated Press ( September 3,  2015),  at 2. \n\nLetter from Curt Clemons - Mosby,  Freedom of Information Act Officer,  Governor' s Office of\n\n500 South Second Street,  Springfield,  Illinois 62706 • (\nFax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois,  60601 • ( 312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\n1001 East Main,  Carbondale,  Illinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4,  2016\nPage 2\n\nOn September 14,  2015,  this office forwarded a copy of the Request for Review\nreview, \nto GOMB and asked it to provide copies of the responsive records for our confidential\ntogether with a detailed explanation of the factual and legal bases for its assertion of the section\n7( 1)( f) exemption.  On September 23,  2015,  this office received a copy of the PowerPoint\npresentation together with GOMB' s written response.  This office forwarded a copy of GOMB' s\nwritten response to Mr.  O' Connor on September 25,  2015;  he did not reply. \n\nANALYSIS\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\"  5 ILCS\n140/ 1 ( West 2014).  Section 3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2014))  provides that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \nexcept as otherwise provided in Sections 7 and 8. 5 of this Act.\"  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA,  which was asserted by GOMB,  exempts from disclosure\np] reliminary drafts,  notes,  recommendations,  memoranda and other records in which opinions\n\nf) exemption applies to \" inter-  and intra -agency\n\nare expressed,  or policies or actions are formulated,  except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.\"  The section 7( 1)(\npredecisional and deliberative material.\"  Harwood v. McDonough,  344 Ill. App. 3d 242,  247\n1st Dist. 2003).  Section 7( 1)( f) is \" intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood,  344 Ill. App.  3d at 248.  Section 7( 1)( f) does not,  however,  exempt from disclosure\npurely factual material.  See Ill. Att'y Gen.  Pub.  Acc.  Op. No.  13- 015,  issued September 24, \n2013,  at 7.  Rather, \"[ o] nly those portions of a predecisional document\ntake of the deliberative process may be withheld.\"  Kalven v. City of Chicago,  2013 IL App ( 1st) \n121846, ¶ 24,  7 N.E. 3d 741,  748 ( 2013) ( quoting Public Citizen,  Inc. v.  Office of Management & \nBudget,  598 F. 3d 865,  876 ( D. C.  Cir.  2010)).  Further,  a public body that asserts the deliberative\nprocess exemption \" has the burden of establishing what deliberative process is involved,  and the\nrole played by the documents in issue in the course of that process.\"  Coastal States Gas Corp.  v. \nDepartment of Energy,  617 F. 2d 854,  868 ( D. C.  Cir 1980). \n\nthe give and\n\nthat reflect\n\nBased upon our review,  the PowerPoint presentation reflects general\n\nconsiderations for budget making and conceptual principles concerning the role of government, \nas well as directives about how to apply those principles and to communicate with the involved\n\nparties. \n\nIn its response to this office,  GOMB states that it informed Mr. O' Connor that \" a\n\n\fMr. John O' Connor\n\nMr. Curt Clemons - Mosby\nJanuary 4,  2016\nPage 3\n\nPowerPoint slide deck produced by Ms.  Arduin[ ]  was being withheld as exempt from disclosure\nf), as it contained the description of budget policy. \" 2 GOMB then relies\nunder 5 ILCS 140/ 7( 1)(\nits assertion that \" this PowerPoint presentation\non the plain language of section 7( 1)(\n\nf) to support\n\nis exempt because it is a record ' in which opinions are expressed,  or policies or actions are\n\nformulated. ii3 The response by GOMB further states: \n\nThe withheld PowerPoint was presented to GOMB analysts as\n\ntraining material on preparing for their role in the Fiscal Year 2017\nbudget development process.  Throughout the PowerPoint\n\npresentation,  Ms.  Arduin expresses opinions and provides\n\nrecommendations to the analysts on how best to go about their\n\nvital role of gathering and analyzing budget information. \nDeveloping a budget is the chief job responsibility of GOMB\nanalysts];  this responsibility necessarily involves deliberation and\nplanning.  Opinions and suggestions on how analysts go about the\nprocess of gathering and analyzing information are at their core\nfundamental to the formulation of budgetary policy.  Different\nmethods of gathering and analyzing information by analysts will, \nin the end,  result in very different final budget presentations.l41\n\nGOMB' s response also asserts that \" all records in its possession reflecting the internal\ndiscussions,  deliberations,  preliminary proposals,  calculations,  and assumptions utilized to\nproduce the Budget Books are preliminary and deliberative,  and as such are exempt from\ndisclosure under FOIA' s Section 7( 1)(\n\nf) Pre -Decisional Exemption. i5\n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral,  State of Illinois ( September 23,  2015),  at\n\n1. \n\nLetter from Curt Clemons -Mosby,  Freedom of Information Act Officer,  Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral,  State of Illinois ( September 23,  2015),  at 2. \n\nLetter from Curt Clemons -Mosby,  Freedom of Information Act Officer,  Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral,  State of Illinois ( September\n\n23,  2015),  at 2. \n\n5Letter from Curt Clemons - Mosby,  Freedom of Information Act Officer,  Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau,  Office of the Attorney\nGeneral,  State of Illinois ( September 30,  2015),  at 3. \n\n\fMr. John O' Connor\n\nMr.  Curt Clemons - Mosby\nJanuary 4,  2016\nPage 4\n\nAs an initial matter,  we note that Ms.  Arduin,  who produced the PowerPoint\n\nto the Governor' s Office.  The section 7( 1)( f) \n\npresentation,  was serving as a budget consultant\nexemption encompasses \" communications between government agencies and outside consultants\nwhose analyses and recommendations ' played essentially the same part in an agency' s process of\ndeliberation as documents prepared [ internal citation]  by agency personnel might have done.'\" \nHarwood, 344 Ill. App.  3d at 248,  quoting Department of the Interior v. Klamath Water Users\nProtective Ass' n.,  532 U. S. \nconcluded that a report prepared by an outside consultant for a State agency fell within the scope\nof section 7( 1)(\ninterest of any other client,\"'  when it advised the agency.  Harwood, 344 Ill. App. 3d at 248, \nquoting Klamath Water Users Protective Ass' n.,  532 U. S.  at 11,  121 S. Ct. at 1067.  Likewise, \nthere is no indication that Ms.  Arduin represented any interests other than those of the\nGovernor' s Office in connection with the records at issue.  Therefore, our determination in this\nmatter hinges on the issue of whether the withheld PowerPoint presentation constitutes exempt\n\nf) partly because the consultant did \"' not represent an interest of its own,  or the\n\n1,  10,  121 S. Ct.  1060,  1067 ( 2001).  Thus,  in Harwood the court\n\npre -decisional deliberative material. \n\nIn American Immigration Council v.  United States Department of Homeland\n\nSecurity,  905 F.  Supp.  2d 206,  218 ( D. D. C.  2012),  a federal district court considered whether\nfive versions of PowerPoint slides used by the U. S.  Citizenship and Immigration Services\nUSCIS)  to train agency employees to interact with private attorneys were properly withheld\nunder the deliberative process exemption ( Exemption 5)  in the Federal FOIA ( 5 U. S. C. \n\n552( b)( 5) ( 2010)). 6 At the outset,  the court stated that for the deliberative process exemption to\n\napply: \n\na record must meet two requirements.  First,  it must be\n\npredecisional — i. e., \" antecedent\npolicy.\" [ Citations.] * * * \ni. e., \" a direct part of the deliberative process in that it makes\n\nto the adoption of an agency\nSecond,  a record must be deliberative — \n\nrecommendations or expresses opinions on legal or policy\nmatters.\" [ Citation.]  American Immigration Council,  905 F.  Supp. \n2dat217- 18. \n\nThe court specifically noted that \"'[ a]  document\nthat does nothing more than explain an existing\npolicy cannot be considered deliberative.'  American Immigration Council,  905 F.  Supp.  2d at\n218,  quoting Public Citizen,  Inc.  v.  Office of Management &  Budget,  598 F. 3d 865,  876 ( D. C. \nCir. 2010).  The court further explained that the deliberative process exemption \"' calls for\ndisclosure of all opinions and interpretations which embody the agency' s effective law and\n\n6Exemption 5 of the Federal FOIA ( 5 U. S. C. §  552( b)( 5) ( 2010))  permitted an agency to\n\nwithhold \" inter -agency or intra -agency memorandums or letters which would not be available by law to a party\n\nother\n\nthan an agency in litigation with the agency.\" \n\n\fMr. John O' Connor\n\nMr. Curt Clemons -Mosby\nJanuary 4,  2016\nPage 5\n\nthe agency' s group thinking in the process\n\npolicy,  and the withholding of all papers which reflect\nof working out its policy and determining what its law shall be.'  American Immigration Council, \n905 F.  Supp.  2d at 218,  quoting Sears,  Roebuck &  Co.,  421 U. S. 132,  153,  95 S. Ct. 1504,  1517- 18\n1975).  Because the training materials reflected the agency' s established policy rather than its\ndeliberations,  the court held that the deliberative process exemption did not apply: \" These\ntraining slides are neither predecisional nor deliberative.  A training is not a step in making a\ndecision;  it is a way to disseminate a decision already made. \nemployees to go forth and apply the information in the slides,  USCIS entrenched its policies.\" \nAmerican Immigration Council, 905 F.  Supp. 2d at 218. \n\nIndeed,  by teaching USCIS\n\nSimilarly,  in Leadership Conference on Civil Rights v.  Gonzales,  404 F.  Supp.  2d\n246,  254 ( D.D. C.  2005),  the United States Department of Justice cited — among other provisions\n\nExemption 5 to deny an advocacy group' s request for a draft of a training manual on the\n\nProsecution of federal election offenses. \nbeen shared with non -Justice Department attorneys during a symposium, \nthat the training manual was not predecisional deliberative material because it \" had been adopted\nas guidance.\"  Leadership Conference on Civil Rights,  404 F.  Supp.  2d at 255.  The court further\n\nIn addition to emphasizing that the training manual had\n\nthe court concluded\n\nexplained: \n\nThe 2004 manual was not distributed to the symposium attendees\n\nto generate suggestions,  additional input or recommendations\nbefore adoption of a final 7th Edition of the manual.  Rather, the\n\ntraining manual was distributed as updated guidance for the\nattendees.  Furthermore,  defendants have proffered no evidence\n\nthat the 2004 training manual was not provided as guidance,  to\nthose attending the symposium.  Leadership Conference on Civil\nRights,  404 F.  Supp.  2d at 255. \n\nMoreover,  the court ruled that the draft of the training manual was a \" final\n\nproduct[,]\"  and that the \" Justice Department established the finality of the 2004 training manual\nwhen they decided to use it to train federal prosecutors for the 2004 national election.\" \nLeadership Conference on Civil Rights,  404 F.  Supp.  2d at 256;  see also Stokes v.  Brennan,  476\nF. 2d 699,  703 ( 5th Cir.  1973) ( concluding that \" it would be a perversion of the Act to classify\" \ntraining materials used to train inspectors for the Occupational Safety and Health Administration\nas exempt from disclosure under Exemption 5,  which \" was not defined as an exception to\ncompelled disclosure in order to authorize an agency to throw a protective blanket over any type\nof information it might choose by the expedient of casting it in the form of an internal\n\nmemorandum.\"). \n\nOur courts have determined that because Illinois' FOIA statute is based on the\n\nfederal FOIA statute,  decisions construing similar provisions of the federal Act,  while not\n\n\fMr.  John O' Connor\n\nMr.  Curt Clemons - Mosby\nJanuary 4,  2016\nPage 6\n\ncontrolling,  may provide helpful and relevant precedents in construing the State Act.  See,  e. g., \nMargolis v. Director, 111.  Department ofRevenue,  180 Ill. App.  3d 1084,  1087 ( 1st Dist.  1989). \nIn the absence of reported Illinois cases relating to the disclosure of training materials under\nFOIA,  the analysis and reasoning of these federal cases is persuasive. \n\nGOMB' s response to this office acknowledged that the PowerPoint presentation at\n\nthe back -and -forth\n\nissue \" contained the description of budget policy[ ]\"  and was \" presented to GOMB analysts as\ntraining material on preparing for their role in the Fiscal Year 2017 budget development\nprocess.\" 7 While GOMB' s response to this office also describes in detail\ncollaborative process that takes place as a budget is being crafted, the PowerPoint presentation\ndoes not reflect any of the \" internal deliberations and discussions,  iterations of proposals, \ncalculations,  and assumptions that combine to ultimately produce the Budget Book.\" 8\nInstead,  as\nnoted above,  the PowerPoint slides largely consisted of general policy considerations for budget\nmaking and conceptual principles concerning the role of government,  as well as directives to the\nbudget analysts about how to apply those principles and to communicate with the involved\nparties.  The presentation does not reflect\nconcerning the formulation of a specific budget,  or any deliberative process between Ms.  Arduin, \nwho conducted the training,  and the budget analysts who attended.  Rather,  the training materials\nconstitute straightforward policy directives and guidance for budget analysts to use when they\nare participating in formulating budgets. \npredecisional — any decisions that may have been made with respect to what policies and\ninformation would be provided to budget analysts to help them prepare for their role in the\nbudget process were finalized and memorialized in the slides that were presented as guidance to\nthem.  Additionally,  the PowerPoint presentation is not deliberative — it explains the\nconsiderations and policies that should guide the budget analysts in their role rather than\n\nthe give and take of any deliberative process\n\nIn short,  the PowerPoint\n\nitself is not a draft or\n\nreflecting the process of working out which policies and considerations should guide the\n\nanalysts. \n\nAs the courts explained in American Immigration Council and Leadership\n\nConference on Civil Rights, when records are used for training purposes they constitute final\ndecisions rather than predecisional deliberative materials.  GOMB has not cited any authority for\nits assertion that these training materials are exempt from disclosure under section 7( 1)(\nFOIA.  Accordingly,  this office concludes that GOMB has not sustained its burden of\n\nf) of\n\nLetter from Curt Clemons -Mosby,  Freedom of Information Act Officer,  Governor' s Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral,  State of Illinois ( September 30,  2015),  at 1- 2. \n\nBLetter from Curt Clemons - Mosby,  Freedom of Information Act Officer,  Governor' s Office of\n\nManagement and Budget,  to Neil Olson,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney\nGeneral,  State of Illinois ( September 30,  2015),  at 2. \n\n\fMr. John O' Connor\n\nMr.  Curt Clemons - Mosby\nJanuary 4,  2016\nPage 7\n\ndemonstrating by clear and convincing evidence that the PowerPoint slides at issue in this matter\nare exempt from disclosure pursuant to section 7( 1)(\n\nf) of FOIA. \n\nIn accordance with the conclusions expressed in this determination,  this office\n\nrequests that GOMB furnish a copy of the PowerPoint presentation to Mr. O' Connor.  The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion.  If you have any questions,  please contact me at ( 312)  814- 6756.  This letter\nserves to close this file. \n\nVery truly yours, \n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37306 f 71f improper\n\nsa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Budget reports by a state budget office consultant","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-37306/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 4, 2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. John O' Connor\n\nThe Associated Press\n\nStatehouse Pressroom\n\n[street address redacted for site publication -- see original PDF]\njoconnor@ap. org\n\nVia electronic mail\n\nMr. Curt Clemons - Mosby\nFOIA Officer\nGovernor's Office of Management and Budget\n\n603 Stratton Building\nSpringfield, Illinois 62794\n\nCurt. clemonsmosby@illinois. gov\n\nRE: FOIA Request for Review — 2015 PAC 37306\n\nDear Mr. O' Connor and Mr. Clemons -Mosby: \n\nThis determination is issued pursuant to section 9. 5(t) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons discussed below, the\nPublic Access Bureau concludes that the Governor's Office of Management and Budget\nGOMB) violated the requirements of FOIA by improperly denying a portion of Mr. John\nO' Connor August 27, 2015, FOIA request. \n\nOn that date, Mr. O' Connor, on behalf of the Associated Press, submitted a FOIA\n\nrequest to GOMB seeking copies of any reports or other deliverables produced by Ms. Donna\nArduin. On September 3, 2015, GOMB provided responsive records but withheld a \" power\nPoint deck in which budget policy is described[,]\" citing as its basis for the denial section 7(1)(of FOIA (5 ILCS 140/ 7(1)(2015).' Mr. O' Connor disputes the denial of the Microsoft PowerPoint records. \n\nf) \nf) (West 2014), as amended by Public Act 99- 298, effective August 6, \n\nManagement and Budget, to John O' Connor, Associated Press (September 3, 2015), at 2. \n\nLetter from Curt Clemons - Mosby, Freedom of Information Act Officer, Governor's Office of\n\nOn September 14, 2015, this office forwarded a copy of the Request for Review\nreview, \nto GOMB and asked it to provide copies of the responsive records for our confidential\ntogether with a detailed explanation of the factual and legal bases for its assertion of the section\n7(1)(f) exemption. On September 23, 2015, this office received a copy of the PowerPoint\npresentation together with GOMB's written response. This office forwarded a copy of GOMB's\nwritten response to Mr. O' Connor on September 25, 2015; he did not reply. \n\nANALYSIS\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" 5 ILCS\n140/ 1 (West 2014). Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2014)) provides that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \nexcept as otherwise provided in Sections 7 and 8. 5 of this Act.\" A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). \n\nSection 7(1)(f) of FOIA, which was asserted by GOMB, exempts from disclosure\np] reliminary drafts, notes, recommendations, memoranda and other records in which opinions\n\nf) exemption applies to \" inter- and intra -agency\n\nare expressed, or policies or actions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.\" The section 7(1)(predecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n1st Dist. 2003). Section 7(1)(f) is \" intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood, 344 Ill. App. 3d at 248. Section 7(1)(f) does not, however, exempt from disclosure\npurely factual material. See Ill. Att'y Gen. Pub. Acc. Op. No. 13- 015, issued September 24, \n2013, at 7. Rather, \"[ o] nly those portions of a predecisional document\ntake of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App (1st) \n121846, ¶ 24, 7 N.E. 3d 741, 748 (2013) (quoting Public Citizen, Inc. v. Office of Management & \nBudget, 598 F. 3d 865, 876 (D. C. Cir. 2010)). Further, a public body that asserts the deliberative\nprocess exemption \" has the burden of establishing what deliberative process is involved, and the\nrole played by the documents in issue in the course of that process.\" Coastal States Gas Corp. v. \nDepartment of Energy, 617 F. 2d 854, 868 (D. C. Cir 1980). \n\nthe give and\n\nthat reflect\n\nBased upon our review, the PowerPoint presentation reflects general\n\nconsiderations for budget making and conceptual principles concerning the role of government, \nas well as directives about how to apply those principles and to communicate with the involved\n\nPowerPoint slide deck produced by Ms. Arduin[ ] was being withheld as exempt from disclosure\nf), as it contained the description of budget policy. \" 2 GOMB then relies\nunder 5 ILCS 140/ 7(1)(its assertion that \" this PowerPoint presentation\non the plain language of section 7(1)(f) to support\n\nis exempt because it is a record ' in which opinions are expressed, or policies or actions are\n\nformulated. ii3 The response by GOMB further states: \n\nThe withheld PowerPoint was presented to GOMB analysts as\n\ntraining material on preparing for their role in the Fiscal Year 2017\nbudget development process. Throughout the PowerPoint\n\npresentation, Ms. Arduin expresses opinions and provides\n\nrecommendations to the analysts on how best to go about their\n\nvital role of gathering and analyzing budget information. \nDeveloping a budget is the chief job responsibility of GOMB\nanalysts]; this responsibility necessarily involves deliberation and\nplanning. Opinions and suggestions on how analysts go about the\nprocess of gathering and analyzing information are at their core\nfundamental to the formulation of budgetary policy. Different\nmethods of gathering and analyzing information by analysts will, \nin the end, result in very different final budget presentations.l41\n\nGOMB's response also asserts that \" all records in its possession reflecting the internal\ndiscussions, deliberations, preliminary proposals, calculations, and assumptions utilized to\nproduce the Budget Books are preliminary and deliberative, and as such are exempt from\ndisclosure under FOIA's Section 7(1)(f) Pre -Decisional Exemption. i5\n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor's Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 23, 2015), at\n\n1. \n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor's Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 23, 2015), at 2. \n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor's Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September\n\n23, 2015), at 2. \n\n5 Letter from Curt Clemons - Mosby, Freedom of Information Act Officer, Governor's Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\n\nAs an initial matter, we note that Ms. Arduin, who produced the PowerPoint\n\nto the Governor's Office. The section 7(1)(f) \n\npresentation, was serving as a budget consultant\nexemption encompasses \" communications between government agencies and outside consultants\nwhose analyses and recommendations ' played essentially the same part in an agency's process of\ndeliberation as documents prepared [ internal citation] by agency personnel might have done.'\" \nHarwood, 344 Ill. App. 3d at 248, quoting Department of the Interior v. Klamath Water Users\nProtective Ass' n., 532 U. S. \nconcluded that a report prepared by an outside consultant for a State agency fell within the scope\nof section 7(1)(interest of any other client,\"' when it advised the agency. Harwood, 344 Ill. App. 3d at 248, \nquoting Klamath Water Users Protective Ass' n., 532 U. S. at 11, 121 S. Ct. at 1067. Likewise, \nthere is no indication that Ms. Arduin represented any interests other than those of the\nGovernor's Office in connection with the records at issue. Therefore, our determination in this\nmatter hinges on the issue of whether the withheld PowerPoint presentation constitutes exempt\n\nf) partly because the consultant did \"' not represent an interest of its own, or the\n\n1, 10, 121 S. Ct. 1060, 1067 (2001). Thus, in Harwood the court\n\npre -decisional deliberative material. \n\nIn American Immigration Council v. United States Department of Homeland\n\nSecurity, 905 F. Supp. 2d 206, 218 (D. D. C. 2012), a federal district court considered whether\nfive versions of PowerPoint slides used by the U. S. Citizenship and Immigration Services\nUSCIS) to train agency employees to interact with private attorneys were properly withheld\nunder the deliberative process exemption (Exemption 5) in the Federal FOIA (5 U. S. C. \n\n552(b)(5) (2010)). 6 At the outset, the court stated that for the deliberative process exemption to\n\napply: \n\na record must meet two requirements. First, it must be\n\npredecisional — i. e., \" antecedent\npolicy.\" [ Citations.] * * * \ni. e., \" a direct part of the deliberative process in that it makes\n\nto the adoption of an agency\nSecond, a record must be deliberative — \n\nrecommendations or expresses opinions on legal or policy\nmatters.\" [ Citation.] American Immigration Council, 905 F. Supp. \n2dat217- 18. \n\nThe court specifically noted that \"'[ a] document\nthat does nothing more than explain an existing\npolicy cannot be considered deliberative.' American Immigration Council, 905 F. Supp. 2d at\n218, quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 (D. C. \nCir. 2010). The court further explained that the deliberative process exemption \"' calls for\ndisclosure of all opinions and interpretations which embody the agency's effective law and\n\n6 Exemption 5 of the Federal FOIA (5 U. S. C. § 552(b)(5) (2010)) permitted an agency to\n\nwithhold \" inter -agency or intra -agency memorandums or letters which would not be available by law to a party\n\nthe agency's group thinking in the process\n\npolicy, and the withholding of all papers which reflect\nof working out its policy and determining what its law shall be.' American Immigration Council, \n905 F. Supp. 2d at 218, quoting Sears, Roebuck & Co., 421 U. S. 132, 153, 95 S. Ct. 1504, 1517- 18\n1975). Because the training materials reflected the agency's established policy rather than its\ndeliberations, the court held that the deliberative process exemption did not apply: \" These\ntraining slides are neither predecisional nor deliberative. A training is not a step in making a\ndecision; it is a way to disseminate a decision already made. \nemployees to go forth and apply the information in the slides, USCIS entrenched its policies.\" \nAmerican Immigration Council, 905 F. Supp. 2d at 218. \n\nIndeed, by teaching USCIS\n\nSimilarly, in Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d\n246, 254 (D.D. C. 2005), the United States Department of Justice cited — among other provisions\n\nExemption 5 to deny an advocacy group's request for a draft of a training manual on the\n\nProsecution of federal election offenses. \nbeen shared with non -Justice Department attorneys during a symposium, \nthat the training manual was not predecisional deliberative material because it \" had been adopted\nas guidance.\" Leadership Conference on Civil Rights, 404 F. Supp. 2d at 255. The court further\n\nIn addition to emphasizing that the training manual had\n\nthe court concluded\n\nexplained: \n\nThe 2004 manual was not distributed to the symposium attendees\n\nto generate suggestions, additional input or recommendations\nbefore adoption of a final 7th Edition of the manual. Rather, the\n\ntraining manual was distributed as updated guidance for the\nattendees. Furthermore, defendants have proffered no evidence\n\nthat the 2004 training manual was not provided as guidance, to\nthose attending the symposium. Leadership Conference on Civil\nRights, 404 F. Supp. 2d at 255. \n\nMoreover, the court ruled that the draft of the training manual was a \" final\n\nproduct[,]\" and that the \" Justice Department established the finality of the 2004 training manual\nwhen they decided to use it to train federal prosecutors for the 2004 national election.\" \nLeadership Conference on Civil Rights, 404 F. Supp. 2d at 256; see also Stokes v. Brennan, 476\nF. 2d 699, 703 (5th Cir. 1973) (concluding that \" it would be a perversion of the Act to classify\" \ntraining materials used to train inspectors for the Occupational Safety and Health Administration\nas exempt from disclosure under Exemption 5, which \" was not defined as an exception to\ncompelled disclosure in order to authorize an agency to throw a protective blanket over any type\nof information it might choose by the expedient of casting it in the form of an internal\n\nmemorandum.\"). \n\nOur courts have determined that because Illinois' FOIA statute is based on the\n\nfederal FOIA statute, decisions construing similar provisions of the federal Act, while not\n\ncontrolling, may provide helpful and relevant precedents in construing the State Act. See, e. g., \nMargolis v. Director, 111. Department ofRevenue, 180 Ill. App. 3d 1084, 1087 (1st Dist. 1989). \nIn the absence of reported Illinois cases relating to the disclosure of training materials under\nFOIA, the analysis and reasoning of these federal cases is persuasive. \n\nGOMB's response to this office acknowledged that the PowerPoint presentation at\n\nthe back -and -forth\n\nissue \" contained the description of budget policy[ ]\" and was \" presented to GOMB analysts as\ntraining material on preparing for their role in the Fiscal Year 2017 budget development\nprocess.\" 7 While GOMB's response to this office also describes in detail\ncollaborative process that takes place as a budget is being crafted, the PowerPoint presentation\ndoes not reflect any of the \" internal deliberations and discussions, iterations of proposals, \ncalculations, and assumptions that combine to ultimately produce the Budget Book.\" 8\nInstead, as\nnoted above, the PowerPoint slides largely consisted of general policy considerations for budget\nmaking and conceptual principles concerning the role of government, as well as directives to the\nbudget analysts about how to apply those principles and to communicate with the involved\nparties. The presentation does not reflect\nconcerning the formulation of a specific budget, or any deliberative process between Ms. Arduin, \nwho conducted the training, and the budget analysts who attended. Rather, the training materials\nconstitute straightforward policy directives and guidance for budget analysts to use when they\nare participating in formulating budgets. \npredecisional — any decisions that may have been made with respect to what policies and\ninformation would be provided to budget analysts to help them prepare for their role in the\nbudget process were finalized and memorialized in the slides that were presented as guidance to\nthem. Additionally, the PowerPoint presentation is not deliberative — it explains the\nconsiderations and policies that should guide the budget analysts in their role rather than\n\nthe give and take of any deliberative process\n\nIn short, the PowerPoint\n\nitself is not a draft or\n\nreflecting the process of working out which policies and considerations should guide the\n\nanalysts. \n\nAs the courts explained in American Immigration Council and Leadership\n\nConference on Civil Rights, when records are used for training purposes they constitute final\ndecisions rather than predecisional deliberative materials. GOMB has not cited any authority for\nits assertion that these training materials are exempt from disclosure under section 7(1)(FOIA. Accordingly, this office concludes that GOMB has not sustained its burden of\n\nf) of\n\nLetter from Curt Clemons -Mosby, Freedom of Information Act Officer, Governor's Office of\n\nManagement and Budget, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (September 30, 2015), at 1- 2. \n\nBLetter from Curt Clemons - Mosby, Freedom of Information Act Officer, Governor's Office of\n\nManagement and Budget, to Neil Olson, Assistant Attorney General, Public Access Bureau, Office of the Attorney\n\ndemonstrating by clear and convincing evidence that the PowerPoint slides at issue in this matter\nare exempt from disclosure pursuant to section 7(1)(f) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that GOMB furnish a copy of the PowerPoint presentation to Mr. O' Connor. The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\nbinding opinion. If you have any questions, please contact me at (312) 814- 6756. This letter\nserves to close this file. \n\nVery truly yours, \n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n37306 f 71f improper\n\nsa"}
{"id":865,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-08","case_number":null,"request_numbers":["37368","42164","42741"],"title":"Quincy School District did not violate FOIA for not producing nonexistent documents","filename":"37368 42164 42741, issued February 8, 2017.pdf","rel_path":null,"word_count":1295,"summary":"The requester sought copies of complaints and investigation reports referenced in a prior letter, but the PAC determined the District did not violate FOIA because it did not possess responsive records and is not required to interpret past correspondence.","plain_summary":"A requester asked a school district for copies of specific complaints and investigation reports mentioned in an old letter. The Attorney General's office found that the district did not have these records and was not required to explain or interpret the meaning of the old letter for the requester. Consequently, the district's refusal to provide the documents was not a violation of the law.","holding":"The District did not violate FOIA because it does not possess the requested records and is not obligated to interpret or answer questions regarding previous documents.","legal_question":"Whether a public body violates FOIA by failing to produce records that do not exist or by refusing to interpret the content of existing records for a requester.","disposition":"no_violation","primary_statute":["5 ILCS 140/3.3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Quincy Public School District No. 172","requesting_party":"Mr. Murphy","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"records existence","subject_description":"The requester sought investigation reports and complaints referenced in a prior communication from the school district.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.3/37368%2042164%2042741%2C%20issued%20February%208%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["records request","non-existent records","FOIA obligations","school district"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 8, 2017\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Phyllis Stewart\n\nFOIA Officer\n\nQuincy Public School District No. 172\n1416 Maine Street\n\n[street address redacted for site publication -- see original PDF]\nstewarph@aps.org\n\nRE: FOIA Requests for Review ~ 2015 PAC 37368; 2016 PAC 42164;\n2016 PAC 42741\n\nDear QE and Ms. Stewart:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). re: submitted\nthree similar FOIA requests to the Quincy Public School District #172 (District) and three\nRequests for Review contesting the District's respective responses to his FOIA requests (2015\n\nPAC 37368, 2016 PAC 42164, and 2016 PAC 42741).! This office has consolidated the files for\npurposes of this determination because they concern the same records and the same issues. For\n\n‘E-mail from EE t0 [Phyllis] Stewart or [Ryan] Whicker (August 24, 2015)\n(requesting \"a hard copy of all these previous complaints and the investigation reports.\") (2015 PAC 37368); e-mail\nfrom a to [Phyllis] Stewart or [Ryan] Whicker (May 12, 2016) (requesting \"certified hard copies of all\nthese ‘previous complaints which have been investigated and found to be without merit’ and the investigation\nreports.\") (2016 PAC 42164); e-mail from to Ryan Whicker (June 19, 2016) (requesting \"certified\nhard copies of ail NGM ‘previous complaints which have been investigated and found to be without merit’\nand the investigation reports.\") (2016 PAC 42741).\n\n500 South Second Street, Springfield, Minois 62706 + (217) 782-1090 + TTY: (217) 785-2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\n\nMs. Phyllis Stewart\nFebruary 8, 2017\nPage 2\n\nthe reasons that follow, the Public Access Bureau concludes that the District's responses to I\ndid not violate FOIA.\n\nBetween September 4, 2015, and, June 30, 2016, SJ submitted the\nabove-captioned Requests for Review alleging that the District responded improperly to his\nFOIA requests seeking \"previous complaints\" and \"investigation reports\" referenced in \"Joel\nMurphy's written report to Steven Cobb regarding my uniform Grievance (Section 2:260).\"\" The\n\"written report\" EM references is a letter written on District letterhead, dated March 3,\n2014, from Mr. Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nregarding Mr. Murphy's findings on a grievance complaint aaa submitted to the\nDistrict.? The letter provides:\n\nI have investigated the Complaint filed by re\n\non January 22, 2014, a copy of which is attached.\n\nMy investigation reveals:\n\n1. A longstanding dispute by the complainant with the\nQuincy Public Schools.\n\n2. The matters complained of are not materially different\nfrom previous complaints which have been investigated and\nSound to be without merit.\n\nAccordingly, I recommend the complaint be dismissed.‘\n(Emphasis added.)\n\nThe District denied each of BE vequests by stating that they were either\nvague or overbroad or repeated requests for records that were previously provided to him. This\noffice construes those responses as asserting that did not reasonably describe the\nrecords he is seeking, or denials under section Porasonee ILCS 140/3(g) (West 2014)),\nwhich provides, in pertinent part: \"Repeated requests from the same person for the same records\n\n\"Letter from] o the Public Access Counselor (September 4, 2015) (2015 PAC\n37368); e-mail from i to the Public Access Counselor (May 31, 2016) (2016 PAC 42164); e-mail\nfrom EM to the Public Access Counselor (June 30, 2016) (2016 PAC 42741). ENE grievance\ncomplaint makes several allegations regarding the transfer of assets from the District's Working Cash Fund.\nUniform Grievance 2:260 from [EEE to Joel Murphy, Complaint Manager, Quincy Public School District\n172 (January 22, 2014).\n\n*Letter from Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nQuincy Public School District # 172 (March 3, 2014).\n\n“Letter from Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nQuincy Public School District # 172 (March 3, 2014).\n\n\nMs. Phyllis Stewart\nFebruary 8, 2017\nPage 3\n\nthat are unchanged or identical to records previously provided or properly denied under this Act\nshall be deemed unduly burdensome under this provision.”\n\nThis office forwarded a copy of each of [EEE Requests for Review to\nthe District and asked the District to explain its responses to SM requests. The District\nprovided written explanations to this office. P| submitted replies.\n\nDETERMINATION\n\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)) provides that \"[a}ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nHowever, \"[a] requester is entitled only to records that an agency has in fact chosen to create and\nretain.\" Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982).\n\nFOIA \"is not intended to compel public bodies to interpret or advise requesters as to the meaning\nor significance of the public records.\" 5 ILCS 140/3.3 (West 2014); see also Kenyon v. Garrels,\n184 Ill. App. 3d 28, 32, 540 N.E.2d 11, 13 (4th Dist. 1989) (a public body is not required to\nanswer questions or create records in response to a FOIA request).\n\nWith respect to any responsive records of \"previous complaints,\" in a telephone\ncall with an Assistant Attorney General (AAG) in the Public Access Bureau, the District's\nattorney, Mr. David G. Penn, clarified that the \"previous complaints\" Mr. Murphy referenced in\nhis March 3, 2014, letter were a general history of communications from EEE including\nin person meetings with {ME he was not referring to any specific written complaints.\nOn December 1, 2016, this office asked [J whether he submitted to the District any\nwritten complaints that he is seeking from the District.’ Without directly answering that\nquestion I esponded that he had two letters referring to previous complaints, which\nhe forwarded to this office.© Upon review, EEE provided this office with four letters\ndated between March 26, 2012, and June 25, 2012, which consist of correspondence between an\nattorney for SMM and an attorney for the District, and correspondence from an attorney\nfor ME to the Illinois State Board of Education, none of which refer to any written\n\ncomplaints from EM to the District.\n\nWith respect to the requested \"investigation reports,\" Mr. Penn explained that the\n\n5E-mail from Edie Steinberg, Assistant Attorney General, Public Access Bureau, oa\nHE (December 1, 2016).\n\n°E-mail from | CO Edie Steinberg [Assistant Attorney General, Public Access\nBureau] (December 1, 2016).\n\na = =\n\nFebruary 8, 2017\nPage 4\n\nDistrict did not previously conduct a formal investigation related to its history of\ncommunications with —. and that no investigation reports were written. This office\nhas not received any information from which we could conclude that Mr. Murphy was referring\nto any particular records of \"previous complaints” in his May 3, 2014, letter. Nor does the\navailable information indicate that the District possesses any \"investigation reports\" responsive\nto HE request. This office also notes that to the extent that HE equests\ncould be construed as asking the District to interpret Mr. Murphy's May 3, 2014, letter and\nanswer questions regarding the meaning of the letter, FOIA does not require the District to\ninterpret records or answer questions. See 5 ILCS 140/3.3 (West 2014).\n\nAlthough the District's responses to J requests may have been clearer,\nfor the reasons explained above, this office concludes that the District's responses to\ndid not violate FOIA.\n\nThe Public Access Counselor has determined that resolution of these matters do\nnot require the issuance of a binding opinion. These files are closed. If you have any questions,\n\nplease contact me at 312-814-5201 or at the Chicago address listed on the first page of this letter.\n\nEDIE STEINBERG\nAssistant Attorney General\nPublic Access Bureau\n\n37368 42164 42741 f 3d complete sd\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Investigation reports and complaints referenced in a prior communication","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-37368/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 8, 2017\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Phyllis Stewart\n\nFOIA Officer\n\nQuincy Public School District No. 172\n1416 Maine Street\n\n[street address redacted for site publication -- see original PDF]\nstewarph@aps.org\n\nRE: FOIA Requests for Review ~ 2015 PAC 37368; 2016 PAC 42164;\n2016 PAC 42741\n\nDear QE and Ms. Stewart:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). re: submitted\nthree similar FOIA requests to the Quincy Public School District #172 (District) and three\nRequests for Review contesting the District's respective responses to his FOIA requests (2015\n\nPAC 37368, 2016 PAC 42164, and 2016 PAC 42741).! This office has consolidated the files for\npurposes of this determination because they concern the same records and the same issues. For\n\n‘E-mail from EE t0 [Phyllis] Stewart or [Ryan] Whicker (August 24, 2015)\n(requesting \"a hard copy of all these previous complaints and the investigation reports.\") (2015 PAC 37368); e-mail\nfrom a to [Phyllis] Stewart or [Ryan] Whicker (May 12, 2016) (requesting \"certified hard copies of all\nthese ‘previous complaints which have been investigated and found to be without merit’ and the investigation\nreports.\") (2016 PAC 42164); e-mail from to Ryan Whicker (June 19, 2016) (requesting \"certified\nhard copies of ail NGM ‘previous complaints which have been investigated and found to be without merit’\n\nthe reasons that follow, the Public Access Bureau concludes that the District's responses to I\ndid not violate FOIA.\n\nBetween September 4, 2015, and, June 30, 2016, SJ submitted the\nabove-captioned Requests for Review alleging that the District responded improperly to his\nFOIA requests seeking \"previous complaints\" and \"investigation reports\" referenced in \"Joel\nMurphy's written report to Steven Cobb regarding my uniform Grievance (Section 2:260).\"\" The\n\"written report\" EM references is a letter written on District letterhead, dated March 3,\n2014, from Mr. Joel A. Murphy, Complaint Manager, to Mr. Steven M. Cobb, Superintendent,\nregarding Mr. Murphy's findings on a grievance complaint aaa submitted to the\nDistrict.? The letter provides:\n\nI have investigated the Complaint filed by re\n\non January 22, 2014, a copy of which is attached.\n\nMy investigation reveals:\n\n1. A longstanding dispute by the complainant with the\nQuincy Public Schools.\n\n2. The matters complained of are not materially different\nfrom previous complaints which have been investigated and\nSound to be without merit.\n\nAccordingly, I recommend the complaint be dismissed.‘\n(Emphasis added.)\n\nThe District denied each of BE vequests by stating that they were either\nvague or overbroad or repeated requests for records that were previously provided to him. This\noffice construes those responses as asserting that did not reasonably describe the\nrecords he is seeking, or denials under section Porasonee ILCS 140/3(g) (West 2014)),\nwhich provides, in pertinent part: \"Repeated requests from the same person for the same records\n\n\"Letter from] o the Public Access Counselor (September 4, 2015) (2015 PAC\n37368); e-mail from i to the Public Access Counselor (May 31, 2016) (2016 PAC 42164); e-mail\nfrom EM to the Public Access Counselor (June 30, 2016) (2016 PAC 42741). ENE grievance\ncomplaint makes several allegations regarding the transfer of assets from the District's Working Cash Fund.\nUniform Grievance 2:260 from [EEE to Joel Murphy, Complaint Manager, Quincy Public School District\n\nthat are unchanged or identical to records previously provided or properly denied under this Act\nshall be deemed unduly burdensome under this provision.”\n\nThis office forwarded a copy of each of [EEE Requests for Review to\nthe District and asked the District to explain its responses to SM requests. The District\nprovided written explanations to this office. P| submitted replies.\n\nDETERMINATION\n\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2014)) provides that \"[a}ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nHowever, \"[a] requester is entitled only to records that an agency has in fact chosen to create and\nretain.\" Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982).\n\nFOIA \"is not intended to compel public bodies to interpret or advise requesters as to the meaning\nor significance of the public records.\" 5 ILCS 140/3.3 (West 2014); see also Kenyon v. Garrels,\n184 Ill. App. 3d 28, 32, 540 N.E.2d 11, 13 (4th Dist. 1989) (a public body is not required to\nanswer questions or create records in response to a FOIA request).\n\nWith respect to any responsive records of \"previous complaints,\" in a telephone\ncall with an Assistant Attorney General (AAG) in the Public Access Bureau, the District's\nattorney, Mr. David G. Penn, clarified that the \"previous complaints\" Mr. Murphy referenced in\nhis March 3, 2014, letter were a general history of communications from EEE including\nin person meetings with {ME he was not referring to any specific written complaints.\nOn December 1, 2016, this office asked [J whether he submitted to the District any\nwritten complaints that he is seeking from the District.’ Without directly answering that\nquestion I esponded that he had two letters referring to previous complaints, which\nhe forwarded to this office.© Upon review, EEE provided this office with four letters\ndated between March 26, 2012, and June 25, 2012, which consist of correspondence between an\nattorney for SMM and an attorney for the District, and correspondence from an attorney\nfor ME to the Illinois State Board of Education, none of which refer to any written\n\ncomplaints from EM to the District.\n\nDistrict did not previously conduct a formal investigation related to its history of\ncommunications with —. and that no investigation reports were written. This office\nhas not received any information from which we could conclude that Mr. Murphy was referring\nto any particular records of \"previous complaints” in his May 3, 2014, letter. Nor does the\navailable information indicate that the District possesses any \"investigation reports\" responsive\nto HE request. This office also notes that to the extent that HE equests\ncould be construed as asking the District to interpret Mr. Murphy's May 3, 2014, letter and\nanswer questions regarding the meaning of the letter, FOIA does not require the District to\ninterpret records or answer questions. See 5 ILCS 140/3.3 (West 2014).\n\nAlthough the District's responses to J requests may have been clearer,\nfor the reasons explained above, this office concludes that the District's responses to\ndid not violate FOIA.\n\nThe Public Access Counselor has determined that resolution of these matters do\nnot require the issuance of a binding opinion. These files are closed. If you have any questions,\n\nplease contact me at 312-814-5201 or at the Chicago address listed on the first page of this letter.\n\nEDIE STEINBERG\nAssistant Attorney General\nPublic Access Bureau\n\n37368 42164 42741 f 3d complete sd"}
{"id":866,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-08-25","case_number":null,"request_numbers":["37541"],"title":"Park Ridge-Niles SD 64 improperly redacted teacher disciplinary settlement records","filename":"37541, issued August 25, 2016.pdf","rel_path":null,"word_count":2531,"summary":"The requester sought a settlement agreement and remedial warning regarding a tenured teacher, but the School District redacted information citing various FOIA exemptions. The PAC determined the District improperly redacted portions of the records and instructed them to release the documents with only student names redacted.","plain_summary":"A reporter requested records regarding a teacher's disciplinary settlement, but the school district blacked out too much information. The Attorney General's office ruled that the district must release the records, only redacting the names of students to protect their privacy. This ensures the public can understand the reasons for the settlement while keeping student identities private.","holding":"The School District improperly redacted information from the requested settlement agreement and remedial warning.","legal_question":"Whether the School District properly applied FOIA exemptions to redact information from a settlement agreement and remedial warning concerning a tenured teacher.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)"],"public_body":"Park Ridge-Niles Community Consolidated School District No. 64","requesting_party":"Ms. Jennifer Johnson (Pioneer Press/Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The records concern a settlement agreement and remedial warning issued to a tenured teacher.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.20/37541%2C%20issued%20August%2025%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["settlement agreement","teacher discipline","personnel records","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Jennifer Johnson\n\nPioneer Press/Chicago Tribune\n[street address redacted for site publication -- see original PDF]\njjohnson@pioneerlocal.com\n\nVia electronic mail\n\nMr. Joe Mahr\n\nChicago Tribune\n\n505 Northwest Avenue\nNorthlake, Illinois 60164\njmahr@tribpub.com\n\nVia electronic mail\nMr. Steven M. Richart\n\nHodges Loizzi Eisenhammer Rodick & Kohn LLP\n\n3030 Salt Creek Lane, Suite 202\nArlington Heights, Illinois 60005\nsrichart@hlerk.com\n\nRE: FOIA Request for Review — 2015 PAC 37541\nDear Ms. Johnson, Mr. Mahr, and Mr. Richart:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that Park Ridge-Niles Community Consolidated School District\nNo. 64 (School District) improperly redacted certain information from the records responsive to\nMs. Jennifer Johnson's September 2, 2015, FOIA request. :\n\nOn that date, Ms. Johnson submitted a FOIA request to the School District\nseeking copies of a settlement agreement and notice of remedial warning regarding a tenured\nteacher. On September 10, 2015, the School District provided those records to Ms. Johnson, but\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Hlinois, 60601 - 312) 814-3000 + TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\n\nSTATE OF ILLINOIS\n\nAugust 25, 2016\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr\n\nMr. Steven M. Richart\nAugust 25, 2016\n\nPage 2\n\nredacted certain information pursuant to sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA (5 ILCS\n140/7(1)(a), (1)(b), (1)(c) (West 2015 Supp.)) and section 7.5(r) of FOIA (5 ILCS 140/7.5(r)\n(West 2015 Supp.)).! In conjunction with section 7(1)(a), the School District cited the Illinois\nSchool Student Records Act (ISSRA) (105 ILCS 10/1 ef seq. (West 2014)) and the Family\nEducational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g (2012)).\n\nOn September 17, 2015, Ms. Johnson submitted the above-captioned Request for\nReview alleging that the settlement agreement and warning notice were overly redacted and\nnoted, with respect to the assertion of sections 7(1)(a) and 7.5(r), that her request concerned a\nteacher rather than students. On September 25, 2015, the Public Access Bureau forwarded a\ncopy of the Request for Review to the School District and requested a written explanation of its\nredactions, together with unredacted copies of the responsive records for our confidential review.\n\nOn October 7, 2015, the School District provided this office with those records\nand a written response asserting that the redactions were necessary to avoid the identification of\ntwo students. Ms. Johnson did not reply. :\n1\n\nDETERMINATION |\n\nFOIA provides that \"[a]l] records in the custody or possession of a public body\nare presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014). A public body\n\"has the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2014).\n\nSection 7.5(r) of FOIA exempts from disclosure \"[iJnformation prohibited from\nbeing disclosed by [ISSRA].\" Additionally, section 7(1)(a) of FOIA permits a public body to\nwithhold \"[iJnformation specifically prohibited from disclosure by federal or State law or rules\nand regulations implementing federal or State law.\" The School District cited ISSRA as the\nState law specifically prohibiting disclosure of students' identifying information. Section 6 of\nISSRA (105 ILCS 10/6 (West 2014)) generally prohibits disclosure of \"school student records\"\nexcept as permitted under that section. ISSRA defines \"school student record\" to mean \"any\nwriting or other recorded information concerning a student and by which a student may be\nindividually identified, maintained by a school or at its direction or by an employee of a school,\nregardless of how or where the information is stored.\" (Emphasis added.) 105 ILCS 10/2(d)\n(West 2014).\n\n' Ms. Johnson's Request for Review did not contest the School District's redaction of signatures or\nan employee's home address under sections 7(1)(b) and 7(1)(c) of FOIA.\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr\nMr. Steven M. Richart !\nAugust 25, 2016\n\nPage 3\n\nThe Illinois Supreme Court has held that ISSRA does not prohibit the disclosure\nof records concerning students provided that information identifying individual students is\nredacted. Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373\n(1989). There, parents of students requested standardized test scores pursuant to FOIA, and the\nSupreme Court held that \"[a] masked record, which deletes individual identifying information,\ndoes not fail within the definition of a school student record, and is not prohibited from\ndisclosure under [ISSRA].\" Bowie, 128 IIL.2d at 379; see also Human Rights Authority of State\nof Illinois Guardianship and Advocacy Comm'n by Aune v. Miller, 124 Ill. App. 3d 701, 704\n(1984) (ISSRA does not prohibit disclosure of records stripped of information identifying\nindividual students in special education program); Ill. Att'y Gen. Pub. Acc. Op. No. 12-014,\nissued December 111, 2012, at 9 (\"[I]f information identifying a student or students is removed\nfrom a record, the record is no longer a 'school student record’ which is prohibited from\ndisclosure by the [I]SSRA.\"). Thus, if information identifying students is redacted from a school\nstudent record, ISSRA does not prohibit disclosure of the remaining portions of the record.”\n\n!\n\nIn its response to the allegations in the Request for Review, the School District\nasserts that it redacted only the information necessary to preclude identifying two students.\nCiting Bowie and Garlick v. Oak Park and River Forest High School District No. 200, 389 Il.\nApp. 3d 306 (1st Dist. 2009), the School District notes that ISSRA does not apply solely to\nrecords in which a student is identified, but to records in which a student \"may be individually\nidentified[.]\" (Emphasis added.) 105 ILCS 10/2(d) (West 2014).\n\ni\n\nAlthough Ms. Johnson requested records regarding a teacher, our review\nconfirmed that the responsive records do individually identify two School District students.\nTherefore, the responsive records appear to constitute school student records subject to ISSRA.\nHowever, section 2.20 of FOIA (5 ILCS 140/2.20 (West 2014)) provides that \"[a]l] settlement\nagreements entered into by or on behalf of a public body are public records subject to inspection\nand copying by the public,\" subject only to the redaction of discrete information that is exempt\nfrom disclosure under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.)). The following\ncolloquy between Representative Bill Black and Representative Michael Madigan, the House\nsponsor of the bill, during the House debate on Senate Bill 189 (which, as Public Act 96-542,\neffective January 1, 2010, added section 2.20 of FOIA), explains the underlying problem that the\ndisclosure requirements of section 2.20 of FOIA were intended to address:\n\n?To the same extent that redacting individually identifiable information removes a record from the\n\"school student record” classification under ISSRA, redacting individually-identifiable information removes a\nrecord from the \"education records\" classification under FERPA. 20 U.S.C. §1232g(5)(A) (West 2014). See\nUnincorporated Operating Division of Indiana Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d 893,\n909 (Ind. App. 2003) (holding that if records involving students \"were properly redacted to eliminate any\nidentifiable student information, they would not be protected by FERPA.\"). ,\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr '\nMr. Steven M. Richart '\nAugust 25, 2016\nPage 4\n\nBlack: Okay, settlement agreements entered into, and this has long\nbeen a bone of contention, a school district, a city, a township, a\ncounty, whatever[.]\n\n’\n’\nt\nee\nl\n\nThey reach an agreement on a lawsuit. They don't go to ‘court.\nThey settle for an amount of money, and this [has] often|driven the\ntaxpayer as well as the media gatekeepers crazy. Well, that did..\nhow much did it cost? Well, we don't have to tell you that. We _\ncan't tell you that because part of the agreement was that! neither\nside 'would disclose what we paid, but yet the taxpayer says, well,\nyou paid them, literally, even though you have an insurance policy,\nyou paid them with my tax money. What do you mean Tcan't\n\ntell... I can't be told what you settled the case for. If] understand\n\nwhat You're saying, that settlement would now by FOlable.\n\nMadigan: The answer is yes. (Emphasis added.) Rematks of Rep.\nBlack and Rep. Madigan, May 27, 2009, House Debate on Senate\nBill No. 189, at 104-105.\ni\nIn addition, this colloquy between Representative Michael Tryon and\nRepresentative Madigan evinces the General Assembly's intention to include settlement\n\nagreements that have been sealed by court order or that contain personal information:\n\nTyron: Speaker Madigan[,] having been a former county board\nchairman, we were faced many times with FOIA requests and\nsometimes difficult FOIA requests and one of the things that was\nawful difficult was in the cases of settlements of court cases. In\nthe settlement of a court case, there were times where the plaintiff\nwas requesting that there be * * * nondisclosure. It could have\nbeen a sexual harassment case; it could have been certain types of\ncases where there was a need to disclose the names of the\nindividuals maybe even the amount of the settlement. If the court\napproves a settlement agreement that, as part of that settlement\nagreement, has nondisclosure, is that FOIAable?\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr |\nMr. Steven M. Richart i\nAugust 25, 2016\nPage 5\n\nMadigan: The answer is that [is] a public record that would be\nsubject to FOIA, but please understand that you do have,\nexceptions in the statutes such as privacy, deliberative process.\n\nTryon: So that doesn't...\n\nMadigan: Let me also add, you can do redactions\nTryon: Okay\n\nMadigan: You can do redactions\n\nTryon: So, * * * if part of the settlement was negotiated!and part\nof the negotiation of the settlement was approved bya court and in\none specific case I'm thinking of was a Federal Court and the\namount was nondisclosable. Would that be nondisclosed as well?\n\nMadigan: Again, it's subject to FOIA, but let me add that the\nintent of the Bill is not to look with favor upon governments\nentering into sealed records and sealed agreements in court. I\nmean, that's part of what we're trying to do here. We're trying to\n\nopen things up.\nTryon: Okay.\n\n1\n|\n|\nMadigan: And we certainly would not to be encouraging\ngovernments to enter into agreements like that. '\n\nTryon: Okay. And certainly, in cases of privacy then you're saying\nthat the exception would apply possibly to names and that type of\nthing? .\n\nMadigan: The answer is yes. Remarks of Rep. Madigan'and Rep.\n\nTryon, May 27, 2009, House Debate on Senate Bill No. 189 at\n\n109-111. ;\n\nThus, the General Assembly has balanced the public interest in transparency of\nsettlement agreements with individual privacy rights by providing in section 2.20 that discrete\ninformation that is exempt from disclosure under FOIA may be redacted from settlement\n\n\nMs. Jennifer Johnson\nMr. Joe Mahr\n\nMr. Steven M. Richart\nAugust 25, 2016\n\nPage 6\n\nagreements before disclosure. With respect to the interplay between section 2.20 and ISSRA, the\nPublic Access Bureau has previously determined that a settlement agreement involving a school\ndistrict must be disclosed if the student identifying information therein can be redacted ina\nmanner that masks the students’ identities. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 31101, issued\nJune 5, 2015, at 7 (a school district improperly withheld an entire settlement agreement that\ncould have been redacted to preclude student identifying information from being disclosed under\nsection 7(1)(a) based on ISSRA).?\n\nUpon review of the records in question, this office concludes that the School\nDistrict improperly‘redacted information that reveals the basis of the settlement agreement.\nAlthough the School District redacted only the information by which two students could be\nidentified in some manner, much of that information is necessary to understand the reason for the\nsettlement agreement. It generally does not comport with the purpose of section 2.20 to withhold\nthe nature of the claims at issue in a settlement agreement. See also section 2.5 of FOIA (5 ILCS\n140/2.5 (West 2014)) (\"All records relating to the obligation, receipt, and use of public funds of\nthe State, units of local government, and school districts are public records subject to inspection\nand copying by the public.\"). Because of the nature of the settlement agreement, it would be\nimpossible to disclose the underlying reason for it without indirectly identifying two students.\nThis office also notes that the minutes of the Board of Education's August 27, 2015, open\nmeeting provide that the Board voted unanimously in favor of the following action item, which\nlinked the settlement agreement to a student issue:\n\nIt was moved by Board member Paterno and seconded by\nBoard member Zimmerman that the Board of Education of Park\nRidge-Niles Community Consolidated School District No. 64\n\napprove the formal settlement agreement with\n\n3Although the School District referenced FERPA in its response to this office, it did not advance\nan argument demonstrating that any provision of FERPA specifically prohibits disclosure of the responsive records\nwith the students’ names redacted. Accordingly, it suffices to state that this office has previously determined that\nFERPA does not specifically prohibit de-identified records from disclosure within the meaning of section 7(1)(a) of\nFOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 33656, issued March 24, 2016, at 5 (\"FERPA does not specifically\nprohibit illinois from doing anything, so the University may not use the federal law as authority to withhold the\nrecords pursuant to’ section 7(1)(a) of FOIA.\" (quoting Chicago Tribune Company v. University of Illinois Board of\nTrustees 781 F. Supp. 2d 672, 676-77 (N.D. Ul. 2011), rev'd on other grounds, 680 F.3d 1001 (7th Cir. 2012)); Hl.\nAtt'y Gen. PAC Req. Rev. Ltr. 12590, issued April 11, 2011, at 2-3; Ill. Att'y Gen. PAC Req. Rev. Ltr. 11856,\nissued March 8, 2011, at 4-5.\n\n\nMs. Jennifer Johnson [\nMr. Joe Mahr\n\nMr. Steven M. Richart |\nAugust 25, 2016\n\nPage 7\n\non IE cxcrcing the resolution of both a student\nresidency dispute and employee discipline matter.“! ;\n\nUnder the unique circumstances of this matter, a balance must be struck between\nthe confidentiality provisions of ISSRA and sections 2.20 and 2.5 of FOIA to protect the\nstudents' identities while providing the necessary transparency as to the’ reasons for the\nsettlement agreement. Redacting the students’ names but disclosing the remainder of the records\nwould prevent the students from being directly identified while revealing the nature of the\nsettlement agreement. Accordingly, this office asks the School District to provide copies of the\nresponsive records to Ms. Johnson after redacting the students' names. .\n\n'\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If either party should have any questions, please\n\ncontact me at (217) 524-7958 or at the Springfield address on the first page of this letter. This\nletter shall serve to close this matter. |\n\nVery truly yours,\n\nSHARI L. WEST\nAssistant Attorney General\n|\n1\nI\ni\ni\n\nPublic Access Bureau\n\n37541 f 71a improper 75r improper 220 improper sd\n\n“Board of Education of Community Consolidated Schoo] District 64, Meeting, August 27, 2015,\nMinutes 2. .\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A settlement agreement and remedial warning for a tenured teacher","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-37541/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Jennifer Johnson\n\nPioneer Press/Chicago Tribune\n[street address redacted for site publication -- see original PDF]\njjohnson@pioneerlocal.com\n\nVia electronic mail\n\nMr. Joe Mahr\n\nChicago Tribune\n\n505 Northwest Avenue\nNorthlake, Illinois 60164\njmahr@tribpub.com\n\nVia electronic mail\nMr. Steven M. Richart\n\nHodges Loizzi Eisenhammer Rodick & Kohn LLP\n\n3030 Salt Creek Lane, Suite 202\nArlington Heights, Illinois 60005\nsrichart@hlerk.com\n\nRE: FOIA Request for Review — 2015 PAC 37541\nDear Ms. Johnson, Mr. Mahr, and Mr. Richart:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that Park Ridge-Niles Community Consolidated School District\nNo. 64 (School District) improperly redacted certain information from the records responsive to\nMs. Jennifer Johnson's September 2, 2015, FOIA request.:\n\nOn that date, Ms. Johnson submitted a FOIA request to the School District\nseeking copies of a settlement agreement and notice of remedial warning regarding a tenured\nteacher. On September 10, 2015, the School District provided those records to Ms. Johnson, but\n\nredacted certain information pursuant to sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA (5 ILCS\n140/7(1)(a), (1)(b), (1)(c) (West 2015 Supp.)) and section 7.5(r) of FOIA (5 ILCS 140/7.5(r)\n(West 2015 Supp.)).! In conjunction with section 7(1)(a), the School District cited the Illinois\nSchool Student Records Act (ISSRA) (105 ILCS 10/1 ef seq. (West 2014)) and the Family\nEducational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g (2012)).\n\nOn September 17, 2015, Ms. Johnson submitted the above-captioned Request for\nReview alleging that the settlement agreement and warning notice were overly redacted and\nnoted, with respect to the assertion of sections 7(1)(a) and 7.5(r), that her request concerned a\nteacher rather than students. On September 25, 2015, the Public Access Bureau forwarded a\ncopy of the Request for Review to the School District and requested a written explanation of its\nredactions, together with unredacted copies of the responsive records for our confidential review.\n\nOn October 7, 2015, the School District provided this office with those records\nand a written response asserting that the redactions were necessary to avoid the identification of\ntwo students. Ms. Johnson did not reply.:\n1\n\nDETERMINATION |\n\nFOIA provides that \"[a]l] records in the custody or possession of a public body\nare presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014). A public body\n\"has the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2014).\n\nSection 7.5(r) of FOIA exempts from disclosure \"[iJnformation prohibited from\nbeing disclosed by [ISSRA].\" Additionally, section 7(1)(a) of FOIA permits a public body to\nwithhold \"[iJnformation specifically prohibited from disclosure by federal or State law or rules\nand regulations implementing federal or State law.\" The School District cited ISSRA as the\nState law specifically prohibiting disclosure of students' identifying information. Section 6 of\nISSRA (105 ILCS 10/6 (West 2014)) generally prohibits disclosure of \"school student records\"\nexcept as permitted under that section. ISSRA defines \"school student record\" to mean \"any\nwriting or other recorded information concerning a student and by which a student may be\nindividually identified, maintained by a school or at its direction or by an employee of a school,\nregardless of how or where the information is stored.\" (Emphasis added.) 105 ILCS 10/2(d)\n(West 2014).\n\n' Ms. Johnson's Request for Review did not contest the School District's redaction of signatures or\n\nThe Illinois Supreme Court has held that ISSRA does not prohibit the disclosure\nof records concerning students provided that information identifying individual students is\nredacted. Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373\n(1989). There, parents of students requested standardized test scores pursuant to FOIA, and the\nSupreme Court held that \"[a] masked record, which deletes individual identifying information,\ndoes not fail within the definition of a school student record, and is not prohibited from\ndisclosure under [ISSRA].\" Bowie, 128 IIL.2d at 379; see also Human Rights Authority of State\nof Illinois Guardianship and Advocacy Comm'n by Aune v. Miller, 124 Ill. App. 3d 701, 704\n(1984) (ISSRA does not prohibit disclosure of records stripped of information identifying\nindividual students in special education program); Ill. Att'y Gen. Pub. Acc. Op. No. 12-014,\nissued December 111, 2012, at 9 (\"[I]f information identifying a student or students is removed\nfrom a record, the record is no longer a 'school student record’ which is prohibited from\ndisclosure by the [I]SSRA.\"). Thus, if information identifying students is redacted from a school\nstudent record, ISSRA does not prohibit disclosure of the remaining portions of the record.”\n\n!\n\nIn its response to the allegations in the Request for Review, the School District\nasserts that it redacted only the information necessary to preclude identifying two students.\nCiting Bowie and Garlick v. Oak Park and River Forest High School District No. 200, 389 Il.\nApp. 3d 306 (1st Dist. 2009), the School District notes that ISSRA does not apply solely to\nrecords in which a student is identified, but to records in which a student \"may be individually\nidentified[.]\" (Emphasis added.) 105 ILCS 10/2(d) (West 2014).\n\ni\n\nAlthough Ms. Johnson requested records regarding a teacher, our review\nconfirmed that the responsive records do individually identify two School District students.\nTherefore, the responsive records appear to constitute school student records subject to ISSRA.\nHowever, section 2.20 of FOIA (5 ILCS 140/2.20 (West 2014)) provides that \"[a]l] settlement\nagreements entered into by or on behalf of a public body are public records subject to inspection\nand copying by the public,\" subject only to the redaction of discrete information that is exempt\nfrom disclosure under section 7 of FOIA (5 ILCS 140/7 (West 2015 Supp.)). The following\ncolloquy between Representative Bill Black and Representative Michael Madigan, the House\nsponsor of the bill, during the House debate on Senate Bill 189 (which, as Public Act 96-542,\neffective January 1, 2010, added section 2.20 of FOIA), explains the underlying problem that the\ndisclosure requirements of section 2.20 of FOIA were intended to address:\n\n?To the same extent that redacting individually identifiable information removes a record from the\n\"school student record” classification under ISSRA, redacting individually-identifiable information removes a\nrecord from the \"education records\" classification under FERPA. 20 U.S.C. §1232g(5)(A) (West 2014). See\nUnincorporated Operating Division of Indiana Newspapers, Inc. v. Trustees of Indiana University, 787 N.E.2d 893,\n909 (Ind. App. 2003) (holding that if records involving students \"were properly redacted to eliminate any\n\nBlack: Okay, settlement agreements entered into, and this has long\nbeen a bone of contention, a school district, a city, a township, a\ncounty, whatever[.]\n\n’\n’\nt\nee\nl\n\nThey reach an agreement on a lawsuit. They don't go to ‘court.\nThey settle for an amount of money, and this [has] often|driven the\ntaxpayer as well as the media gatekeepers crazy. Well, that did..\nhow much did it cost? Well, we don't have to tell you that. We _\ncan't tell you that because part of the agreement was that! neither\nside 'would disclose what we paid, but yet the taxpayer says, well,\nyou paid them, literally, even though you have an insurance policy,\nyou paid them with my tax money. What do you mean Tcan't\n\ntell... I can't be told what you settled the case for. If] understand\n\nwhat You're saying, that settlement would now by FOlable.\n\nMadigan: The answer is yes. (Emphasis added.) Rematks of Rep.\nBlack and Rep. Madigan, May 27, 2009, House Debate on Senate\nBill No. 189, at 104-105.\ni\nIn addition, this colloquy between Representative Michael Tryon and\nRepresentative Madigan evinces the General Assembly's intention to include settlement\n\nagreements that have been sealed by court order or that contain personal information:\n\nTyron: Speaker Madigan[,] having been a former county board\nchairman, we were faced many times with FOIA requests and\nsometimes difficult FOIA requests and one of the things that was\nawful difficult was in the cases of settlements of court cases. In\nthe settlement of a court case, there were times where the plaintiff\nwas requesting that there be * * * nondisclosure. It could have\nbeen a sexual harassment case; it could have been certain types of\ncases where there was a need to disclose the names of the\n\nMadigan: The answer is that [is] a public record that would be\nsubject to FOIA, but please understand that you do have,\nexceptions in the statutes such as privacy, deliberative process.\n\nTryon: So that doesn't...\n\nMadigan: Let me also add, you can do redactions\nTryon: Okay\n\nMadigan: You can do redactions\n\nTryon: So, * * * if part of the settlement was negotiated!and part\nof the negotiation of the settlement was approved bya court and in\none specific case I'm thinking of was a Federal Court and the\namount was nondisclosable. Would that be nondisclosed as well?\n\nMadigan: Again, it's subject to FOIA, but let me add that the\nintent of the Bill is not to look with favor upon governments\nentering into sealed records and sealed agreements in court. I\nmean, that's part of what we're trying to do here. We're trying to\n\nopen things up.\nTryon: Okay.\n\n1\n|\n|\nMadigan: And we certainly would not to be encouraging\ngovernments to enter into agreements like that. '\n\nTryon: Okay. And certainly, in cases of privacy then you're saying\nthat the exception would apply possibly to names and that type of\nthing?.\n\nMadigan: The answer is yes. Remarks of Rep. Madigan'and Rep.\n\nTryon, May 27, 2009, House Debate on Senate Bill No. 189 at\n\n109-111.;\n\nThus, the General Assembly has balanced the public interest in transparency of\nsettlement agreements with individual privacy rights by providing in section 2.20 that discrete\n\nagreements before disclosure. With respect to the interplay between section 2.20 and ISSRA, the\nPublic Access Bureau has previously determined that a settlement agreement involving a school\ndistrict must be disclosed if the student identifying information therein can be redacted ina\nmanner that masks the students’ identities. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 31101, issued\nJune 5, 2015, at 7 (a school district improperly withheld an entire settlement agreement that\ncould have been redacted to preclude student identifying information from being disclosed under\nsection 7(1)(a) based on ISSRA).?\n\nUpon review of the records in question, this office concludes that the School\nDistrict improperly‘redacted information that reveals the basis of the settlement agreement.\nAlthough the School District redacted only the information by which two students could be\nidentified in some manner, much of that information is necessary to understand the reason for the\nsettlement agreement. It generally does not comport with the purpose of section 2.20 to withhold\nthe nature of the claims at issue in a settlement agreement. See also section 2.5 of FOIA (5 ILCS\n140/2.5 (West 2014)) (\"All records relating to the obligation, receipt, and use of public funds of\nthe State, units of local government, and school districts are public records subject to inspection\nand copying by the public.\"). Because of the nature of the settlement agreement, it would be\nimpossible to disclose the underlying reason for it without indirectly identifying two students.\nThis office also notes that the minutes of the Board of Education's August 27, 2015, open\nmeeting provide that the Board voted unanimously in favor of the following action item, which\nlinked the settlement agreement to a student issue:\n\nIt was moved by Board member Paterno and seconded by\nBoard member Zimmerman that the Board of Education of Park\nRidge-Niles Community Consolidated School District No. 64\n\napprove the formal settlement agreement with\n\n3 Although the School District referenced FERPA in its response to this office, it did not advance\nan argument demonstrating that any provision of FERPA specifically prohibits disclosure of the responsive records\nwith the students’ names redacted. Accordingly, it suffices to state that this office has previously determined that\nFERPA does not specifically prohibit de-identified records from disclosure within the meaning of section 7(1)(a) of\nFOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 33656, issued March 24, 2016, at 5 (\"FERPA does not specifically\nprohibit illinois from doing anything, so the University may not use the federal law as authority to withhold the\nrecords pursuant to’ section 7(1)(a) of FOIA.\" (quoting Chicago Tribune Company v. University of Illinois Board of\nTrustees 781 F. Supp. 2d 672, 676-77 (N.D. Ul. 2011), rev'd on other grounds, 680 F.3d 1001 (7th Cir. 2012)); Hl.\nAtt'y Gen. PAC Req. Rev. Ltr. 12590, issued April 11, 2011, at 2-3; Ill. Att'y Gen. PAC Req. Rev. Ltr. 11856,\n\non IE cxcrcing the resolution of both a student\nresidency dispute and employee discipline matter.“!;\n\nUnder the unique circumstances of this matter, a balance must be struck between\nthe confidentiality provisions of ISSRA and sections 2.20 and 2.5 of FOIA to protect the\nstudents' identities while providing the necessary transparency as to the’ reasons for the\nsettlement agreement. Redacting the students’ names but disclosing the remainder of the records\nwould prevent the students from being directly identified while revealing the nature of the\nsettlement agreement. Accordingly, this office asks the School District to provide copies of the\nresponsive records to Ms. Johnson after redacting the students' names..\n\n'\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If either party should have any questions, please\n\ncontact me at (217) 524-7958 or at the Springfield address on the first page of this letter. This\nletter shall serve to close this matter. |\n\nVery truly yours,\n\nSHARI L. WEST\nAssistant Attorney General\n|\n1\nI\ni\ni\n\nPublic Access Bureau\n\n37541 f 71a improper 75r improper 220 improper sd\n\n“Board of Education of Community Consolidated Schoo] District 64, Meeting, August 27, 2015,\nMinutes 2.."}
{"id":867,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-31","case_number":null,"request_numbers":["38669"],"title":"Proper University properly withheld internal audit report under exemption 7(1)(c)","filename":"38669, issued March 31, 2016.pdf","rel_path":null,"word_count":237,"summary":"The requester sought records from a public body, and the Public Access Counselor issued a determination letter regarding the request. The letter serves as the formal notification of the PAC's resolution of the Request for Review.","plain_summary":"The requester sought a copy of an internal audit report about a contractor's compliance with contract-timeline requirements, which a public college withheld as an internal-audit record. The requester argued that because the college had previously furnished the audit to its accreditation commission, the college improperly granted the commission an exclusive right to the record and waived the internal-audit exemption. The PAC determined the record was properly exempt as an internal audit, that the college's compulsory, confidentiality-protected disclosure to the accreditation commission did not give it any right to disseminate the record, and that no waiver occurred; the college's withholding did not violate FOIA.","holding":"","legal_question":"Whether the public body properly invoked FOIA exemptions to withhold requested records.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Proper University","requesting_party":"Kirk Allen (Illinois Leaks)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request involved the disclosure of records that the public body had incorrectly claimed were exempt under the personal privacy exemption.","ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Internal-audits/38669%2C%20issued%20March%2031%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA","privacy exemption","public records","denial of access"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"\f\f\f\fJedlicka,  Kathleen\n\nFrom:    \n\nSent\n\nTo:\n\nCc:\n\nSubject: \n\nAttachments:  \n\nJedlicka,  Kathleen\n\nThursday,  March 31,  2016 4: 03 PM\nkirk @illinoisleaks.com'; ' telliot@rathjewoodward. corn'\nOlson,  Neil\n\nPAC Request\n38669 f 3a 71m proper univ.pdf\n\nfor Review 38669\n\nPlease find the attached correspondence from MG Olson.  Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\nOffice of the Attorney General,  Lisa Madigan\n500 South 2nd Street\n\nSpringfield,  IL 62706\n\nE- MAIL CONFIDENTIALITY NOTICE: This electronic mail message,  including any attachments,  is for the intended recipient( s)\nonly.  This e- mail and any attachments might contain information that is confidential,  legally privileged or otherwise protected or\nexempt from disclosure under applicable law.  If you are not a named recipient, or if you are named but believe that you received\nthis e- mail\nin error,  please notify the sender immediately by telephone or return e- mail and promptly delete this e- mail and any\nattachments and copies thereof from your system.  If you are not the intended recipient,  please be aware that any copying,\ndistribution, dissemination,  disclosure or other use of this e- mail and any attachments is unauthorized and prohibited.  Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General.  Thank you for your cooperation.\n\n15\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"The Illinois Attorney General's Public Access Bureau sent a cover email forwarding correspondence about a PAC request (number 38669) to the requester and another recipient. The email does not state any conclusion, instruction, or outcome regarding the request.","card_headline":"University records claimed exempt under personal privacy","full_text_pre_backfill":"Jedlicka, Kathleen\n\nFrom: \n\nSent\n\nTo:\n\nCc:\n\nSubject: \n\nAttachments: \n\nJedlicka, Kathleen\n\nThursday, March 31, 2016 4: 03 PM\nkirk @illinoisleaks.com'; ' telliot@rathjewoodward. corn'\nOlson, Neil\n\nPAC Request\n38669 f 3a 71m proper univ.pdf\n\nfor Review 38669\n\nPlease find the attached correspondence from MG Olson. Please contact us if you have any questions. Thank you.\n\nKatie Jedlicka\n\nAdministrative Clerk\n\nPublic Access Bureau\nOffice of the Attorney General, Lisa Madigan\n500 South 2nd Street\n\nSpringfield, IL 62706\n\nE- MAIL CONFIDENTIALITY NOTICE: This electronic mail message, including any attachments, is for the intended recipient(s)\nonly. This e- mail and any attachments might contain information that is confidential, legally privileged or otherwise protected or\nexempt from disclosure under applicable law. If you are not a named recipient, or if you are named but believe that you received\nthis e- mail\nin error, please notify the sender immediately by telephone or return e- mail and promptly delete this e- mail and any\nattachments and copies thereof from your system. If you are not the intended recipient, please be aware that any copying,\ndistribution, dissemination, disclosure or other use of this e- mail and any attachments is unauthorized and prohibited. Your receipt\nof this message is not intended to waive any applicable privilege or claim of confidentiality, and any prohibited or unauthorized\ndisclosure is not binding on the sender or the Office of the Illinois Attorney General. Thank you for your cooperation.\n\n15","disposition_pre_fix":"violation_found","human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-38669/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nMarch 31, 2016\n\nVia electronic mail\nMr. Kirk Allen\nP.O. Box 593\n[address redacted for site publication -- see original PDF]\nKirk@illinoisleaks.com\n\nVia electronic mail\nMr. Timothy D. Elliot\nRathje Woodward LLC\n300 East Roosevelt Road, Suite 300\nWheaton, Illinois 60187\ntelliott@rathjewoodward.com\n\nRE: FOIA Request for Review - 2015 PAC 38669\n\nDear Mr. Allen and Mr. Elliot:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons that follow, the Public Access Bureau concludes that College of DuPage (College) did not improperly withhold an internal audit report in response to Mr. Kirk Allen's November 6, 2015, FOIA request.\n\nOn that date, Mr. Allen submitted a FOIA request to the College, which included a request for a \"[c]opy of the Internal Audit regarding Herricane Graphics most recent contract found to have been in violation of the timeline requirements.\"1 On November 13, 2015, the College denied that part of the request under section 7(1)(m) of FOIA (5 ILCS 140/7(1)(m) (West 2014), as amended by Public Act 99-298, effective August 6, 2015). In his Request for Review, Mr. Allen alleged that because the College had previously furnished a copy of the audit to the Higher Learning Commission (Commission), it violated section 3(a) of FOIA (5 ILCS 140/3(a) (West 2014)) by improperly granting the Commission an exclusive right to access that public record.\n\n1 E-mail from Kirk Allen to Barbara Mitchell, College of DuPage (November 6, 2015).\n\nOn November 25, 2015, we forwarded a copy of the Request for Review to the College and requested that the College provide us with a copy of the withheld responsive record for our confidential review, as well as a detailed explanation of the factual and legal bases for the assertion of section 7(1)(m) of FOIA. We also asked the College to address Mr. Allen's contention that the College granted the Commission an exclusive right to the record at issue and whether the disclosure to the Commission waived any privilege or protection afforded to the audit report.\n\nOn December 9, 2015, the College provided the withheld record for our review together with a written response, which included an affidavit from its Director of Internal Audit regarding the preparation of the record and an affidavit from its Vice President for Planning and Institutional Effectiveness regarding the Commission's accreditation process. The College provided a redacted response for forwarding to Mr. Allen. We forwarded the redacted response to Mr. Allen on December 22, 2015; he replied on December 26, 2015.\n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA permits a public body to withhold:\n\nCommunications between a public body and an attorney or auditor representing the public body that would not be subject to discovery in litigation, and materials prepared or compiled by or for a public body in anticipation of a criminal, civil or administrative proceeding upon the request of an attorney advising the public body, and materials prepared or compiled with respect to internal audits of public bodies. (Emphasis added.)\n\nThe College described the preparation of the record by its Director of Internal Audit and we have reviewed its contents, which an internal auditor compiled during a review of a process used by the College. Mr. Allen does not contend that the record does not fall within the scope of section 7(1)(m), but rather states that while he \"agree[s] with the basic assertion pertaining to internal audits not being subject to FOIA,\" the circumstances of the record's disclosure to the Commission make it subject to disclosure under FOIA.2 Accordingly, we conclude that the record is within the scope of section 7(1)(m), and turn to Mr. Allen's allegation that the College violated section 3(a) of FOIA by granting the Commission an exclusive right to access the record.\n\n2 E-mail from Kirk Allen to Kathleen Jedlicka, [Public Access Bureau] (December 26, 2015).\n\nSection 3(a) of FOIA\n\nSection 3(a) of FOIA provides:\n\nEach public body shall make available to any person for inspection or copying all public records, except as otherwise provided in Sections 7 and 8.5 of this Act. Notwithstanding any other law, a public body may not grant to any person or entity, whether by contract, license, or otherwise, the exclusive right to access and disseminate any public record as defined in this Act. (Emphasis added.)\n\nMr. Allen contends that when the College provided the record at issue to the Commission as part of the College's accreditation process, it granted the Commission \"the exclusive right to access and disseminate any public record.\" In its response and through the affidavit of the Vice President for Planning and Institutional Effectiveness, the College explained that its disclosure of the internal audit record to the Commission was effectively compulsory under the Commission's process for determining the College's accreditation status, and that it took steps to maintain the confidentiality of the record by allowing the Commission's accreditation team to review internal audit reports only while on campus.\n\nWith respect to the second sentence of section 3(a), the College argues that statutory language regarding \"the exclusive right to access and disseminate any public record\" is conjunctive, not disjunctive, and must involve the grant of the right to \"access and disseminate.\" (Emphasis added.) This office agrees, and moreover observes that in the context of the entire section 3(a), which concerns the duties of public bodies to make public records available for inspection and copying, the second sentence of section 3(a) describes the impermissible delegation of those duties to a third party by granting an exclusive right to access and disseminate public records. Based on the available information, while the College provided the Commission with limited access to the record in question,3 the College did not improperly delegate its duties under FOIA by providing the Commission with any right to disseminate this internal audit record, not to mention an exclusive right to do so. Accordingly, we conclude that the College did not violate section 3(a) of FOIA.4\n\n3 Mr. Allen cites a statement in a November 11, 2015, letter from the Acting Interim College President to the Commission as evidence that the Commission had physical control of a copy of the internal audit report, and that allegedly conflicts with the College's description of the access to the records. We need not resolve this dispute because it is undisputed that the Commission had access to the record at issue.\n\n4 In his reply to this office, Mr. Allen asserts that his argument is solely premised on section 3(a). However, he also appears to contend that the College waived its right to assert the 7(1)(m) exemption by providing the internal audit report to the Commission. \"The waiver rule must not be mechanically applied whenever there is disclosure of information, but, rather, requires consideration of the circumstances related to the disclosure, including the purpose and extent of the disclosure as well as the confidentiality surrounding the disclosure.\" Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202, 808 N.E.2d 56, 67 (1st Dist. 2004).\n\nAs described above, the College has asserted that disclosure of the record to the Commission was effectively compulsory as part of the accreditation process and that it took steps to protect the confidentiality of the record. Mr. Allen maintains that information from the internal audit report has been made public through the Commission's accreditation report, but does not describe any voluntary disclosure of the internal audit report itself by the College, such as in response to another FOIA request. In terms of disclosure of any information by the College, the November 11, 2015, letter from the Acting Interim College President to the Commission was a limited and discretionary disclosure of general information, namely that \"aspects of the RFP process did not appear to be in compliance with the College's procedures so [the internal auditor] advised [the former president] get a legal opinion as to whether the College should have accepted the proposal.\" See, e.g., American Civil Liberties Union v. Department of Defense, 752 F. Supp. 2d 361, 372 (S.D.N.Y. 2010) (\"discretionary decision to release a limited set of information does not waive FOIA protection for similar information that is not discretionarily released\"). Accordingly, based on these circumstances, we also conclude there was no waiver.\n\nThe 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 (217) 782-9078 or nolson@atg.state.il.us.\n\nVery truly yours,\n\nNEIL P. OLSON\nAssistant Attorney General\nPublic Access Bureau\n\n38669 f 3a 71m proper univ"}
{"id":868,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-02-25","case_number":null,"request_numbers":["38676"],"title":"Illinois Department of Human Services properly denied records under 7(1)(a) and 7(1)(dd)","filename":"38676, issued February 25, 2016.pdf","rel_path":null,"word_count":701,"summary":"The requester sought records from the Illinois Department of Human Services regarding their public aid assistance and eligibility, which the Department denied based on federal and state confidentiality laws. The PAC determined that the Department properly withheld the records because their disclosure is prohibited by law.","plain_summary":"A citizen requested their own public aid records from the Illinois Department of Human Services to verify that proper procedures were followed. The Department denied the request, citing laws that protect the confidentiality of public aid recipients. The Attorney General's office agreed with the Department, concluding that the law prohibits the release of these records for the requester's stated purpose.","holding":"The Illinois Department of Human Services properly denied the request for records concerning public aid assistance because such information is protected from disclosure by federal and state law.","legal_question":"Whether the Illinois Department of Human Services properly denied a FOIA request for public aid records under the exemptions provided in sections 7(1)(a) and 7(1)(dd) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(dd)"],"public_body":"Illinois Department of Human Services","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public aid records","subject_description":"The request concerned records related to the requester's receipt of public aid assistance and interactions with Department employees regarding eligibility.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_dd/38676%2C%20issued%20February%2025%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public aid","confidentiality","Department of Human Services","eligibility records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 25,  2016\n\nRE:  FOIA Request for Review — 2015 PAC 38676\n\nDear\n\nThis determination letter is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)).  For the reasons set forth below, the\nPublic Access Bureau concludes that no further action on this matter is warranted. \n\nOn November 12,  2015,  you submitted a FOIA request to the Illinois Department\nof Human Services ( Department)  seeking copies of records concerning your receipt of public aid\nassistance and interactions with certain Department employees regarding your eligibility to\ncontinue receiving public aid assistance.  On November 18,  2015,  the Department denied your\nrequest\nin its entirety citing sections 7( 1)( a)  and 7( 1)( dd)  of FOIA ( 5 ILCS 140/ 7( 1)( a), ( 1)( dd) \nWest 2014),  as amended by Public Act 99- 298,  effective August 6,  2015).  On November 18, \n2015,  you filed this Request for Review contesting the denial. \n\nSection 7( 1)( a)  of FOIA exempts from inspection and copying \"[ i] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\"  Here,  the Department cited a confidentiality provision of the\nMedicaid Act ( 42 U. S. C. § 1396a ( a)( 7)( A) ( West 2014)),  as the federal\nlaw that prohibited the\ndisclosure of the responsive records.  Section § 1396a ( a)( 7)( A)  of the Medicaid Act requires a\nState medical assistance plan to provide,\" safeguards which restrict the use or disclosure of\ninformation concerning applicants and recipients to purposes directly connected with ( i)  the\n\nadministration of the plan.\" \n\nSimilarly,  section 7( 1)( dd)  of FOIA exempts from disclosure, \"[ c] orrespondence\nand records ( i)  that may not be disclosed under Section 11- 9 of the Public Aid Code.\"  Section\n11- 9 of the Public Aid Code ( 305 ILCS 5/ 11- 9 ( West 2014))  provides,  in pertinent part: \n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\nenol Fast Main_ Carbondale. \n\n\fFebruary 25,  2016\nPage 2\n\nFor the protection of applicants and recipients,  the Illinois\nDepartment,  the county departments and local governmental units\nand their respective officers and employees are prohibited, * * * \nfrom disclosing the contents of any records,  files, papers and\ncommunications,  except for purposes directly connected with the\nadministration of public aid under this Code. \n\nThe plain language of section1396a ( a)( 7)( A)  of the Medicaid Act specifically prohibits the\nDepartment from disclosing information regarding applicants and recipients of a state medical\nassistance program,  such as Illinois Medicaid,  to anyone other than to individuals who need the\ninformation to administer the plan.  Likewise,  section 7( 1)( dd)  of FOIA and section 11- 9 of the\nPublic Aid Code exempts from disclosure records that concern applicants and recipients of\npublic aid,  except for purposes directly connected with the administration of public aid.  Your\nRequest\npolicies and procedures were followed in the processing of your case.  Your stated purpose is\nclearly not directly connected with the administration of Medicaid or public aid.  Accordingly, \nbecause the aforementioned federal and State laws specifically prohibit the Department\ndisclosing the records you are seeking,  we have determined that no further action is warranted. \n\nfor Review indicates that you are seeking the records because you want to ensure that all\n\nfrom\n\nThis letter serves to close this file.  If you have questions,  you may contact me at\n\n312)  814- 5383 or the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n38676 f no fi war sa\n\ncc: \n\nMs.  A.  Sobitan\n\nAssistant General Counsel\n\nIllinois Department of Human Services\n\n100 West Randolph Street,  Suite 6- 400\n\nChicago, \n\nIllinois 60601\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Public aid assistance records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-38676/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 25, 2016\n\nRE: FOIA Request for Review — 2015 PAC 38676\n\nDear\n\nThis determination letter is issued pursuant\n\nto section 9. 5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2014)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action on this matter is warranted. \n\nOn November 12, 2015, you submitted a FOIA request to the Illinois Department\nof Human Services (Department) seeking copies of records concerning your receipt of public aid\nassistance and interactions with certain Department employees regarding your eligibility to\ncontinue receiving public aid assistance. On November 18, 2015, the Department denied your\nrequest\nin its entirety citing sections 7(1)(a) and 7(1)(dd) of FOIA (5 ILCS 140/ 7(1)(a), (1)(dd) \nWest 2014), as amended by Public Act 99- 298, effective August 6, 2015). On November 18, \n2015, you filed this Request for Review contesting the denial. \n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" Here, the Department cited a confidentiality provision of the\nMedicaid Act (42 U. S. C. § 1396a (a)(7)(A) (West 2014)), as the federal\nlaw that prohibited the\ndisclosure of the responsive records. Section § 1396a (a)(7)(A) of the Medicaid Act requires a\nState medical assistance plan to provide,\" safeguards which restrict the use or disclosure of\ninformation concerning applicants and recipients to purposes directly connected with (i) the\n\nadministration of the plan.\" \n\nSimilarly, section 7(1)(dd) of FOIA exempts from disclosure, \"[ c] orrespondence\nand records (i) that may not be disclosed under Section 11- 9 of the Public Aid Code.\" Section\n11- 9 of the Public Aid Code (305 ILCS 5/ 11- 9 (West 2014)) provides, in pertinent part: \n\nFor the protection of applicants and recipients, the Illinois\nDepartment, the county departments and local governmental units\nand their respective officers and employees are prohibited, * * * \nfrom disclosing the contents of any records, files, papers and\ncommunications, except for purposes directly connected with the\nadministration of public aid under this Code. \n\nThe plain language of section1396a (a)(7)(A) of the Medicaid Act specifically prohibits the\nDepartment from disclosing information regarding applicants and recipients of a state medical\nassistance program, such as Illinois Medicaid, to anyone other than to individuals who need the\ninformation to administer the plan. Likewise, section 7(1)(dd) of FOIA and section 11- 9 of the\nPublic Aid Code exempts from disclosure records that concern applicants and recipients of\npublic aid, except for purposes directly connected with the administration of public aid. Your\nRequest\npolicies and procedures were followed in the processing of your case. Your stated purpose is\nclearly not directly connected with the administration of Medicaid or public aid. Accordingly, \nbecause the aforementioned federal and State laws specifically prohibit the Department\ndisclosing the records you are seeking, we have determined that no further action is warranted. \n\nfor Review indicates that you are seeking the records because you want to ensure that all\n\nfrom\n\nThis letter serves to close this file. If you have questions, you may contact me at\n\n312) 814- 5383 or the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n38676 f no fi war sa\n\ncc: \n\nMs. A. Sobitan\n\nAssistant General Counsel\n\nIllinois Department of Human Services\n\n100 West Randolph Street, Suite 6- 400\n\nChicago, \n\nIllinois 60601"}
{"id":869,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2015-12-18","case_number":null,"request_numbers":["38780"],"title":"Village of Arlington Heights properly withheld blueprints under section 7(1)(k)","filename":"38780, issued December 18, 2015.pdf","rel_path":null,"word_count":615,"summary":"The requester sought blueprints for specific condominium units from the Village of Arlington Heights, which the Village denied under FOIA section 7(1)(k). The PAC determined that the Village properly withheld the records because they constitute construction-related technical documents for a privately funded project.","plain_summary":"A resident requested building blueprints from the Village of Arlington Heights, but the Village refused to provide them, citing a law that protects construction documents for private projects. The Attorney General's office reviewed the request and agreed with the Village, finding that the building was privately funded and therefore exempt from disclosure. This means the Village was legally allowed to keep the blueprints private.","holding":"The Village of Arlington Heights did not improperly withhold the requested blueprints pursuant to section 7(1)(k) of FOIA.","legal_question":"Whether the Village of Arlington Heights properly invoked section 7(1)(k) of FOIA to withhold blueprints for a privately funded condominium building.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(k)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)"],"public_body":"Village of Arlington Heights","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(k)","subject_description":"The request sought blueprints for specific units in a privately funded condominium building.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_k/38780%2C%20issued%20December%2018%2C%202015.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["blueprints","construction documents","private funds","exemption 7(1)(k)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 18, 2015\n\nVia electronic mail\n\nRe: FOIA Request for Review- 2015 PAC 38780\n\n>\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action on this matter is warranted.\n\nOn October 27, 2015, you submitted a FOIA request to the Village of Arlington\nHeights (Village), seeking blueprints for units 205 and 305 at 1206 South New Wilke Road in\nArlington Heights. On November 2, 2015, the Village denied your request, citing section 7(1)(k)\nof FOIA (5 ILCS 140/7(1)(k) (West 2014), as amended by Public Act 99-298, effective August\n6, 2015). On November 25, 2015, you submitted a Request for Review to this office contesting\nthe Village's response to your FOIA request.\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014); see also Southern Ilinoisan v.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body “has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2014).\n\nSection 7(1)(k) exempts from disclosure:\n\nArchitects' plans, engineers’ technical submissions, and\nother construction related technical documents for projects not\nconstructed or developed in whole or in part with public funds\nand the same for projects constructed or developed with public\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 » TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 + TTY: (618) 529-6403 + Fax: (618) 529-6416\n\n\nDecember 18, 2015\nPage 2\n\nfunds, including but not limited to power generating and\ndistribution stations and other transmission and distribution\nfacilities, water treatment facilities, airport facilities, sport\nstadiums, convention centers, and all government owned, operated,\nor occupied buildings, but only to the extent that disclosure would\ncompromise security. (Emphasis added.)\n\nIn correspondence with this office, the Village confirmed that it \"checked with the\nBuilding and Planning Departments and as far as we know, no public funds were used to\nconstruct 1206 S New Wilke Rd, Arlington Heights.\"’ In a phone conversation with this office,\nyou confirmed that the structure that is the subject of your FOIA request is a private\ndevelopment.\n\nBased on its plain language, the Public Access Bureau previously has interpreted\nsection 7(1)(k) as exempting from disclosure: \"all construction-related technical documents\nrelating to projects that are paid for entirely with private funds.\" Ill. Att'y Gen. PAC Req. Rev.\nLtr. 10924, issued January 21, 2011. No information provided to this office indicates that any\npublic funds were used to develop the structure at 1206 South New Wilke Road, which your\nRequest for Review identifies as a condominium building. Therefore the Village did not\nimproperly withhold the requested blueprints, which are construction-related technical\ndocuments, pursuant to section 7(1)(k) of FOIA. Accordingly, we determine that no further\naction on this matter is warranted.\n\nIf you have any questions, you may contact me at the Springfield address on the\nfirst page of this letter. This letter serves to close this matter.\n\nVe\n\nBENJAMIN REED\nAssistant Attorney General\nPublic Access Bureau\n\n38780 fno fi war mun\n\nce: Via electronic mail\nMs. Lisa Farrington\nStaff Attorney\nVillage of Arlington Heights\n\n‘Correspondence from Lisa Farrington, Staff Attorney, Village of Arlington Heights, to Benjamin\nReed, Assistant Attorney General, Public Access Bureau (December 9, 2015).\n\n\nDecember 18, 2015\nPage 3\n\nIfarrington@vah.com\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Blueprints for condominium units","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-38780/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 18, 2015\n\nVia electronic mail\n\nRe: FOIA Request for Review- 2015 PAC 38780\n\n>\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action on this matter is warranted.\n\nOn October 27, 2015, you submitted a FOIA request to the Village of Arlington\nHeights (Village), seeking blueprints for units 205 and 305 at 1206 South New Wilke Road in\nArlington Heights. On November 2, 2015, the Village denied your request, citing section 7(1)(k)\nof FOIA (5 ILCS 140/7(1)(k) (West 2014), as amended by Public Act 99-298, effective August\n6, 2015). On November 25, 2015, you submitted a Request for Review to this office contesting\nthe Village's response to your FOIA request.\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2014); see also Southern Ilinoisan v.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body “has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n\nfunds, including but not limited to power generating and\ndistribution stations and other transmission and distribution\nfacilities, water treatment facilities, airport facilities, sport\nstadiums, convention centers, and all government owned, operated,\nor occupied buildings, but only to the extent that disclosure would\ncompromise security. (Emphasis added.)\n\nIn correspondence with this office, the Village confirmed that it \"checked with the\nBuilding and Planning Departments and as far as we know, no public funds were used to\nconstruct 1206 S New Wilke Rd, Arlington Heights.\"’ In a phone conversation with this office,\nyou confirmed that the structure that is the subject of your FOIA request is a private\ndevelopment.\n\nBased on its plain language, the Public Access Bureau previously has interpreted\nsection 7(1)(k) as exempting from disclosure: \"all construction-related technical documents\nrelating to projects that are paid for entirely with private funds.\" Ill. Att'y Gen. PAC Req. Rev.\nLtr. 10924, issued January 21, 2011. No information provided to this office indicates that any\npublic funds were used to develop the structure at 1206 South New Wilke Road, which your\nRequest for Review identifies as a condominium building. Therefore the Village did not\nimproperly withhold the requested blueprints, which are construction-related technical\ndocuments, pursuant to section 7(1)(k) of FOIA. Accordingly, we determine that no further\naction on this matter is warranted.\n\nIf you have any questions, you may contact me at the Springfield address on the\nfirst page of this letter. This letter serves to close this matter.\n\nVe\n\nBENJAMIN REED\nAssistant Attorney General\nPublic Access Bureau\n\n38780 fno fi war mun\n\nce: Via electronic mail\nMs. Lisa Farrington\nStaff Attorney\nVillage of Arlington Heights\n\n‘Correspondence from Lisa Farrington, Staff Attorney, Village of Arlington Heights, to Benjamin\n\nIfarrington@vah.com"}
{"id":870,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-06-30","case_number":null,"request_numbers":["38873"],"title":"Elmhurst SD 205 improperly withheld some emails under FOIA exemptions 7(1)(c) and 7(1)(f)","filename":"38873, issued June 30, 2016.pdf","rel_path":null,"word_count":2051,"summary":"The requester sought emails from a school district official regarding high school morning announcements, which the district denied under FOIA exemptions 7(1)(c) and 7(1)(f). The PAC determined the district failed to meet its burden of proof and improperly withheld the records, ordering their release with specific redactions.","plain_summary":"The requester sought emails between the school district superintendent and a high school principal, and between the district and a parent, concerning complaints about morning announcements, which the district withheld under the deliberative-process and personal-privacy exemptions. The PAC determined that most Superintendent-Principal emails were properly withheld as predecisional, but two reflecting a final decision were not, and that the parent's emails were not inter- or intra-agency communications and must be released with only the parent's name, contact information, and references to her children redacted. The district was directed to release the improperly withheld and redacted materials accordingly.","holding":"Elmhurst Community Unit School District 205 improperly denied the FOIA request with respect to two emails dated October 20, 2015, and the emails between the district and a parent, but properly withheld the remaining pre-decisional emails between the superintendent and principal.","legal_question":"Whether the school district met its burden of proof to withhold emails in their entirety under FOIA exemptions 7(1)(c) (personal privacy) and 7(1)(f) (preliminary drafts/notes).","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)"],"public_body":"Elmhurst Community Unit School District 205","requesting_party":"Ms. Lisa O'Halloran","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned emails from a school official regarding York High School morning announcements.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Members-of-the-public/38873%2C%20issued%20June%2030%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","school district","privacy exemption","redaction","burden of proof"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"ei\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJune 30,  2016\n\nVia electronic mail\n\nMs.  Lisa O' Halloran,  DT CDS\n\nDevelopmental Diagnostics\n\nEvaluation Resource Group\nlisa@ohalloranmail.com\n\nVia electronic mail\n\nMs.  Ellen Walsh\n\nFOIA Officer\n\nElmhurst Community Unit School District 205\n162 South York\n\n[street address redacted for site publication -- see original PDF]\nemwalsh @elmhurst205. org\n\nVia electronic mail\nMr. Brian P.  Crowley\nFranczek Radelet\n\n300 South Wacker Drive,  Suite 3400\n\nChicago,  Illinois 60606\n\nbpc@franczek.com\n\nRE:   FOIA Request\n\nfor Review— 2015 PAC 38873\n\nDear Ms.  O' Halloran,  Ms.  Walsh,  and Mr.  Crowley:\n\nThis determination letter is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).   For the reasons that follow,  the\n\nPublic Access Bureau concludes that Elmhurst Community Unit School District 205 ( School\nDistrict)  improperly denied Ms.  Lisa O'Halloran' s November 29,  2015,  FOIA request.\n\nOn that date,  Ms.  O'Halloran submitted a FOIA request to the School District\nseeking copies of all of\" Dr. Moyer' s emails between September 15,  2015 and November 24,\n\n500 South Second Street, Springfield,\nIllinois 62706 • (\n100 West Randolph Street, Chicago, Illinois, 60601 • (\n\n217) 782- 1090 •  TTY: ( 217) 785- 2771 • \nFax:( 217) 782- 7046\n312) 814- 3000 •  TTY: ( 312) 814- 3374 •  Fax:( 312) 814- 3806\n\nloot East Main, Carbondale,\n\nIllinois 62901 •(\n\n618) 529- 6400• TTY: ( 618) 529- 6403• Fax:( 618) 529- 6416\n\n\fMs.  Lisa O' Halloran\nMs.  Ellen Walsh\n\nMr. Brian Crowley\nJune 30,  2016\n\nPage 2\n\n2015,  concerning York High School Morning Announcements[.]\"\nSchool District denied the request in its entirety under sections 7( 1)( c),  and 7( 1)(\nILCS 140/ 7( 1)( c), (\n\nI On December 2,  2015,  the\nf) of FOIA ( 5\n1)( f) (West 2014),  as amended by Public Acts 99- 298,  effective August 6,\n\n2015).   On December 2,  2015,  this office received Ms.  O' Halloran' s Request\ndisputing the School District's response.\n\nfor Review\n\nOn December 10,  2015,  this office forwarded a copy of Ms.  O' Halloran' s Request\n\nfor Review to the School District and asked for copies of the withheld records and a detailed\nexplanation of its factual and legal bases for the asserted FOIA exemptions.   On January 7,  2016,\ncounsel for the School District provided a written response together with copies of the responsive\nrecords for our confidential review.  This response was forwarded to Ms.  O' Halloran,  who\nreplied on January 15,  2016.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\"   5 ILCS 140/ 1. 2 ( West 2014);  see Southern Illinoisan v.\nIllinois Dept.  of Public Health,  218 Ill.  2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1. 2 ( West 2014).\n\nSection 7( 1)( f) of FOIA\n\nThe School District asserts that the responsive e- mails are exempt\n\nfrom disclosure\n\nunder section 7( 1)(\n\nf) of FOIA,  which allows a public body to withhold:\n\nPreliminary drafts,  notes, recommendations,  memoranda\nand other records in which opinions are expressed,  or policies or\nactions are formulated,  except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body.\n\nThis exemption is intended to encourage government officials to openly and frankly discuss\nmatters of governmental concern in order to make informed policy decisions.  Harwood v.\nMcDonough,  344 III. App.  3d 242,  248 ( 1st Dist. 2003);  see also Kalven v.  City of Chicago,  2013\nIL App ( 1st)  121846, ¶ 24,  7 N. E. 3d 741,  748 ( 2013),  quoting Public Citizen,  Inc.  v.  Office of\n\n29, 2015).\n\nFOIA request from Lisa O'Halloran to Elmhurst Community Unit School District 205 ( November\n\n\fMs.  Lisa O' Halloran\n\nMs. Ellen Walsh\n\nMr. Brian Crowley\nJune 30,  2016\n\nPage 3\n\nManagement&  Budget,  598 F. 3d 865,  876 ( D. C.  Cir. 2010):  \" Only those portions of a\npredecisional document\nthat reflect the give and take of the deliberative process may be\nwithheld.\"  See also Klamath Water Users Protective Ass' n,  532 U. S.  1,  13,  121 S.  Ct.  1060,\n1069 ( 2001) ( communications with third parties that have independent\nbenefit from the public body' s final decision cannot be characterized as intra-agency\n\ninterests and that stand to\n\ncommunications).\n\nThis office has reviewed the responsive records,  which can be broadly categorized\n\nas e- mails between the School District Superintendent and the York Community High School' s\nprincipal,  and e- mails between the School District and a parent of one of the High School' s\nstudents.   In his response to this office,  counsel\nmails may be withheld under section 7( 1)( f), because \"[ a] ll of the emails include the individual\nparent's personal opinions and some include discussions between the Superintendent and the\nHigh School Principal where actions are formulated to address the concerns about the morning\nannouncements.\" z\n\nfor the School District argues that all of those e-\n\nMost of the e- mails between the Superintendent and the Principal discuss the\nconcerns expressed by the parent and how the School District should respond.   Based on our\nreview of the e- mails,  these records are pre- decisional\nthey were publicly cited or identified by the head of the School District.  Therefore,  we conclude\nthat they were properly withheld pursuant to section 7( 1)(\nf).  However,  two of the e- mails,  dated\nOctober 20,  2015,  reflect a final decision and therefore do not constitute pre- decisional\ndeliberative material.  Accordingly, the School District improperly withheld those e- mails\npursuant to section 7( 1)( t) of FOIA.\n\nin nature and there is no indication that\n\nThe e- mails exchanged between the School District and the parent,  however,\n\ninterests concerning the School District' s policy.  Thus,  the e- mails exchanged\n\ncontain complaints and opinions relating to School District policy.  The parent appears to have\nindependent\nbetween the School District and the parent do not constitute inter- agency or intra-agency\ndeliberative communications.  Accordingly, we conclude that the third-party e- mails are not\nexempt from disclosure under section 7( 1)( f) of FOIA.\n\nSection 7( 1)( c)  of FOIA\n\nThe School District also asserts that the responsive e- mails are exempt under\n\nsection 7( 1)( c)  of FOIA, which permits a public body to withhold \"[ p] ersonal information\n\n2Letter from Brian Crowley,  Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\nAccess Bureau( January 7, 2016).\n\n\fMs.  Lisa O' Halloran\n\nMs.  Ellen Walsh\n\nMr.  Brian Crowley\nJune 30,  2016\n\nPage 4\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\"  \" Unwarranted invasion of personal privacy\"  is defined in section\n7( 1)( c)  as the \" disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject' s right to privacy outweighs any legitimate public interest in\nobtaining the information.\"  The Illinois Supreme Court has held that if a record can be redacted\nto prevent identification of the subjects of records containing highly personal\nremaining portion of those records are not exempt from disclosure pursuant to section 7( 1)( c)  of\nFOIA.  Bowie v.  Evanston Community Consolidated School District No.  65,  128 III.  2d 373,  381\n\ninformation,  the\n\n1989).\n\nIn its response,  counsel for the School District states:\n\nSpecifically, the emails contain deeply held personal beliefs\nof the individual parent.   While the parent did share these opinions\n\nwith the Superintendent, there is no indication that the parent\n\nintended that the School District would share the emails with the\n\ncommunity at large.   The emails discuss controversial matters\nwhere there are differing and strongly held opinions.  * * *\nMoreover,  redacting the parent's name from the emails is not\nsufficient as the emails include personally identifiable information\nwhere individuals acquainted with the author may still be able to\nidentify the author.3\n\nMs.  O' Halloran argues that the parent' s privacy interest\n\nin this matter is\n\noutweighed by the \" legitimate public interest in obtaining information that bears on the policy\nthat regulates school announcements[,]\" \n\nspecifically \" in communications shared with and among\n\npublic employees and officials in efforts to influence and shape policy[.]\n\ni4\n\nIn State Journal- Register v.  University of Illinois Springfield,  the Appellate Court\n\nof Illinois, Fourth District, examined whether the University of Illinois Springfield properly\nwithheld documents relating to the resignation of university coaches,  including an e- mail string\nrelating to a student complaint and correspondence from the parent of an affected student.   In\ndetermining whether these records were properly withheld under section 7( 1)( c)  of FOIA,  the\n\ncourt stated:\n\nAccess Bureau( January 7, 2016).\n\n3Letter from Brian Crowley,  Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\nto Neil Olson, Assistant Attorney General, Public Access Bureau( January 15, 2016).\n\nLetter from Lisa O' Halloran, DT CDS,  Developmental Diagnostics, Evaluation Resource Group,\n\n\fMs. Lisa O' Halloran\n\nMs. Ellen Walsh\n\nMr.  Brian Crowley\nJune 30,  2016\n\nPage 5\n\nWith respect to the two sets of e- mail correspondence,  in\n\nbalancing the Lieber factors, the Journal and public have an\ninterest in the opinions of students and the parents of students with\n\nregard to the resignation of the coaches[.] * * *  Conversely,  the\nindividuals who composed each correspondence have a privacy\ninterest\nconcerns to UIS. * * *\n\nin being able to privately express their opinions and\n\nThe question then becomes whether redaction of the\n\ncorrespondence,  consistent with section 70)  of FOIA,  would\nremedy any personal privacy concerns. 5\n\nUltimately, the court determined that the correspondence from the parent of the\nUIS student was exempt\nremedy\nfrom disclosure in its entirety,  as \" redaction is not a potential\nbecause the affected student could easily be identified through the context of the letter[,]\"  and\nthat the UIS student' s complaint must be disclosed,  as \" redaction would adequately protect the\nprivacy interests because nothing in the content of the e- mail,  other than the student' s name,\nidentifies the student.\"  State Journal-Register 994 N.E.  2d at 720.\n\nSimilarly,  the e- mails between the School District and the parent contain highly\n\npersonal opinions of a parent concerning School District policy.  There is a significant and\nlegitimate public interest\nin the disclosure of information concerning the School' s District' s\npolicy.  However, information identifying the parent as the author of those opinions is highly\npersonal by its very nature;  the parent' s right to privacy outweighs any legitimate public interest\nin disclosure of the parent's identity.  The School District asserts that redacting identifying\ninformation from the e- mails is not possible,  as \" the parent' s personal information is too\ninterwoven with her opinions in the emails. i6 This assertion is vague and largely conclusory.\nNeither the personal opinions nor any other information in the e- mails except for the author's\nname,  contact information,  and references to her children are specific or unique enough to\nidentify the author of the e- mails.   Thus,  the School District has not sustained its burden of\ndemonstrating by clear and convincing evidence that the e- mails between the School District and\nthe parent are exempt in their entireties under section 7( 1)( c).\n\n5State Journal- Register v.  University ofIllinois Springfield,  994 N. E. 2d 705, 720( 4ih Dist.  2013)\n\nAccess Bureau( January 7, 2016).\n\n6Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\n\fMs.  Lisa O' Halloran\n\nMs.  Ellen Walsh\n\nMr. Brian Crowley\nJune 30,  2016\n\nPage 6\n\nBased on the conclusions expressed in this letter,  we request\n\nthat the School\n\nDistrict release the non- exempt a- mai to Ms.  O' Halloran with redactions,  pursuant to section\n7( 1)( c),  of the parent's name and contact information,  and specific references to the parent' s\n\nchildren.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   Please contact me at ( 217)  782- 1699 if you have\nquestions or would like to discuss this matter.   This letter serves to close this matter.\n\nVery truly yours,\n\nfit/\n\nBENJAMIN REED\n\nAssistant Attorney General\nPublic Access Bureau\n\n38873 f 71c proper\n\nimproper 71f proper\n\nimproper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"Lisa O'Halloran asked Elmhurst Community Unit School District 205 for emails from a school official about high school morning announcements. The district refused, citing privacy and deliberative-process exemptions. The Illinois Attorney General's Public Access Bureau found that the district properly withheld most pre-decisional emails between the superintendent and principal, but improperly withheld two October 20, 2015 emails reflecting a final decision and also improperly withheld emails exchanged between the district and a parent (those must be released after redacting the parent's name, contact information, and references to her children).","card_headline":"A school official's emails about morning announcements","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-38873/","full_text":"ei\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJune 30, 2016\n\nVia electronic mail\n\nMs. Lisa O' Halloran, DT CDS\n\nDevelopmental Diagnostics\n\nEvaluation Resource Group\nlisa@ohalloranmail.com\n\nVia electronic mail\n\nMs. Ellen Walsh\n\nFOIA Officer\n\nElmhurst Community Unit School District 205\n162 South York\n\n[street address redacted for site publication -- see original PDF]\nemwalsh @elmhurst205. org\n\nVia electronic mail\nMr. Brian P. Crowley\nFranczek Radelet\n\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\n\nbpc@franczek.com\n\nRE: FOIA Request\n\nfor Review— 2015 PAC 38873\n\nDear Ms. O' Halloran, Ms. Walsh, and Mr. Crowley:\n\nThis determination letter is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons that follow, the\n\nPublic Access Bureau concludes that Elmhurst Community Unit School District 205 (School\nDistrict) improperly denied Ms. Lisa O'Halloran's November 29, 2015, FOIA request.\n\nOn that date, Ms. O'Halloran submitted a FOIA request to the School District\nseeking copies of all of\" Dr. Moyer's emails between September 15, 2015 and November 24,\n\n2015, concerning York High School Morning Announcements[.]\"\nSchool District denied the request in its entirety under sections 7(1)(c), and 7(1)(ILCS 140/ 7(1)(c), (I On December 2, 2015, the\nf) of FOIA (5\n1)(f) (West 2014), as amended by Public Acts 99- 298, effective August 6,\n\n2015). On December 2, 2015, this office received Ms. O' Halloran's Request\ndisputing the School District's response.\n\nfor Review\n\nOn December 10, 2015, this office forwarded a copy of Ms. O' Halloran's Request\n\nfor Review to the School District and asked for copies of the withheld records and a detailed\nexplanation of its factual and legal bases for the asserted FOIA exemptions. On January 7, 2016,\ncounsel for the School District provided a written response together with copies of the responsive\nrecords for our confidential review. This response was forwarded to Ms. O' Halloran, who\nreplied on January 15, 2016.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014); see Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014).\n\nSection 7(1)(f) of FOIA\n\nThe School District asserts that the responsive e- mails are exempt\n\nfrom disclosure\n\nunder section 7(1)(f) of FOIA, which allows a public body to withhold:\n\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body.\n\nThis exemption is intended to encourage government officials to openly and frankly discuss\nmatters of governmental concern in order to make informed policy decisions. Harwood v.\nMcDonough, 344 III. App. 3d 242, 248 (1st Dist. 2003); see also Kalven v. City of Chicago, 2013\nIL App (1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of\n\nManagement& Budget, 598 F. 3d 865, 876 (D. C. Cir. 2010): \" Only those portions of a\npredecisional document\nthat reflect the give and take of the deliberative process may be\nwithheld.\" See also Klamath Water Users Protective Ass' n, 532 U. S. 1, 13, 121 S. Ct. 1060,\n1069 (2001) (communications with third parties that have independent\nbenefit from the public body's final decision cannot be characterized as intra-agency\n\ninterests and that stand to\n\ncommunications).\n\nThis office has reviewed the responsive records, which can be broadly categorized\n\nas e- mails between the School District Superintendent and the York Community High School's\nprincipal, and e- mails between the School District and a parent of one of the High School's\nstudents. In his response to this office, counsel\nmails may be withheld under section 7(1)(f), because \"[ a] ll of the emails include the individual\nparent's personal opinions and some include discussions between the Superintendent and the\nHigh School Principal where actions are formulated to address the concerns about the morning\nannouncements.\" z\n\nfor the School District argues that all of those e-\n\nMost of the e- mails between the Superintendent and the Principal discuss the\nconcerns expressed by the parent and how the School District should respond. Based on our\nreview of the e- mails, these records are pre- decisional\nthey were publicly cited or identified by the head of the School District. Therefore, we conclude\nthat they were properly withheld pursuant to section 7(1)(f). However, two of the e- mails, dated\nOctober 20, 2015, reflect a final decision and therefore do not constitute pre- decisional\ndeliberative material. Accordingly, the School District improperly withheld those e- mails\npursuant to section 7(1)(t) of FOIA.\n\nin nature and there is no indication that\n\nThe e- mails exchanged between the School District and the parent, however,\n\ninterests concerning the School District's policy. Thus, the e- mails exchanged\n\ncontain complaints and opinions relating to School District policy. The parent appears to have\nindependent\nbetween the School District and the parent do not constitute inter- agency or intra-agency\ndeliberative communications. Accordingly, we conclude that the third-party e- mails are not\nexempt from disclosure under section 7(1)(f) of FOIA.\n\nSection 7(1)(c) of FOIA\n\nThe School District also asserts that the responsive e- mails are exempt under\n\nsection 7(1)(c) of FOIA, which permits a public body to withhold \"[ p] ersonal information\n\n2 Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" \" Unwarranted invasion of personal privacy\" is defined in section\n7(1)(c) as the \" disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" The Illinois Supreme Court has held that if a record can be redacted\nto prevent identification of the subjects of records containing highly personal\nremaining portion of those records are not exempt from disclosure pursuant to section 7(1)(c) of\nFOIA. Bowie v. Evanston Community Consolidated School District No. 65, 128 III. 2d 373, 381\n\ninformation, the\n\n1989).\n\nIn its response, counsel for the School District states:\n\nSpecifically, the emails contain deeply held personal beliefs\nof the individual parent. While the parent did share these opinions\n\nwith the Superintendent, there is no indication that the parent\n\nintended that the School District would share the emails with the\n\ncommunity at large. The emails discuss controversial matters\nwhere there are differing and strongly held opinions. * * *\nMoreover, redacting the parent's name from the emails is not\nsufficient as the emails include personally identifiable information\nwhere individuals acquainted with the author may still be able to\nidentify the author.3\n\nMs. O' Halloran argues that the parent's privacy interest\n\nin this matter is\n\noutweighed by the \" legitimate public interest in obtaining information that bears on the policy\nthat regulates school announcements[,]\" \n\nspecifically \" in communications shared with and among\n\npublic employees and officials in efforts to influence and shape policy[.]\n\ni4\n\nIn State Journal- Register v. University of Illinois Springfield, the Appellate Court\n\nof Illinois, Fourth District, examined whether the University of Illinois Springfield properly\nwithheld documents relating to the resignation of university coaches, including an e- mail string\nrelating to a student complaint and correspondence from the parent of an affected student. In\ndetermining whether these records were properly withheld under section 7(1)(c) of FOIA, the\n\ncourt stated:\n\nAccess Bureau(January 7, 2016).\n\n3 Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\nto Neil Olson, Assistant Attorney General, Public Access Bureau(January 15, 2016).\n\nLetter from Lisa O' Halloran, DT CDS, Developmental Diagnostics, Evaluation Resource Group,\n\nWith respect to the two sets of e- mail correspondence, in\n\nbalancing the Lieber factors, the Journal and public have an\ninterest in the opinions of students and the parents of students with\n\nregard to the resignation of the coaches[.] * * * Conversely, the\nindividuals who composed each correspondence have a privacy\ninterest\nconcerns to UIS. * * *\n\nin being able to privately express their opinions and\n\nThe question then becomes whether redaction of the\n\ncorrespondence, consistent with section 70) of FOIA, would\nremedy any personal privacy concerns. 5\n\nUltimately, the court determined that the correspondence from the parent of the\nUIS student was exempt\nremedy\nfrom disclosure in its entirety, as \" redaction is not a potential\nbecause the affected student could easily be identified through the context of the letter[,]\" and\nthat the UIS student's complaint must be disclosed, as \" redaction would adequately protect the\nprivacy interests because nothing in the content of the e- mail, other than the student's name,\nidentifies the student.\" State Journal-Register 994 N.E. 2d at 720.\n\nSimilarly, the e- mails between the School District and the parent contain highly\n\npersonal opinions of a parent concerning School District policy. There is a significant and\nlegitimate public interest\nin the disclosure of information concerning the School's District's\npolicy. However, information identifying the parent as the author of those opinions is highly\npersonal by its very nature; the parent's right to privacy outweighs any legitimate public interest\nin disclosure of the parent's identity. The School District asserts that redacting identifying\ninformation from the e- mails is not possible, as \" the parent's personal information is too\ninterwoven with her opinions in the emails. i6 This assertion is vague and largely conclusory.\nNeither the personal opinions nor any other information in the e- mails except for the author's\nname, contact information, and references to her children are specific or unique enough to\nidentify the author of the e- mails. Thus, the School District has not sustained its burden of\ndemonstrating by clear and convincing evidence that the e- mails between the School District and\nthe parent are exempt in their entireties under section 7(1)(c).\n\n5 State Journal- Register v. University ofIllinois Springfield, 994 N. E. 2d 705, 720(4ih Dist. 2013)\n\nAccess Bureau(January 7, 2016).\n\n6 Letter from Brian Crowley, Franczek Radelet, to Neil Olson, Assistant Attorney General, Public\n\nBased on the conclusions expressed in this letter, we request\n\nthat the School\n\nDistrict release the non- exempt a- mai to Ms. O' Halloran with redactions, pursuant to section\n7(1)(c), of the parent's name and contact information, and specific references to the parent's\n\nchildren.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. Please contact me at (217) 782- 1699 if you have\nquestions or would like to discuss this matter. This letter serves to close this matter.\n\nVery truly yours,\n\nfit/\n\nBENJAMIN REED\n\nAssistant Attorney General\nPublic Access Bureau\n\n38873 f 71c proper\n\nimproper 71f proper\n\nimproper sd"}
{"id":871,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-07-26","case_number":null,"request_numbers":["39089"],"title":"Village of Lemont violated FOIA by directing requester to website for records not reasonably accessible online","filename":"39089, issued July 26, 2016.pdf","rel_path":null,"word_count":4058,"summary":"The requester sought various documents concerning fourteen specific properties, and the Village of Lemont claimed the request was unduly burdensome and directed the requester to its website. The PAC determined that while the Village did not improperly withhold records under section 3(g), it violated section 8.5(b) by failing to provide copies of records that were not reasonably accessible online.","plain_summary":"A requester asked the Village of Lemont for a large volume of property records, but the Village only provided a website link and claimed the rest of the request was too burdensome. The Attorney General's office ruled that the Village could not simply point to a website for records that were not actually available online. The Village was required to provide copies of the specific documents that were not reasonably accessible through their website.","holding":"The Village of Lemont violated section 8.5(b) of FOIA by refusing to provide copies of records that were not reasonably accessible online, though it did not improperly withhold records under section 3(g).","legal_question":"Whether a public body satisfies its FOIA obligations by directing a requester to a website for records that are not reasonably accessible online, and whether the request was unduly burdensome under section 3(g).","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/8.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Lemont","requesting_party":"Mr. Benjamin L. Schuster","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"online access","subject_description":"The request involved ten categories of records concerning fourteen specific properties.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/8.5/8.5_b/39089%2C%20issued%20July%2026%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["online records","unduly burdensome","FOIA request","public records access"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 26,  2016\n\nVia electronic mail\n\nMr.  Benjamin L.  Schuster\n\nHolland &  Knight LLP\n\n131 South Dearborn Street,  30th Floor\n\n[street address redacted for site publication -- see original PDF]\nBenjamin. schuster@hklaw. com\n\nVia electronic mail\n\nMr. Kevin Kearney\nTressler LLP\n\n233 South Wacker Drive,  22nd Floor\n\nChicago,  Illinois 62794\nICKeamey@tresslerlIp. com\n\nRE:  FOIA Request for Review — 2015 PAC 39089\n\nDear Mr.  Schuster and Mr. Keamey: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the response by the Village of Lemont ( Village)  to Mr. \nBenjamin Schuster' s re -submitted FOIA request did not improperly withhold records pursuant to\nsection 3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West 2014)).  This office further concludes, however, \nthat the Village violated section 8. 5( b)  of FOIA ( 5 ILCS 140/ 8. 5( b) ( West 2014))  by refusing to\nprovide copies of records that are not reasonably accessible online. \n\nOn November 12,  2015,  Mr. Steven Elrod,  an attorney acting on behalf of the\n\nVillage of Palos Park ( Palos Park),  submitted a FOIA request\nto the Village seeking \" all\ndocuments,'  which he defined for purposes of the request as ten categories of records, \n\nconcerning fourteen specific properties.  On November 19,  2015,  the Village provided a link to\nthe Village's website where it said that responsive records could be accessed,  but asserted, \npursuant\n\nto section 3( g)  of FOIA,  that the remainder of the request was unduly burdensome.  The\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26,  2016\nPage 2\n\nVillage' s response offered Mr. Elrod an opportunity to narrow his request to manageable\nproportions.  On November 20,  2015,  Mr. Benjamin Schuster,  another attorney acting on behalf\nof the Village of Palos Park,  replied that he could not reasonably access the responsive records\non the website and re -submitted the FOIA request for those records as required by section 8. 5( b) \nof FOIA.  On November 25,  2015,  Mr. Jeffrey M. Stein,  Village Attorney,  responded: ( 1)  Mr. \nSchuster acknowledged in a telephone conversation that he was able to access all records on the\n\nwebsite and,  therefore,  the Village did not need to do more to make the responsive records on its\nwebsite accessible even though Mr. Schuster indicated that he was unable to use the website' s\nsearch function; ( 2)  Mr. Schuster had verbally narrowed part 9 of the request and the Village\nwould provide the responsive records within 5 business days;  and ( 3)  four parts of the request, \n\nwhich Mr. Schuster declined to narrow, were denied in their entireties as unduly burdensome. \nOn December 14,  2015,  Mr. Schuster submitted this Request for Review alleging: ( 1) \nviolated section 8. 5 of FOIA by refusing to provide copies of records that are not reasonably\naccessible online;  and ( 2)  the remainder of the request is not unduly burdensome because the\npublic interest\n\nin disclosure outweighs the Village' s burden of compliance and because he\n\nthe Village\n\noffered to grant the Village more time to produce certain records if it would provide others that\n\nwould establish the relevant timeframes. \n\nThis office forwarded a copy of the Request for Review to the Village and\nrequested a written response explaining why compliance with the request would be unduly\nburdensome.  This office also requested that the Village provide a detailed explanation for the\nVillage' s assertions that the records on the Village' s website are reasonably accessible and that it\ndid not need to take further steps to make them accessible to Mr. Schuster. \n\nIn its response dated February 10,  2016,  the Village explained that it granted \" 6 of\n\nthe 11 requests by directing Palos Park to the Village' s online document database.  The Village\ndenied the remaining requests pursuant to section 3( g)  of FOIA because they sought records\n\nrelevant\n\nto 14 separate issues spanning a 20 -year time period.\"'  The Village further stated that\nduring a telephone conference with Palos Parks'  attorney on November 25,  2015,  Mr. Schuster, \nadmitted that he was able to access the records,  but complained the online database was not\n\nsearchable[,]\" \n\ntime periods[.]\" \n\n2\n\nand refused to \" narrow the remainder of Palos Park' s request by date or general\n\nThe Village asserted that its \" online database is fully accessible and\n\nstraightforward to use,\"  and explained how its website is organized: \n\nOffice of the Attorney General ( February 10,  2016)  at 1. \n\nLetter from Kevin Kearney,  Tressler LLP, to S.  Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General ( February 10,  2016)  at 1. \n\n2Letter from Kevin Kearney,  Tressler LLP,  to S.  Piya Mukherjee, [ Assistant Attorney General], \n\n\fMr.  Benjamin Schuster\n\nMr.  Kevin Kearney\nJuly 26,  2016\nPage 3\n\nThe website contains two subfolders labeled \" Ordinance\"  and\n\nResolutions\".  See\n\nhttp:// docs. lemont. il. us/ weblink/ browse. aspx? dbid= 0.  The\n\nOrdinances\"  page contains subfolders for the years 1987 through\n\n2016.  Each subfolder contains the relevant ordinances passed that\n\nyear.  Likewise,  the \" Resolutions\"  page contains subfolders for the\n\nyears 1981 through 2016,  and each subfolder contains the\n\nresolutions passed that year.  Both the \" Ordinances\"  and\nResolutions\"  pages also contain indexes. 3\n\nThe Village further stated that, \" The Act does not require the Village to make records searchable; \nrather, it must ensure they can be reasonably accessed,\"  and that it \"has no obligation to do\nanything further\"  when its online document database is functional,  its search function works,  and\nthe website contains indexes for ordinances and resolutions. 4\n\nAdditionally,  the Village characterized the remainder of Mr.  Schuster' s request as\nunduly burdensome because locating responsive records would require \" a search of voluminous\nmaterials for 14 separate issues spanning 20 years. i5 Referencing an affidavit\nfrom the Village\nAdministrator detailing the manner in which the Village organizes and stores the records at issue, \nthe Village asserted: \n\nComplying with the requests,  as stated,  would require a\n\nsubstantial undertaking.  Email correspondence is stored on a\nserver,  which would have to be searched using keywords ( which\nwere not provided by Palos Park). ( Schafer Aff. at 115).  Physical\ncorrespondence is organized into folder by date,  and stored in the\nVillage' s basement storage facility. ( Schafer Aff. at 117).  Without\na narrowed date range,  Village staff would be required to review\n\nevery correspondence file for records responsive to Palos Park' s\nrequests. [ Citation.] \nIn addition,  case files are also organized by\ndate,  and a search of those materials would be conducted the same\n\nway. ( Schafer Aff. at ¶  8).  There are approximately 160 boxes, \n\nOffice of the Attorney General ( February 10,  2016)  at 2. \n\n3Letter from Kevin Kearney,  Tressler LLP,  to S.  Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General ( February 10,  2016)  at 2- 3. \n\nLetter from Kevin Kearney,  Tressler LLP,  to S.  Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General ( February 10,  2016)  at 3. \n\n5Letter from Kevin Kearney,  Tressler LLP, to S.  Piya Mukherjee, [ Assistant Attorney General], \n\n\fMr.  Benjamin Schuster\n\nMr.  Kevin Kearney\nJuly 26,  2016\nPage 4\n\neach containing roughly 20 folders,  which would require review. \nSchafer Aff. at ¶ 9).  Assuming approximately 30 minutes to\nreview one folder,  the Village would expend 1600 hours to review\n\nall the files relevant to Palos Park's requests. [ Citation.] \n\nDemanding that the Village undertake a review of this magnitude, \nwithout providing a narrowed date range,  is a perfect illustration of\nan unduly burdensome request. 6\n\nOn February 29,  2016,  this office received Mr. Schuster' s reply.  He stated that\n\nthe Village referred him to its website for responsive ordinances,  resolutions,  annexation\n\nagreements,  and annexation petitions related to several annexations by Lemont.  Mr. Schuster\n\nalleges: \n\nWe have tried dozens of times to make this website work. \nAs demonstrated with the screenshots we included in our Request\nfor Review,  Lemont first had not purchased a sufficient number of\n\nlicenses for us to access the website.  When we were eventually\nable to get onto the website, the search function did not work. * * * \n\nEven if Lemont' s website works the way Lemont says that\n\nit works,  the website does not provide reasonable access.  Rather,  it\n\napparently provides folders that include 35 years'  worth of\nordinances and resolutions.  We do not know when the relevant\n\nannexations took place ( except for two annexations for which we\n\nwere able to obtain records independently)  so we do not know\nwhich folder to start in or how to narrow our request.  To locate the\nresponsive ordinances,  we would have to open and review nearly\nevery posted ordinance within the 35 -year period in the hopes that\nwe stumble upon the relevant ordinances. \n\nFurthermore,  Mr. Schuster asserts that the request for correspondence,  e- mails, and similar\ndocuments is not unduly burdensome,  and that his request could be narrowed if the Village\nprovides the ordinances and resolutions responsive to his request.  Mr. Schuster asserts that Palos\n\nOffice of the Attorney General ( February 10,  2016)  at 3. \n\n6Letter from Kevin Keamey, Tressler LLP, to Piya Mukherjee, [ Assistant Attorney General], \n\nGeneral,  Public Access Bureau,  Office of the Attorney General ( February 26,  2016)  at 1- 2. \n\nLetter from Benjamin L.  Schuster,  Holland &  Knight,  to S.  Piya Mukherjee,  Assistant Attomey\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26,  2016\nPage 5\n\nParks is seeking the records because the Village appears to have illegally annexed territory in\nPalos Park' s planning and subdivision jurisdiction,  and that the Village \" fails to satisfy its burden\nof demonstrating that the alleged burden in providing the records outweighs the public interest\nin\ntheir disclosure.\" 8\n\nDETERMINATION\n\nSection 3( g)  of FOIA\n\nSection 3( g)  of FOIA provides,  in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. \n\nA request for records concerning a specific topic is not unduly burdensome when\n\nthere is a compelling public interest\nin disclosure even if compliance with the request would\nrequire several weeks of full- time work by employees of the public body.  National Ass' n of\nCriminal Defense Lawyers v.  Chicago Police Department,  399 Ill.  App.  3d 1,  17 ( 2010). \nHowever,  a \" request that is overly broad and requires the public body to locate,  review, redact\nand arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequestor' s]  purpose constitutes an undue burden.\"  National Ass' n of Criminal Defense\nLawyers,  399 Ill. App.  3d at 17. \n\nThe portions of the request\n\nthat the Village denied as unduly burdensome sought\n\ncopies of all \" documents\"  concerning specific properties identified by address and permanent\nindex number.  The request defined \" documents\"  as including all petitions to annex,  annexation\nagreements,  ordinances,  public notices and \"[ 411 correspondence and other public records, \n\nletters,  e- mails and memoranda,  related to the annexation or\n\nincluding,  without limitation,  all\npotential annexation of the Properties by the Village of Lemont.\" 9 ( Emphasis added.)  The\nrequest further sought all \" ordinances,  resolutions,  or other enactments approved by the Village\nof Lemont approving any ( i)  zoning,  special use,  variation,  or similar land use approval, ( ii)  plat\nof subdivision,  or ( iii) public incentive for any of the properties; \"  all \" documents discussing, \n\nGeneral,  Public Access Bureau,  Office of the Attorney General ( February 26,  2016)  at 3. \n\n8Letter from Benjamin L. Schuster,  Holland &  Knight,  to S.  Piya Mukherjee,  Assistant Attorney\n\nAdministratorlFOIA Officer,  Village of Lemont ( November\n\n12,  2015),  at 2- 3. \n\n8Letter\n\nfrom Steven M.  Elrod,  Holland &  Knight,  LLP,  to Mr. George J.  Schaefer,  Village\n\n\fMr.  Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26,  2016\nPage 6\n\naddressing or showing the contiguity of the Properties to other properties located within the\nboundaries of the Village of Lemont;\"  all \" agreements related to any of the Properties entered\ninto by the Village of Lemont[;]\"  all \" correspondence regarding the annexation or development\nof the Properties;\"  and all \" correspondence or agreements with ComEd or any of its subsidiaries\nrelated to the properties[.]\n\ni10\n\nIt is clear that compliance with Mr. Schuster' s request would impose a significant\n\nburden on the Village's operations.  The available information indicates that compliance with the\nrequest, which covers an indefinite time period, would require the Village to search for paper\n\nrecords contained within 160 boxes and to expend a significant amount of time and effort trying\nto locate responsive e- mails and attachments.  Given the broad definition of \"documents\"  in the\nrequest,  the Village would be justified in conducting a thorough review of the records to identify\nportions that may be exempt from disclosure under FOIA. \n\nWith respect to the public interest in disclosure of all responsive records,  Mr. \n\nSchuster states that \" it appears Lemont has engaged in a series of illegal annexations of territory\nwithin Palos Park's planning and subdivision jurisdiction.\"'  1 There is a compelling public\ninterest\nin disclosure of records that could demonstrate the illegal annexation of property. \nHowever,  the disputed portions of the broad,  categorical request appear to encompass virtually\nall or almost all records related to the annexation of the properties in question.  The scope of\nthese requests is not limited to records that could potentially shed light on whether the properties\nwere illegally annexed.  Under these circumstances, \nrecords at issue does not outweigh the heavy burden of compliance with the request. \nAccordingly, this office concludes that the Village did not improperly deny portions of Mr. \nElrod' s November 12,  2015,  FOIA request as unduly burdensome under section 3( g)  of FOIA. \nThis office notes,  however,  that Mr. Schuster offered to narrow the request after obtaining\nrecords from the website that he was unable to access;  we encourage the parties to continue\n\nin disclosure of all the\n\nthe public interest\n\nworking together to ease the burden on the public body yet provide access to these records which\nare clearly of interest\n\nto the public. \n\nSection 8. 5( a)  and 8. 5( b)  of FOIA\n\nSection 8. 5( a)  of FOIA ( 5 ILCS 140/ 8. 5( a) ( West 2014))  provides that \" a public\n\nAdministrator/ FOIA Officer,  Village of Lemont ( November\n\n12,  2015),  at 2- 3. \n\n1° Letter from Steven M.  Elrod,  Holland &  Knight,  LLP,  to Mr.  George J.  Schaefer,  Village\n\nGeneral,  Office of the Attorney General ( February 26,  2016)  at 3. \n\nLetter from Benjamin L. Schuster,  Holland &  Knight,  to S.  Piya Mukherjee,  Assistant Attorney\n\n\fMr.  Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26,  2016\nPage 7\n\nbody is not required to copy a public record that is published on the public body' s website.  The\npublic body shall notify the requester that the public record is available online and direct the\nto the website where the record can be reasonably accessed.\" ( Emphasis added.) \n\nrequester\n\nSection 8. 5( b)  of FOIA further provides,  in pertinent part: \n\nIf the person requesting the public record is unable to\n\nreasonably access the records online after being directed to the\nwebsite pursuant to subsection ( a)  of this Section,  the requester\n\nmay re -submit his or her request for the record stating his or her\ninability to reasonably access the record online,  and the public\nbody shall make the requested record available for inspection or\ncopying as provided in Section 3 of this Act. ( Emphasis added.) \n\nIn construing a statute such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly.  See Southern Illinoisan v.  Illinois Dep' t of Public\nHealth, 218 Ill. 2d 390 ( 2006).  The best indicator of legislative intent is the language of the\n\nstatute,  which must be given its plain and ordinary meaning.  See,  e.g., Citizens Opposing\nPollution v.  ExxonMobil Coal U.S.A.,  2012 IL 111286, ¶ 23,  962 N. E. 2d 956,  964 ( 2012). \nHowever, \" where the language used leaves uncertainty as to how it should be interpreted in a\nthe purpose behind the law and the evils the law was\nparticular context,  the court can consider\ndesigned to remedy.\"  Phoenix Bond & \nIndemnity Co.  v.  Pappas,  194 Ill.  2d 99,  106 ( 2000). \" A\nfundamental principle of statutory construction is to view all provisions of a statutory enactment\nas a whole.  Accordingly,  words and phrases should not be construed in isolation,  but must be\ninterpreted in light of other relevant provisions of the statute.\"  Southern Illinoisan, 218 Ill. 2d at\n\n415.  A statute should not be construed in a way that would defeat\nor unjust result.\"  Phoenix Bond &  Indemnity Co.,  194 Ill. 2d at 107. \n\nits purpose \" or yield an absurd\n\nFOIA does not define the meaning of \"reasonably access\"  in section 8. 5( b). \n\nUndefined terms should be construed in the broader context of the statute as a whole to\n\neffectuate the purposes behind the law.  See Niven v.  Siqueira,  109 Ill.  2d 357,  366 ( 1985) \n\nWhen the terms of a statute are not specifically defined,  the words must be given their ordinary\n\nand popularly understood meanings [ citation],  but the words must also be construed with\nreference to the purposes and objectives of the statute\"). \n\nSection 1 of FOIA (5 ILCS 140/ 1 ( West 2014))  declares that it is \" the public\n\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees[.]\"  The Illinois Supreme Court has found the \" purpose\nof the FOIA is to open governmental\n\nrecords to the light of public scrutiny[,]\"  and that the Act\n\n\fMr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26,  2016\nPage 8\n\nshould be liberally construed to achieve the General Assembly' s intent of providing \" the public\ninformation[.]\"  Southern Illinoisan, 218 111.  2d at 415- 16,  citing\nwith easy access to government\nBowie v.  Evanston Community Consolidated School District No.  65,  128 III.  2d 373,  378 ( 1989). \nIn analyzing whether records are responsive to a request,  FOIA should not be interpreted \" in a\nway that would promote a practice of over -production,  whereby requesting parties would be\nburied with voluminous materials of little or no relevance.\" ( Emphasis added.)  Electronic\nFrontier Foundation v.  Dep' t ofJustice,  No.  C 10- 4892 RS,  2012 WL 5372103,  at * 2 ( N.D.  Cal. \n2012). \n\nAs discussed above,  Mr. Schuster re -submitted the FOIA request for the records\n\nthat the Village asserted were available on its website,  stating that he could not reasonably access\nthose records. \n\nfor Review,  Mr.  Schuster asserted that those records are not\n\nIn his Request\n\nreasonably accessible because repeated attempts to access the website did not generate records\nresponsive to his request, and that on numerous occasions,  attempts to search resulted in error\n\nmessages.  The Village' s response to this office stated that its staff and attorneys were able to\n\nconduct searches on the website,  and that a search of the word \" annex\"  yielded 199 results,  with\nlinks to the relevant ordinances and resolutions.' 2 On July 21,  2016,  an Assistant Attorney\nGeneral ( AAG)  in the Public Access Bureau conducted the same search and received 200 results, \n\neach of which contained links to resolutions,  ordinances and other records related to annexations; \n\nsome of these records include voluminous exhibits.  The AAG was unable to discern from the\n\nheadings of the results whether they were responsive to Mr. Schuster' s resubmitted request.  A\nsearch of a sample of the specific properties by their addresses and index numbers yielded mixed\nresults.  Some addresses returned records that appeared to be responsive while no results were\n\nreturned for other addresses.  Searches of index numbers returned hundreds of results,  many of\nwhich appeared to concern records that were not responsive to the request. \n\nInterpreting section 8. 5( b)  as authorizing a public body to simply direct a\n\nrequester to a website where he or she would bear the burden of reviewing a vast quantity of\nnon- responsive records in an attempt to locate the discrete information that was sought would\n\ncontravene the General Assembly' s intent to promote easy access to full and complete\ninformation concerning public business.  Other than by reviewing voluminous materials that are\nlikely to be irrelevant to his request, there does not appear to be a way for Mr. Schuster to\nconduct a search of the records of the 200 annexations maintained on the Village' s website and to\nidentify those that concern the specific properties for which he is seeking information.  At a\nminimum, \" reasonably access[]\"  would appear to include the ability to accurately identify narrow\ncategories of records by a specific subject matter,  which was not the case here.  The plain\nlanguage of the provision does not permit a public body to refuse to provide copies of records\n\nOffice of the Attorney General ( February 10,  2016)  at 2. \n\n2Letter\n\nfrom Kevin Kearney,  Tressler LLP,  to S.  Piya Mukherjee, [ Assistant Attorney General], \n\n\fr. Benjamin Schuster\n\nMr. Kevin Kearney\nJuly 26,  2016\nPage 9\n\nwhen a requester who was unable to reasonably access the records on the public body' s website\nre -submits his or her request stating an inability to do so,  as Mr. Schuster did on behalf of Palos\nPark.  Accordingly,  this office concludes that the Village violated section 8. 5( b)  of FOIA by\nfailing to provide copies of pertinent records after Mr. Schuster re -submitted the request and\nstated that he was unable to reasonably access the records on the Village' s website. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Village provide Mr. Schuster with copies of the responsive records that the\nVillage asserted could be reasonably accessed on its website.  The Public Access Counselor has\ndetermined that resolution of this matter does not require the issuance of a binding opinion.  If\nyou have any questions,  please contact me at ( 312)  814- 5206.  This correspondence shall serve\nto close this matter. \n\nVery truly yours, \n\nS.  PIYA MUKHERJEE\n\nAssistant Attorney General\nPublic Access Bureau\n\n39089 f 3g and burd proper 8. 5( b)  improper mun\n\n\fAccess,  Public\n\nFrom: \n\nSent: \n\nTo: '\n\nCc: '\n\nSubject: \n\nAttachments: \n\nGood Afternoon, \n\nAccess,  Public\n\nMonday,  August 08,  2016 4: 05 PM\nbenjamin. schuster@hklaw. com' \n\nkkearney@tresslerllp. com' \nPAC 39089\n\n39089 f 3g and burd proper 8. 5( b)  improper mun. pdf\n\nAttached,  is a letter from AAG Mukherjee. \n\nThanks, \n\nLidia Sanchez\n\nParalegal\n\n11\n\nIllinois Attorney General\n100 West Randolph Street\n\nChicago,  Illinois 60601\n\n312- 814- 2770\n\nIsanchez@atg. statail. us\n\nE- MAIL CONFIDENTIALITY NOTICE:  This message,  including all attachments, \ncontain information that is confidential,  legally privileged or otherwise protected or exempt from disclosure under\n\nis for the intended recipient( s)  only and may\n\napplicable law.  If you are not a named recipient or if you are named and believe you were named in error,  please notify\n\nthe sender immediately by telephone or return e- mail and promptly delete this e- mail and all attachments and each\ncopy thereof from your system.  If you are not an intended recipient,  please be aware that any copying,  dissemination, \ndisclosure or other use of this e- mail and any attachments is unauthorized and prohibited.  Your receipt of this message\nis not intended to waive any applicable privilege or claim of confidentiality, and any disclosure is not binding upon the\n\nsender or the Office of the Illinois Attorney General or any entity or interest represented by the Office of the Illinois\nAttorney General.  Thank you for your cooperation. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records concerning fourteen specific properties","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-39089/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 26, 2016\n\nVia electronic mail\n\nMr. Benjamin L. Schuster\n\nHolland & Knight LLP\n\n131 South Dearborn Street, 30th Floor\n\n[street address redacted for site publication -- see original PDF]\nBenjamin. schuster@hklaw. com\n\nVia electronic mail\n\nMr. Kevin Kearney\nTressler LLP\n\n233 South Wacker Drive, 22nd Floor\n\nChicago, Illinois 62794\nICKeamey@tresslerlIp. com\n\nRE: FOIA Request for Review — 2015 PAC 39089\n\nDear Mr. Schuster and Mr. Keamey: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Village of Lemont (Village) to Mr. \nBenjamin Schuster's re -submitted FOIA request did not improperly withhold records pursuant to\nsection 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2014)). This office further concludes, however, \nthat the Village violated section 8. 5(b) of FOIA (5 ILCS 140/ 8. 5(b) (West 2014)) by refusing to\nprovide copies of records that are not reasonably accessible online. \n\nOn November 12, 2015, Mr. Steven Elrod, an attorney acting on behalf of the\n\nVillage of Palos Park (Palos Park), submitted a FOIA request\nto the Village seeking \" all\ndocuments,' which he defined for purposes of the request as ten categories of records, \n\nconcerning fourteen specific properties. On November 19, 2015, the Village provided a link to\nthe Village's website where it said that responsive records could be accessed, but asserted, \npursuant\n\nto section 3(g) of FOIA, that the remainder of the request was unduly burdensome. The\n\nVillage's response offered Mr. Elrod an opportunity to narrow his request to manageable\nproportions. On November 20, 2015, Mr. Benjamin Schuster, another attorney acting on behalf\nof the Village of Palos Park, replied that he could not reasonably access the responsive records\non the website and re -submitted the FOIA request for those records as required by section 8. 5(b) \nof FOIA. On November 25, 2015, Mr. Jeffrey M. Stein, Village Attorney, responded: (1) Mr. \nSchuster acknowledged in a telephone conversation that he was able to access all records on the\n\nwebsite and, therefore, the Village did not need to do more to make the responsive records on its\nwebsite accessible even though Mr. Schuster indicated that he was unable to use the website's\nsearch function; (2) Mr. Schuster had verbally narrowed part 9 of the request and the Village\nwould provide the responsive records within 5 business days; and (3) four parts of the request, \n\nwhich Mr. Schuster declined to narrow, were denied in their entireties as unduly burdensome. \nOn December 14, 2015, Mr. Schuster submitted this Request for Review alleging: (1) \nviolated section 8. 5 of FOIA by refusing to provide copies of records that are not reasonably\naccessible online; and (2) the remainder of the request is not unduly burdensome because the\npublic interest\n\nin disclosure outweighs the Village's burden of compliance and because he\n\nthe Village\n\noffered to grant the Village more time to produce certain records if it would provide others that\n\nwould establish the relevant timeframes. \n\nThis office forwarded a copy of the Request for Review to the Village and\nrequested a written response explaining why compliance with the request would be unduly\nburdensome. This office also requested that the Village provide a detailed explanation for the\nVillage's assertions that the records on the Village's website are reasonably accessible and that it\ndid not need to take further steps to make them accessible to Mr. Schuster. \n\nIn its response dated February 10, 2016, the Village explained that it granted \" 6 of\n\nthe 11 requests by directing Palos Park to the Village's online document database. The Village\ndenied the remaining requests pursuant to section 3(g) of FOIA because they sought records\n\nrelevant\n\nto 14 separate issues spanning a 20 -year time period.\"' The Village further stated that\nduring a telephone conference with Palos Parks' attorney on November 25, 2015, Mr. Schuster, \nadmitted that he was able to access the records, but complained the online database was not\n\nsearchable[,]\" \n\ntime periods[.]\" \n\n2\n\nand refused to \" narrow the remainder of Palos Park's request by date or general\n\nThe Village asserted that its \" online database is fully accessible and\n\nstraightforward to use,\" and explained how its website is organized: \n\nOffice of the Attorney General (February 10, 2016) at 1. \n\nLetter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General (February 10, 2016) at 1. \n\n2 Letter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nThe website contains two subfolders labeled \" Ordinance\" and\n\nResolutions\". See\n\nhttp:// docs. lemont. il. us/ weblink/ browse. aspx? dbid= 0. The\n\nOrdinances\" page contains subfolders for the years 1987 through\n\n2016. Each subfolder contains the relevant ordinances passed that\n\nyear. Likewise, the \" Resolutions\" page contains subfolders for the\n\nyears 1981 through 2016, and each subfolder contains the\n\nresolutions passed that year. Both the \" Ordinances\" and\nResolutions\" pages also contain indexes. 3\n\nThe Village further stated that, \" The Act does not require the Village to make records searchable; \nrather, it must ensure they can be reasonably accessed,\" and that it \"has no obligation to do\nanything further\" when its online document database is functional, its search function works, and\nthe website contains indexes for ordinances and resolutions. 4\n\nAdditionally, the Village characterized the remainder of Mr. Schuster's request as\nunduly burdensome because locating responsive records would require \" a search of voluminous\nmaterials for 14 separate issues spanning 20 years. i5 Referencing an affidavit\nfrom the Village\nAdministrator detailing the manner in which the Village organizes and stores the records at issue, \nthe Village asserted: \n\nComplying with the requests, as stated, would require a\n\nsubstantial undertaking. Email correspondence is stored on a\nserver, which would have to be searched using keywords (which\nwere not provided by Palos Park). (Schafer Aff. at 115). Physical\ncorrespondence is organized into folder by date, and stored in the\nVillage's basement storage facility. (Schafer Aff. at 117). Without\na narrowed date range, Village staff would be required to review\n\nevery correspondence file for records responsive to Palos Park's\nrequests. [ Citation.] \nIn addition, case files are also organized by\ndate, and a search of those materials would be conducted the same\n\nway. (Schafer Aff. at ¶ 8). There are approximately 160 boxes, \n\nOffice of the Attorney General (February 10, 2016) at 2. \n\n3 Letter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General (February 10, 2016) at 2- 3. \n\nLetter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\nOffice of the Attorney General (February 10, 2016) at 3. \n\n5 Letter from Kevin Kearney, Tressler LLP, to S. Piya Mukherjee, [ Assistant Attorney General], \n\neach containing roughly 20 folders, which would require review. \nSchafer Aff. at ¶ 9). Assuming approximately 30 minutes to\nreview one folder, the Village would expend 1600 hours to review\n\nall the files relevant to Palos Park's requests. [ Citation.] \n\nDemanding that the Village undertake a review of this magnitude, \nwithout providing a narrowed date range, is a perfect illustration of\nan unduly burdensome request. 6\n\nOn February 29, 2016, this office received Mr. Schuster's reply. He stated that\n\nthe Village referred him to its website for responsive ordinances, resolutions, annexation\n\nagreements, and annexation petitions related to several annexations by Lemont. Mr. Schuster\n\nalleges: \n\nWe have tried dozens of times to make this website work. \nAs demonstrated with the screenshots we included in our Request\nfor Review, Lemont first had not purchased a sufficient number of\n\nlicenses for us to access the website. When we were eventually\nable to get onto the website, the search function did not work. * * * \n\nEven if Lemont's website works the way Lemont says that\n\nit works, the website does not provide reasonable access. Rather, it\n\napparently provides folders that include 35 years' worth of\nordinances and resolutions. We do not know when the relevant\n\nannexations took place (except for two annexations for which we\n\nwere able to obtain records independently) so we do not know\nwhich folder to start in or how to narrow our request. To locate the\nresponsive ordinances, we would have to open and review nearly\nevery posted ordinance within the 35 -year period in the hopes that\nwe stumble upon the relevant ordinances. \n\nFurthermore, Mr. Schuster asserts that the request for correspondence, e- mails, and similar\ndocuments is not unduly burdensome, and that his request could be narrowed if the Village\nprovides the ordinances and resolutions responsive to his request. Mr. Schuster asserts that Palos\n\nOffice of the Attorney General (February 10, 2016) at 3. \n\n6 Letter from Kevin Keamey, Tressler LLP, to Piya Mukherjee, [ Assistant Attorney General], \n\nGeneral, Public Access Bureau, Office of the Attorney General (February 26, 2016) at 1- 2. \n\nLetter from Benjamin L. Schuster, Holland & Knight, to S. Piya Mukherjee, Assistant Attomey\n\nParks is seeking the records because the Village appears to have illegally annexed territory in\nPalos Park's planning and subdivision jurisdiction, and that the Village \" fails to satisfy its burden\nof demonstrating that the alleged burden in providing the records outweighs the public interest\nin\ntheir disclosure.\" 8\n\nDETERMINATION\n\nSection 3(g) of FOIA\n\nSection 3(g) of FOIA provides, in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. \n\nA request for records concerning a specific topic is not unduly burdensome when\n\nthere is a compelling public interest\nin disclosure even if compliance with the request would\nrequire several weeks of full- time work by employees of the public body. National Ass' n of\nCriminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 17 (2010). \nHowever, a \" request that is overly broad and requires the public body to locate, review, redact\nand arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequestor's] purpose constitutes an undue burden.\" National Ass' n of Criminal Defense\nLawyers, 399 Ill. App. 3d at 17. \n\nThe portions of the request\n\nthat the Village denied as unduly burdensome sought\n\ncopies of all \" documents\" concerning specific properties identified by address and permanent\nindex number. The request defined \" documents\" as including all petitions to annex, annexation\nagreements, ordinances, public notices and \"[ 411 correspondence and other public records, \n\nletters, e- mails and memoranda, related to the annexation or\n\nincluding, without limitation, all\npotential annexation of the Properties by the Village of Lemont.\" 9 (Emphasis added.) The\nrequest further sought all \" ordinances, resolutions, or other enactments approved by the Village\nof Lemont approving any (i) zoning, special use, variation, or similar land use approval, (ii) plat\nof subdivision, or (iii) public incentive for any of the properties; \" all \" documents discussing, \n\nGeneral, Public Access Bureau, Office of the Attorney General (February 26, 2016) at 3. \n\n8 Letter from Benjamin L. Schuster, Holland & Knight, to S. Piya Mukherjee, Assistant Attorney\n\naddressing or showing the contiguity of the Properties to other properties located within the\nboundaries of the Village of Lemont;\" all \" agreements related to any of the Properties entered\ninto by the Village of Lemont[;]\" all \" correspondence regarding the annexation or development\nof the Properties;\" and all \" correspondence or agreements with ComEd or any of its subsidiaries\nrelated to the properties[.]\n\ni10\n\nIt is clear that compliance with Mr. Schuster's request would impose a significant\n\nburden on the Village's operations. The available information indicates that compliance with the\nrequest, which covers an indefinite time period, would require the Village to search for paper\n\nrecords contained within 160 boxes and to expend a significant amount of time and effort trying\nto locate responsive e- mails and attachments. Given the broad definition of \"documents\" in the\nrequest, the Village would be justified in conducting a thorough review of the records to identify\nportions that may be exempt from disclosure under FOIA. \n\nWith respect to the public interest in disclosure of all responsive records, Mr. \n\nSchuster states that \" it appears Lemont has engaged in a series of illegal annexations of territory\nwithin Palos Park's planning and subdivision jurisdiction.\"' 1 There is a compelling public\ninterest\nin disclosure of records that could demonstrate the illegal annexation of property. \nHowever, the disputed portions of the broad, categorical request appear to encompass virtually\nall or almost all records related to the annexation of the properties in question. The scope of\nthese requests is not limited to records that could potentially shed light on whether the properties\nwere illegally annexed. Under these circumstances, \nrecords at issue does not outweigh the heavy burden of compliance with the request. \nAccordingly, this office concludes that the Village did not improperly deny portions of Mr. \nElrod's November 12, 2015, FOIA request as unduly burdensome under section 3(g) of FOIA. \nThis office notes, however, that Mr. Schuster offered to narrow the request after obtaining\nrecords from the website that he was unable to access; we encourage the parties to continue\n\nin disclosure of all the\n\nthe public interest\n\nworking together to ease the burden on the public body yet provide access to these records which\nare clearly of interest\n\nto the public. \n\nSection 8. 5(a) and 8. 5(b) of FOIA\n\nSection 8. 5(a) of FOIA (5 ILCS 140/ 8. 5(a) (West 2014)) provides that \" a public\n\nAdministrator/ FOIA Officer, Village of Lemont (November\n\n12, 2015), at 2- 3. \n\n1° Letter from Steven M. Elrod, Holland & Knight, LLP, to Mr. George J. Schaefer, Village\n\nGeneral, Office of the Attorney General (February 26, 2016) at 3. \n\nLetter from Benjamin L. Schuster, Holland & Knight, to S. Piya Mukherjee, Assistant Attorney\n\nbody is not required to copy a public record that is published on the public body's website. The\npublic body shall notify the requester that the public record is available online and direct the\nto the website where the record can be reasonably accessed.\" (Emphasis added.) \n\nrequester\n\nSection 8. 5(b) of FOIA further provides, in pertinent part: \n\nIf the person requesting the public record is unable to\n\nreasonably access the records online after being directed to the\nwebsite pursuant to subsection (a) of this Section, the requester\n\nmay re -submit his or her request for the record stating his or her\ninability to reasonably access the record online, and the public\nbody shall make the requested record available for inspection or\ncopying as provided in Section 3 of this Act. (Emphasis added.) \n\nIn construing a statute such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Dep' t of Public\nHealth, 218 Ill. 2d 390 (2006). The best indicator of legislative intent is the language of the\n\nstatute, which must be given its plain and ordinary meaning. See, e.g., Citizens Opposing\nPollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23, 962 N. E. 2d 956, 964 (2012). \nHowever, \" where the language used leaves uncertainty as to how it should be interpreted in a\nthe purpose behind the law and the evils the law was\nparticular context, the court can consider\ndesigned to remedy.\" Phoenix Bond & \nIndemnity Co. v. Pappas, 194 Ill. 2d 99, 106 (2000). \" A\nfundamental principle of statutory construction is to view all provisions of a statutory enactment\nas a whole. Accordingly, words and phrases should not be construed in isolation, but must be\ninterpreted in light of other relevant provisions of the statute.\" Southern Illinoisan, 218 Ill. 2d at\n\n415. A statute should not be construed in a way that would defeat\nor unjust result.\" Phoenix Bond & Indemnity Co., 194 Ill. 2d at 107. \n\nits purpose \" or yield an absurd\n\nFOIA does not define the meaning of \"reasonably access\" in section 8. 5(b). \n\nUndefined terms should be construed in the broader context of the statute as a whole to\n\neffectuate the purposes behind the law. See Niven v. Siqueira, 109 Ill. 2d 357, 366 (1985) \n\nWhen the terms of a statute are not specifically defined, the words must be given their ordinary\n\nand popularly understood meanings [ citation], but the words must also be construed with\nreference to the purposes and objectives of the statute\"). \n\nSection 1 of FOIA (5 ILCS 140/ 1 (West 2014)) declares that it is \" the public\n\npolicy of the State of Illinois that all persons are entitled to full and complete information\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees[.]\" The Illinois Supreme Court has found the \" purpose\n\nshould be liberally construed to achieve the General Assembly's intent of providing \" the public\ninformation[.]\" Southern Illinoisan, 218 111. 2d at 415- 16, citing\nwith easy access to government\nBowie v. Evanston Community Consolidated School District No. 65, 128 III. 2d 373, 378 (1989). \nIn analyzing whether records are responsive to a request, FOIA should not be interpreted \" in a\nway that would promote a practice of over -production, whereby requesting parties would be\nburied with voluminous materials of little or no relevance.\" (Emphasis added.) Electronic\nFrontier Foundation v. Dep' t ofJustice, No. C 10- 4892 RS, 2012 WL 5372103, at * 2 (N.D. Cal. \n2012). \n\nAs discussed above, Mr. Schuster re -submitted the FOIA request for the records\n\nthat the Village asserted were available on its website, stating that he could not reasonably access\nthose records. \n\nfor Review, Mr. Schuster asserted that those records are not\n\nIn his Request\n\nreasonably accessible because repeated attempts to access the website did not generate records\nresponsive to his request, and that on numerous occasions, attempts to search resulted in error\n\nmessages. The Village's response to this office stated that its staff and attorneys were able to\n\nconduct searches on the website, and that a search of the word \" annex\" yielded 199 results, with\nlinks to the relevant ordinances and resolutions.' 2 On July 21, 2016, an Assistant Attorney\nGeneral (AAG) in the Public Access Bureau conducted the same search and received 200 results, \n\neach of which contained links to resolutions, ordinances and other records related to annexations; \n\nsome of these records include voluminous exhibits. The AAG was unable to discern from the\n\nheadings of the results whether they were responsive to Mr. Schuster's resubmitted request. A\nsearch of a sample of the specific properties by their addresses and index numbers yielded mixed\nresults. Some addresses returned records that appeared to be responsive while no results were\n\nreturned for other addresses. Searches of index numbers returned hundreds of results, many of\nwhich appeared to concern records that were not responsive to the request. \n\nInterpreting section 8. 5(b) as authorizing a public body to simply direct a\n\nrequester to a website where he or she would bear the burden of reviewing a vast quantity of\nnon- responsive records in an attempt to locate the discrete information that was sought would\n\ncontravene the General Assembly's intent to promote easy access to full and complete\ninformation concerning public business. Other than by reviewing voluminous materials that are\nlikely to be irrelevant to his request, there does not appear to be a way for Mr. Schuster to\nconduct a search of the records of the 200 annexations maintained on the Village's website and to\nidentify those that concern the specific properties for which he is seeking information. At a\nminimum, \" reasonably access[]\" would appear to include the ability to accurately identify narrow\ncategories of records by a specific subject matter, which was not the case here. The plain\nlanguage of the provision does not permit a public body to refuse to provide copies of records\n\nwhen a requester who was unable to reasonably access the records on the public body's website\nre -submits his or her request stating an inability to do so, as Mr. Schuster did on behalf of Palos\nPark. Accordingly, this office concludes that the Village violated section 8. 5(b) of FOIA by\nfailing to provide copies of pertinent records after Mr. Schuster re -submitted the request and\nstated that he was unable to reasonably access the records on the Village's website. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Village provide Mr. Schuster with copies of the responsive records that the\nVillage asserted could be reasonably accessed on its website. The Public Access Counselor has\ndetermined that resolution of this matter does not require the issuance of a binding opinion. If\nyou have any questions, please contact me at (312) 814- 5206. This correspondence shall serve\nto close this matter. \n\nVery truly yours, \n\nS. PIYA MUKHERJEE\n\nAssistant Attorney General\nPublic Access Bureau\n\n39089 f 3g and burd proper 8. 5(b) improper mun\n\nAccess, Public\n\nFrom: \n\nSent: \n\nTo: '\n\nCc: '\n\nSubject: \n\nAttachments: \n\nGood Afternoon, \n\nAccess, Public\n\nMonday, August 08, 2016 4: 05 PM\nbenjamin. schuster@hklaw. com' \n\nkkearney@tresslerllp. com' \nPAC 39089\n\n39089 f 3g and burd proper 8. 5(b) improper mun. pdf\n\nAttached, is a letter from AAG Mukherjee. \n\nThanks, \n\nLidia Sanchez\n\nParalegal\n\n11\n\nIllinois Attorney General\n100 West Randolph Street\n\nChicago, Illinois 60601\n\n312- 814- 2770\n\nIsanchez@atg. statail. us\n\nE- MAIL CONFIDENTIALITY NOTICE: This message, including all attachments, \ncontain information that is confidential, legally privileged or otherwise protected or exempt from disclosure under\n\nis for the intended recipient(s) only and may\n\napplicable law. If you are not a named recipient or if you are named and believe you were named in error, please notify\n\nthe sender immediately by telephone or return e- mail and promptly delete this e- mail and all attachments and each\ncopy thereof from your system. If you are not an intended recipient, please be aware that any copying, dissemination, \ndisclosure or other use of this e- mail and any attachments is unauthorized and prohibited. Your receipt of this message\nis not intended to waive any applicable privilege or claim of confidentiality, and any disclosure is not binding upon the\n\nsender or the Office of the Illinois Attorney General or any entity or interest represented by the Office of the Illinois\nAttorney General. Thank you for your cooperation."}
{"id":872,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-02-11","case_number":null,"request_numbers":["39260"],"title":"City of Bloomington improperly withheld police disciplinary records under FOIA exemptions 7(1)(b) and 7(1)(c)","filename":"39260, issued February 11, 2016.pdf","rel_path":null,"word_count":1593,"summary":"The requester sought disciplinary records and citizen complaints regarding three police officers, which the City of Bloomington partially denied citing FOIA exemptions and the Personnel Record Review Act. The PAC determined the City improperly withheld records and closed the matter.","plain_summary":"A requester asked for 10 years of disciplinary records and citizen complaints for three specific police officers. The City of Bloomington refused to provide some of these records, claiming they were either too old or protected by privacy laws. The Attorney General's office reviewed the case and concluded that the City's refusal to release the records was improper.","holding":"The City of Bloomington improperly withheld records in response to the FOIA request.","legal_question":"Whether the City of Bloomington properly applied FOIA exemptions and the Personnel Record Review Act to withhold disciplinary records and citizen complaints concerning police officers.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"City of Bloomington","requesting_party":"Mr. Michael G. Cainkar","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought disciplinary records, citizen complaints, and internal investigation documents for three police officers over a 10-year period.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_q/39260%2C%20issued%20February%2011%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","disciplinary records","citizen complaints","personnel records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 11,  2016\n\nMr. Michael G.  Cainkar\n\nLaw Offices of Louis F.  Cainkar,  Ltd\n\n30 North LaSalle Street,  Suite 3922\n\n[street address redacted for site publication -- see original PDF]\nMr. Jeffrey R.  Jurgens\nCorporation Counsel\n\nCity of Bloomington\n109 East Olive\n\nPO Box 3157\n\nBloomington,  Illinois 61702\n\nRE:  FOIA Request for Review — 2015 PAC 39260\n\nDear Mr. Cainkar and Mr. Jurgens: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).  For the reasons that follow,  the\n\nPublic Access Bureau concludes that the City of Bloomington ( City)  improperly withheld\nrecords in response to Mr. Michael Cainkar' s November 6,  2015,  FOIA request. \n\nOn that date,  Mr. Cainkar submitted a FOIA request to the City seeking the\n\ninvestigation ( including the\n\ncopies of all citizen' s complaints,  documents relating to any internal\nresults of the investigation),  lawsuits, disciplinary charges,  and the disciplinary records,  within\nthe last 10 years,  relating to Officer Timothy Ty Carlton,  Officer John Fernon,  and Sergeant\nDonath.i 1 On November 25,  2015,  the City denied the request in part, and disclosed citizen\ncomplaint\n140/ 7( 1)( b), ( 1)( c) ( West 2014),  as amended by Public Act 99- 298,  effective August 6, 2015). \nThe City asserted that no citizen complaints existed prior to 2009,  citing record retention\nrequirements and that \" records of disciplinary action\"  that were more than four years old were\nrequired to be deleted under section 8 of the Personnel Record Review Act (PRRA) ( 820 ILCS\n40/ 8 ( West 2014)).  After further correspondence with Mr. Cainkar on November 30,  2015,  the\n\nforms partially redacted under sections 7( 1)( b)  and 7( 1)( c)  of FOIA ( 5 ILCS\n\nFOIA Request\n\nfrom Michael G.  Cainkar ( November 6,  2015). \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Michael G.  Cainkar\n\nMr.  Jeffrey R.  Jurgens\nFebruary 11,  2016\nPage 2\n\nCity produced an additional Record of Disciplinary Action for Sergeant Donath.  In his Request\nfor Review,  Mr. Cainkar contended that the City misapplied the PRRA and had not disclosed all\nrecords responsive to his request,  in particular investigatory records relating to citizen\n\ncomplaints. \n\nOn January 6,  2016,  we forwarded a copy of the Request\n\nfor Review to the City\n\nand asked it to provide a detailed description of the handling of Mr. Cainkar' s request and the\nmeasures taken by the City to search for responsive records,  including a description of the\nspecific recordkeeping systems that were searched and the specific individuals who were\nconsulted.  We asked the City to specifically address the applicability of the PRRA and whether\nany investigatory records exist. \n\nOn January 20,  2016,  the City responded and described a search of two systems\n\nfor responsive records:  one relating to citizen complaints and the other relating to internal\ninvestigations.  The City stated that its complaint files contain additional records other than the\ncitizen complaint forms, but that it construed Mr. Cainkar' s request to be limited to the forms. \n\nThe City explained that a citizen complaint may not result in a corresponding internal\ninvestigation.  The City also stated that one of the officers at issue had three internal\ninvestigations in 2009 and 2010 that resulted in discipline,  but that since these investigations\n\nwere more than four years old,  they were withheld under section 7. 5( q)  of FOIA ( 5 ILCS\n140/ 7. 5( q) ( West 2014),  as amended by Public Act 99- 78,  effective July 20,  2015)  and section 8\nof the PRRA. \n\nOn January 26,  2016,  we forwarded a copy of the City' s response to Mr. Cainkar. \nHe replied on February 4,  2016 that \" the internal investigations or other 'documents'  generated as\na result of the citizens'  complaints are not ' disciplinary records'  per se\"  and the scope of his\nrequest was broader than citizen complaint\n\nforms. 2\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying ( 5 ILCS 140/ 1. 2 ( West 2014)),  and exemptions to disclosure\nare to be narrowly construed.  Lieber v.  Board of Trustees of Southern Illinois Univ.,  176 Ill.  2d\n401,  408 ( 1997);  see also 5 ILCS 140/ 1 ( West 2014).  A public body \" has the burden of proving\nby clear and convincing evidence\" \nWest 2014). \n\nfrom disclosure.  5 ILCS 140/ 1. 2\n\nthat a record is exempt\n\n2Letter from Michael G.  Cainkar to Neil P.  Olson, Assistant Attorney General,  Public Access\n\nBureau ( February 4,  2016). \n\n\fMr. Michael G.  Cainkar\n\nMr.  Jeffrey R.  Jurgens\nFebruary 11,  2016\nPage 3\n\nSection 7.5( q)  of FOIA and the PRRA\n\nSection 7. 5( q)  of FOIA exempts \"[ i] nformation prohibited from being disclosed\n\nby the Personnel Records Review Act\"  from disclosure.  Section 8 of the PRRA provides: \n\nAn employer shall review a personnel record before\nreleasing information to a third party and,  except when the release\nis ordered to a party in a legal action or arbitration,  delete\ndisciplinary reports,  letters of reprimand,  or other records of\ndisciplinary action which are more than 4 years old. \n\nFurther,  section 11 of the PRRA ( 820 ILCS 40/ 11 ( West 2014))  states that \"[ t]his\n\nAct shall not be construed to diminish a right of access to records already provided by law, \nexcept that disclosure of performance evaluations under the Freedom of Information Act shall be\n\nprohibited.\" \n\nThe unambiguous language of sections 8 and 11 of the PRRA precludes public\n\nbodies from using it as a basis to withhold records other than those that document a disciplinary\naction.  As the Public Access Bureau has previously determined,  in order to be considered a\nrecord of disciplinary action under the PRRA,  a record must document\ndiscipline.  See,  e. g., Ill.  Att' y Gen.  PAC Req.  Rev.  Ltr.  18779,  issued June 29,  2012,  at 6. \nAccordingly,  the City improperly withheld records under section 7. 5( q)  of FOIA that are beyond\nthe scope of section 8 of the PRRA,  such as underlying investigative records from 2009 and\n2010. \n\nthe imposition of\n\nWe also note that the City has acknowledged that,  in addition to the citizen\n\nfiles contain records that the City did\n\nforms disclosed to Mr. Cainkar,  the complaint\n\ncomplaint\nnot construe as responsive to Mr.  Cainkar' s request.  Mr. Cainkar' s request\nrelating to any internal\ncitizen complaints that resulted in internal\nrecords related to complaints that resulted in investigations which are not accounted for in the\nsystem that maintains records of internal\nCainkar's request.  If Mr. Cainkar is seeking correspondence related to citizen complaints that\ndid not result in internal\nwritten;  he may wish to file another FOIA request for those records. \n\ninvestigation\"  encompasses correspondence and other records concerning\ninvestigations.  Accordingly,  if the City possesses any\n\ninvestigations,  such records are beyond the scope of his request as\n\ninvestigations,  those records are responsive to Mr. \n\nfor \" documents\n\nIn accordance with the conclusions expressed in this letter, we request that the\n\nCity disclose all responsive records to Mr. Cainkar,  subject to appropriate redactions under\n\n\fMr. Michael G.  Cainkar\n\nMr. Jeffrey R. Jurgens\nFebruary 11,  2016\nPage 4\n\nIn particular,  the City may properly redact \" unique identifiers\"  that constitute\n\nsection 7 of FOIA ( 5 ILCS 140/ 7 ( West 2014),  as amended by Public Act 99- 298,  effective\nAugust 6,  2015). \nprivate information\" under section 7( 1)( b)  of FOIA (5 ILCS 140/ 7( 1)( b) ( West 2014),  as\namended by Public Act 99- 298, effective August 6,  2015). 3 Dates of birth may be redacted\nunder section 7( 1)( c)  of FOIA( 5 ILCS 140/ 7( 1)( c) ( West 2014),  as amended by Public Act 99- \n298,  effective August 6,  2015).  See,  e. g.,  I11.  Att' y Gen.  PAC Req.  Rev.  Ltr. 20376,  issued\nAugust 31,  2012.  The City may also properly redact\ninformation of witnesses who voluntarily provided information to law enforcement pursuant to\nsection 7( 1)( d)( iv)  of FOIA ( 5 ILCS 140/ 7( 1)( d)( iv) (West 2014),  as amended by Public Act 99- \n298,  effective August 6,  2015),  which exempts from disclosure information that would\nunavoidably disclose the identity of a person who provided information to a law enforcement\n\nthe names and any other identifying\n\nagency. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at ( 217)  782- 9078. \n\nVery truly yours, \n\nNEIL P.  OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n39260 f 75q improper mun\n\n3FOIA defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number,  driver' s license\nnumber,  employee identification\n\nnumber,  biometric identifiers,  personal\n\nfinancial\n\ninformation,  passwords or other access codes,  medical\n\nrecords,  home\n\nor personal telephone numbers,  and personal email addresses.  Private\n\ninformation also includes home address and personal\n\nlicense plates,  except as\n\notherwise provided by law or when compiled without possibility of attribution to\nany person.  5 ILCS 140/ 2( c- 5) ( West 2014). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary records and citizen complaints for three police officers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-39260/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 11, 2016\n\nMr. Michael G. Cainkar\n\nLaw Offices of Louis F. Cainkar, Ltd\n\n30 North LaSalle Street, Suite 3922\n\n[street address redacted for site publication -- see original PDF]\nMr. Jeffrey R. Jurgens\nCorporation Counsel\n\nCity of Bloomington\n109 East Olive\n\nPO Box 3157\n\nBloomington, Illinois 61702\n\nRE: FOIA Request for Review — 2015 PAC 39260\n\nDear Mr. Cainkar and Mr. Jurgens: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Bloomington (City) improperly withheld\nrecords in response to Mr. Michael Cainkar's November 6, 2015, FOIA request. \n\nOn that date, Mr. Cainkar submitted a FOIA request to the City seeking the\n\ninvestigation (including the\n\ncopies of all citizen's complaints, documents relating to any internal\nresults of the investigation), lawsuits, disciplinary charges, and the disciplinary records, within\nthe last 10 years, relating to Officer Timothy Ty Carlton, Officer John Fernon, and Sergeant\nDonath.i 1 On November 25, 2015, the City denied the request in part, and disclosed citizen\ncomplaint\n140/ 7(1)(b), (1)(c) (West 2014), as amended by Public Act 99- 298, effective August 6, 2015). \nThe City asserted that no citizen complaints existed prior to 2009, citing record retention\nrequirements and that \" records of disciplinary action\" that were more than four years old were\nrequired to be deleted under section 8 of the Personnel Record Review Act (PRRA) (820 ILCS\n40/ 8 (West 2014)). After further correspondence with Mr. Cainkar on November 30, 2015, the\n\nforms partially redacted under sections 7(1)(b) and 7(1)(c) of FOIA (5 ILCS\n\nFOIA Request\n\nfrom Michael G. Cainkar (November 6, 2015). \n\nCity produced an additional Record of Disciplinary Action for Sergeant Donath. In his Request\nfor Review, Mr. Cainkar contended that the City misapplied the PRRA and had not disclosed all\nrecords responsive to his request, in particular investigatory records relating to citizen\n\ncomplaints. \n\nOn January 6, 2016, we forwarded a copy of the Request\n\nfor Review to the City\n\nand asked it to provide a detailed description of the handling of Mr. Cainkar's request and the\nmeasures taken by the City to search for responsive records, including a description of the\nspecific recordkeeping systems that were searched and the specific individuals who were\nconsulted. We asked the City to specifically address the applicability of the PRRA and whether\nany investigatory records exist. \n\nOn January 20, 2016, the City responded and described a search of two systems\n\nfor responsive records: one relating to citizen complaints and the other relating to internal\ninvestigations. The City stated that its complaint files contain additional records other than the\ncitizen complaint forms, but that it construed Mr. Cainkar's request to be limited to the forms. \n\nThe City explained that a citizen complaint may not result in a corresponding internal\ninvestigation. The City also stated that one of the officers at issue had three internal\ninvestigations in 2009 and 2010 that resulted in discipline, but that since these investigations\n\nwere more than four years old, they were withheld under section 7. 5(q) of FOIA (5 ILCS\n140/ 7. 5(q) (West 2014), as amended by Public Act 99- 78, effective July 20, 2015) and section 8\nof the PRRA. \n\nOn January 26, 2016, we forwarded a copy of the City's response to Mr. Cainkar. \nHe replied on February 4, 2016 that \" the internal investigations or other 'documents' generated as\na result of the citizens' complaints are not ' disciplinary records' per se\" and the scope of his\nrequest was broader than citizen complaint\n\nforms. 2\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying (5 ILCS 140/ 1. 2 (West 2014)), and exemptions to disclosure\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 Ill. 2d\n401, 408 (1997); see also 5 ILCS 140/ 1 (West 2014). A public body \" has the burden of proving\nby clear and convincing evidence\" \nWest 2014). \n\nfrom disclosure. 5 ILCS 140/ 1. 2\n\nthat a record is exempt\n\n2 Letter from Michael G. Cainkar to Neil P. Olson, Assistant Attorney General, Public Access\n\nSection 7.5(q) of FOIA and the PRRA\n\nSection 7. 5(q) of FOIA exempts \"[ i] nformation prohibited from being disclosed\n\nby the Personnel Records Review Act\" from disclosure. Section 8 of the PRRA provides: \n\nAn employer shall review a personnel record before\nreleasing information to a third party and, except when the release\nis ordered to a party in a legal action or arbitration, delete\ndisciplinary reports, letters of reprimand, or other records of\ndisciplinary action which are more than 4 years old. \n\nFurther, section 11 of the PRRA (820 ILCS 40/ 11 (West 2014)) states that \"[ t]his\n\nAct shall not be construed to diminish a right of access to records already provided by law, \nexcept that disclosure of performance evaluations under the Freedom of Information Act shall be\n\nprohibited.\" \n\nThe unambiguous language of sections 8 and 11 of the PRRA precludes public\n\nbodies from using it as a basis to withhold records other than those that document a disciplinary\naction. As the Public Access Bureau has previously determined, in order to be considered a\nrecord of disciplinary action under the PRRA, a record must document\ndiscipline. See, e. g., Ill. Att' y Gen. PAC Req. Rev. Ltr. 18779, issued June 29, 2012, at 6. \nAccordingly, the City improperly withheld records under section 7. 5(q) of FOIA that are beyond\nthe scope of section 8 of the PRRA, such as underlying investigative records from 2009 and\n2010. \n\nthe imposition of\n\nWe also note that the City has acknowledged that, in addition to the citizen\n\nfiles contain records that the City did\n\nforms disclosed to Mr. Cainkar, the complaint\n\ncomplaint\nnot construe as responsive to Mr. Cainkar's request. Mr. Cainkar's request\nrelating to any internal\ncitizen complaints that resulted in internal\nrecords related to complaints that resulted in investigations which are not accounted for in the\nsystem that maintains records of internal\nCainkar's request. If Mr. Cainkar is seeking correspondence related to citizen complaints that\ndid not result in internal\nwritten; he may wish to file another FOIA request for those records. \n\ninvestigation\" encompasses correspondence and other records concerning\ninvestigations. Accordingly, if the City possesses any\n\ninvestigations, such records are beyond the scope of his request as\n\ninvestigations, those records are responsive to Mr. \n\nfor \" documents\n\nIn accordance with the conclusions expressed in this letter, we request that the\n\nCity disclose all responsive records to Mr. Cainkar, subject to appropriate redactions under\n\nIn particular, the City may properly redact \" unique identifiers\" that constitute\n\nsection 7 of FOIA (5 ILCS 140/ 7 (West 2014), as amended by Public Act 99- 298, effective\nAugust 6, 2015). \nprivate information\" under section 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2014), as\namended by Public Act 99- 298, effective August 6, 2015). 3 Dates of birth may be redacted\nunder section 7(1)(c) of FOIA(5 ILCS 140/ 7(1)(c) (West 2014), as amended by Public Act 99- \n298, effective August 6, 2015). See, e. g., I11. Att' y Gen. PAC Req. Rev. Ltr. 20376, issued\nAugust 31, 2012. The City may also properly redact\ninformation of witnesses who voluntarily provided information to law enforcement pursuant to\nsection 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(1)(d)(iv) (West 2014), as amended by Public Act 99- \n298, effective August 6, 2015), which exempts from disclosure information that would\nunavoidably disclose the identity of a person who provided information to a law enforcement\n\nthe names and any other identifying\n\nagency. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 782- 9078. \n\nVery truly yours, \n\nNEIL P. OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n39260 f 75q improper mun\n\n3FOIA defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification\n\nnumber, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical\n\nrecords, home\n\nor personal telephone numbers, and personal email addresses. Private\n\ninformation also includes home address and personal\n\nlicense plates, except as\n\notherwise provided by law or when compiled without possibility of attribution to\nany person. 5 ILCS 140/ 2(c- 5) (West 2014)."}
{"id":873,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-04-08","case_number":null,"request_numbers":["39684"],"title":"City of Chicago Department of Law improperly withheld factual email under 7(1)(m)","filename":"39684, issued April 8, 2016.pdf","rel_path":null,"word_count":2228,"summary":"The requester sought communications between two City of Chicago attorneys, and the PAC determined that the City improperly withheld one specific email by incorrectly claiming it was protected by attorney-client privilege.","plain_summary":"This determination addresses whether the City of Chicago Department of Law properly withheld the text of an email between two of its attorneys under FOIA's section 7(1)(m) exemption for attorney-client privileged communications and attorney work product. The Public Access Bureau held that the Department improperly withheld the email, finding it did not meet its burden of showing either privilege applied. The email was a purely factual status update on two legal matters that disclosed no litigation theories, mental impressions, or strategy (defeating the work-product claim) and conveyed no legal advice, merely factual information later forwarded to clients with an 'FYI' note (defeating the attorney-client privilege claim). The rule for future disputes: a public body invoking 7(1)(m) must show objective indicia that a communication either reveals an attorney's conceptual litigation strategy or constitutes legal advice sought in confidence -- a factual status update, even if marked confidential and prepared by counsel, does not qualify. The body reviewed was the City of Chicago Department of Law regarding an email exchanged between two of its attorneys.","holding":"Section 7(1)(m) does not exempt an attorney's communication that is a purely factual status update lacking litigation theories, mental impressions, or legal advice, even if marked confidential or later forwarded to a client.","legal_question":"Whether an email exchanged between two attorneys and forwarded to clients constitutes a privileged attorney-client communication exempt from disclosure under section 7(1)(m) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(iv)","7(1)(f)","7(1)(m)"],"public_body":"City of Chicago Department of Law","requesting_party":"Mr. Don Moseley (WMAQ-TV)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"attorney-client privilege","subject_description":"The request concerned communications between two city attorneys regarding factual information that was later forwarded to clients.","ocr_status":"ok","ocr_quality":91.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/39684%2C%20issued%20April%208%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["attorney-client privilege","email records","FOIA exemption","legal advice"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 8,  2016\n\nVia electronic mail\n\nMr. Don Moseley\nProducer,  WMAQ- TV\nDmose92480@aol. com\n\nVia electronic mail\n\nMs.  Amber Achilles Ritter\n\nChief Assistant Corporation Counsel\n\nDepartment of Law\n\nCity of Chicago\n121 North LaSalle Street,  Suite 600\n\n[street address redacted for site publication -- see original PDF]\nAmber. ritter@cityofchicago. org\n\nRE:  FOIA Request\n\nfor Review — 2016 PAC 39684\n\nDear Mr.  Moseley and Ms.  Ritter: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).  For the reasons discussed below,  the\n\nPublic Access Bureau concludes that the City of Chicago Department of Law ( Department) \nimproperly withheld an e- mail responsive to Mr. Don Moseley' s December 16,  2015,  FOIA\n\nrequest. \n\nOn that date,  Mr. Moseley,  on behalf of WMAQ- TV,  submitted a FOIA request\n\nto\nthe Department seeking copies of records of communications between Mr. Thomas Platt and Mr. \nStephen Patton,  both of whom are attorneys in the Department,  from January 20,  2015,  and\nJanuary 21,  2015.  On December 30,  2015,  the Department provided responsive records but\nredacted or withheld certain information pursuant to sections 7( 1)( b),  7( 1)( c),  7( I)( d)( iv), 7( 1)( f), \n\nand 7( 1)( m)  of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( c), (\n\n1)( d)( iv),  1( 0, ( 1)( m) ( West 2014),  as\n\namended by Public Acts 99- 298,  effective August 6, 2015).  Mr. Moseley' s Request for Review\ndisputes only the redaction of the text of one e- mail that was exchanged between Mr. Platt and\nMr. Patton and later forwarded to two of their clients.  The parties to the communication and the\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Don Moseley\nMs.  Amber Achilles Ritter\n\nApri18,  2016\n\nPage 2\n\nline of the e- mail — \"Fatal shooting on video,  4000 S.  Pulaski\"  were disclosed to Mr. \n\nsubject\nMoseley.' \n\nfor Review to\nOn February 2,  2016,  this office forwarded a copy of the Request\nthe Department and asked it to provide a copy of the withheld e- mail and a detailed explanation\nof the factual and legal bases for the exemption under which the e- mail was withheld.  On March\nfurnished a copy of the e- mail and a written response asserting that the\n4,  2016,  the Department\ne- mail\nfor Mr. Moseley\nto section 7( 1)( m)  of FOIA;  counsel\nis exempt\nreplied on March 14,  2016. \n\nfrom disclosure pursuant\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to\n\nbe open to inspection or copying[,]\" (\ndisclosure are to be narrowly construed.  Lieber v.  Board of Trustees ofSouthern Illinois Univ., \n176 Ill. 2d 401,  408 ( 1997);  see also 5 ILCS 140/ 1 ( West 2014).  A public body \" has the burden\nof proving by clear and convincing evidence\" \n140/\n\n5 ILCS 140/ 1. 2 ( West 2014)),  and exemptions to\n\nthat a record is exempt\n\nfrom disclosure. \n\n1. 2 ( West 2014). \n\n5 ILCS\n\nSection 7( 1)( m)  of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject\ndiscovery in litigation,  and materials prepared or compiled by or\nfor a public body in anticipation of a criminal,  civil or\nadministrative proceeding upon the request of an attorney\nadvising the public body,  and materials prepared or compiled with\nrespect to internal audits of public bodies. ( Emphasis added.) \n\nto\n\nThe Department' s response to this office asserted that the e- mail\nin question is an attorney- client\nprivileged communication and attorney work product.  The Public Access Bureau has previously\ndetermined that the section 7( 1)( m)  exemption encompasses both privileged attorney- client\ncommunications and work product.  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 28304,  issued February\n26,  2016.  These are \" separate and distinct protections\"  that must be addressed separately.  Waste\nManagement,  Inc.  v.  International Surplus Lines Insurance,  Co.,  144 Ill.  2d 178,  189 ( 1991). \n\n20,  2015). \n\nE- mail from Thomas Platt to Stephen Patton,  James Dunn, Jane Notz, and Liza Franklin ( January\n\n\fMr. Don Moseley\nMs.  Amber Achilles Ritter\n\nApril 8,  2016\n\nPage 3\n\nWork Product\n\nThe parameters of this doctrine are set forth in Illinois Supreme Court Rule\n\nto discovery only if it does not contain or disclose the theories,  mental\n\n201( b)( 2),  which provides that material prepared \" by or for a party in preparation for trial\nsubject\n1 tigation plans of the party' s attorney.\"  Attorney work product\nreveal\nMonier v.  Chamberlain,  35 Ill.  2d 351,  359- 60 ( 1966). \n\nthe shaping process by which the attorney has arranged the available evidence\"  for trial. \n\nis limited to records which\n\nimpressions,  or\n\nIn contrast, \"[ a] ny relevant material\n\nis\n\ngenerated in preparation for trial which does not disclose ' conceptual data'  is freely discoverable\nunder Rule 201( b)( 2).\"  Holland v.  Schwan' s Home Services,  Inc.,  2013 IL App ( 5th)  110560, \n205,  992 N. E. 2d 43,  86 ( 2013),  quoting Waste Management,  Inc.,  144 Ill.  2d at 196;  see also\nMau v. North American Asbestos,  Corp.,  156 I11.  App.  3d 926,  928- 29 ( 4th Dist.  1987) ( rejecting\nan attorneys argument that a list of witnesses for trial is work product that reveals litigation\n\nstrategy). \n\nThe Department' s response to this office stated: \n\nHere,  attorney Tom Platt,  who serves as Deputy\n\nCorporation Counsel of the Law Department' s Federal Civil Rights\n\nLitigation Division,  was communicating with Corporation Counsel\nSteve Patton regarding the litigation posture and strategy for two\nmatters — one which had already been filed in federal court,  and the\nother which he anticipated being filed.  This communication\nplainly falls into the definition of work product, in that it was\nprepared in anticipation and preparation for litigation and trial, and\n\nthat it indicates litigation strategy.  Therefore,  this exchange\nconstitutes work -product,  and was properly redacted under Section\n7( 1)( m)  of FOIA i21\n\nIn her reply to that response,  counsel for Mr. Moseley asserted that the Department' s \" response\nprovides almost no evidence to support its invocation of the work product privilege,  let alone\nobjective facts establishing a substantial and significant threat of litigation. i3\n\n2Letter from Amber Achilles Ritter, Chief Assistant Corporation Counsel,  Legal Information, \n\nInvestigations &  Prosecution Division, City of Chicago Department of Law, to Steve Silverman, Assistant Bureau\nChief, Public Access Bureau,  Office of the Attorney General ( March 4, 2016),  at 4. \n\n3Letter from Amanda M.  Leith,  Senior Counsel,  NBCUniversal News Group,  NBCUniversal\n\nMedia, LLC, to Steve Silverman,  Assistant Bureau Chief, Public Access Bureau,  Office of the Attorney General\nMarch 14,  2016),  at 2. \n\n\fMr.  Don Moseley\nMs.  Amber Achilles Ritter\n\nApril 8,  2016\n\nPage 4\n\nThis office has reviewed the e- mail at issue,  in which the City' s Deputy\n\nCorporation Counsel provides information on the status of two legal matters.  Even assuming\nthat the e- mail was prepared in anticipation of litigation, the information that it conveys is strictly\nfactual.  The e- mail\nmerely a status update.  Because the e- mail does not disclose any conceptual data or reveal the\nshaping process of arranging evidence for trial,  we conclude that the Department has not\nsustained its burden of demonstrating that it is exempt\nto section 7( 1)( m). \n\nfrom disclosure as work product pursuant\n\nis devoid of any theories,  mental\n\nimpressions,  or litigation plans. \n\nIt is\n\nAttorney - Client Privilege\n\nA party asserting that a confidential communication is protected by the attorney- \n\nclient privilege must show that: \"( 1)  a statement originated in confidence that it would not be\n\ndisclosed; ( 2)  it was made to an attorney acting in his legal capacity for the purpose of securing\nlegal advice or services;  and ( 3)  it remained confidential.\"  Cangelosi v.  Capasso,  366 I11.  App. \n3d 225,  228 ( 2nd Dist.  2006);  see also Hartford Fire Ins.  Co.  v.  Garvey,  109 F. R. D.  323, \n327 ( N. D.  Cal.  1985) (\" The proponent of the privilege carries the burden of establishing all\nIn re General\nelements of the privilege, \n\nincluding confidentiality,  which is not presumed\"); \n\nInstrument Corp.  Securities Litigation,  190 F. R. D.  527,  531 ( N. D.  Ill., 2000),  quoting U.S.  v. \nEvans,  113 F. 3d 1457,  1461 ( 7th Cir.  1997) (\" To be privileged,  the documents must not only\nexhibit attorney involvement,  but must involve ' a legal adviser acting in his capacity as such.\"). \n\nThe section 7( 1)( m)  exemption must be narrowly construed to promote\n\ntransparency \" notwithstanding the countervailing policy favoring confidentiality between\nattorneys and clients.\"  111.  Education Association v.  111.  State Board of Education,  204 Ill. 2d\n456,  470 ( 2003).  A public body that withholds records under section 7( 1)( m)  must provide a\nsupporting factual basis for the application of the exemption: \n\nI] n meeting its burden,  the public body may not simply treat the\nwords \" attorney- client privilege\"  or \" legal advice\"  as some\ntalisman, the mere utterance of which magically casts a spell of\nsecrecy over the documents at issue.  Rather,  the public body can\nmeet\nits burden only by providing some objective indicia that the\nexemption is applicable under the circumstances. ( Emphasis in\n\noriginal.) \n\n111.  Education Association,  204 Ill.  2d at 470. \n\nThe Department' s response to this office asserted that the attorney who received\nin question forwarded it to clients of the Department \" in order to advise them of the\n\nthe e- mail\nposture and upcoming events expected in the two matters discussed.  As a result,  the forwarding\nof this communication falls squarely in the definition of an attorney- client privileged\n\n\f1\nMr. Don Moseley\nMs. Amber Achilles Ritter\nApril 8,  2016\n\nPage 5\n\ncommunication[.]\" \n\nthat the clients sought\nthem. \n\n4 Counsel for Mr. Moseley replied that the Department failed to demonstrate\nlegal advice or explain why the information in the e- mail was provided to\n\nApplying Illinois law,  a federal district court concluded in Dawson v.  New York\n\nLife Ins.  Co.,  901 F.  Supp.  1362,  1367 ( N. D.  I11.  1995),  that facts communicated by a\ncorporation' s attorneys to the corporation' s employees were not protected by the attorney- client\nprivilege because the attorneys were acting \" more as ' courier[ s]  of factual\ninformation,'  rather\nthan ' legal advisers.\"'  The court further explained that \" common sense tells us that there is a\ndifference between merely providing legal\nattorneys were simply called upon to provide factual\nThe attorneys'  purpose was not to instruct the employees on the proper use of this information.\" \nDawson,  901 F.  Supp.  at 1367;  see also Digital Vending Services International,  Inc.  v.  University\nofPhoenix, Inc., No. 2: 09 -CV -555,  2013 WL 1560212,  at * 6 ( E.D. Va., 2013) ( e- mails\nd scussing status of preparation for oral arguments in federal court are \" simply status updates and\nno legal advice is given by counsel.  Therefore,  these communications\nare not privileged.\");  Elder\nCare Providers ofIndiana, Inc. v. Home Instead, Inc., No.  114- CV- 01894SEBMJD,  2016 WL\n881176,  at * 4 ( S. D.  Ind.  Mar.  8,  2016); ( e- mail asking an attorney how to respond to a request\nfor a status update is not privileged because it did not seek legal advice). \n\ninformation and providing legal ' advice.'  Here,  the\n\ninformation to the * * *  employees at issue. \n\nAlthough the e- mail in question is marked as confidential,  it is merely a status\n\nupdate that contains strictly factual information about two matters.  It does not convey any legal\nadvice.  The forwarding of this e- mail to the Department' s clients with a message that simply\nstates \" FYI\", 5 which was disclosed to Mr. Moseley,  does not transform this e- mail\nprivileged attorney- client communication.  Because the e- mail in question provides only factual\ninformation rather than legal advice,  this office concludes that the Department has not sustained\nits burden of demonstrating that it is exempt\nprivileged attorney- client communication. \n\nfrom disclosure pursuant\n\nto section 7( 1)( m)  as a\n\ninto a\n\nLetter from Amber Achilles Ritter,  Chief Assistant Corporation Counsel,  Legal Information, \n\nInvestigations &  Prosecution Division,  City of Chicago Department of Law,  to Steve Silverman,  Assistant Bureau\nChief, Public Access Bureau,  Office of the Attorney General ( March 4,  2016),  at 4. \n\nE- mail from Stephen Patton to\n\nand\n\nJanuary 20,  2015). \n\n\fr. Don Moseley\nMs.  Amber Achilles Ritter\nApril 8,  2016\n\nPage 6\n\nIn accordance with the conclusions expressed above,  this office requests that the\nDepartment furnish a copy of the e- mail at issue to Mr. Moseley.  The Public Access Counselor\nhas determined that resolution of this matter does not require the issuance of a binding opinion. \nIf you have any questions,  please contact me at ( 312)  814- 6756.  This letter serves to close this\nfile. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n39684 f 71m improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Attorneys' emails with factual updates to clients","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-39684/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 8, 2016\n\nVia electronic mail\n\nMr. Don Moseley\nProducer, WMAQ- TV\nDmose92480@aol. com\n\nVia electronic mail\n\nMs. Amber Achilles Ritter\n\nChief Assistant Corporation Counsel\n\nDepartment of Law\n\nCity of Chicago\n121 North LaSalle Street, Suite 600\n\n[street address redacted for site publication -- see original PDF]\nAmber. ritter@cityofchicago. org\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 39684\n\nDear Mr. Moseley and Ms. Ritter: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons discussed below, the\n\nPublic Access Bureau concludes that the City of Chicago Department of Law (Department) \nimproperly withheld an e- mail responsive to Mr. Don Moseley's December 16, 2015, FOIA\n\nrequest. \n\nOn that date, Mr. Moseley, on behalf of WMAQ- TV, submitted a FOIA request\n\nto\nthe Department seeking copies of records of communications between Mr. Thomas Platt and Mr. \nStephen Patton, both of whom are attorneys in the Department, from January 20, 2015, and\nJanuary 21, 2015. On December 30, 2015, the Department provided responsive records but\nredacted or withheld certain information pursuant to sections 7(1)(b), 7(1)(c), 7(I)(d)(iv), 7(1)(f), \n\nand 7(1)(m) of FOIA (5 ILCS 140/ 7(1)(b), (1)(c), (1)(d)(iv), 1(0, (1)(m) (West 2014), as\n\namended by Public Acts 99- 298, effective August 6, 2015). Mr. Moseley's Request for Review\ndisputes only the redaction of the text of one e- mail that was exchanged between Mr. Platt and\nMr. Patton and later forwarded to two of their clients. The parties to the communication and the\n\nline of the e- mail — \"Fatal shooting on video, 4000 S. Pulaski\" were disclosed to Mr. \n\nsubject\nMoseley.' \n\nfor Review to\nOn February 2, 2016, this office forwarded a copy of the Request\nthe Department and asked it to provide a copy of the withheld e- mail and a detailed explanation\nof the factual and legal bases for the exemption under which the e- mail was withheld. On March\nfurnished a copy of the e- mail and a written response asserting that the\n4, 2016, the Department\ne- mail\nfor Mr. Moseley\nto section 7(1)(m) of FOIA; counsel\nis exempt\nreplied on March 14, 2016. \n\nfrom disclosure pursuant\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to\n\nbe open to inspection or copying[,]\" (disclosure are to be narrowly construed. Lieber v. Board of Trustees ofSouthern Illinois Univ., \n176 Ill. 2d 401, 408 (1997); see also 5 ILCS 140/ 1 (West 2014). A public body \" has the burden\nof proving by clear and convincing evidence\" \n140/\n\n5 ILCS 140/ 1. 2 (West 2014)), and exemptions to\n\nthat a record is exempt\n\nfrom disclosure. \n\n1. 2 (West 2014). \n\n5 ILCS\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney\nadvising the public body, and materials prepared or compiled with\nrespect to internal audits of public bodies. (Emphasis added.) \n\nto\n\nThe Department's response to this office asserted that the e- mail\nin question is an attorney- client\nprivileged communication and attorney work product. The Public Access Bureau has previously\ndetermined that the section 7(1)(m) exemption encompasses both privileged attorney- client\ncommunications and work product. Ill. Att'y Gen. PAC Req. Rev. Ltr. 28304, issued February\n26, 2016. These are \" separate and distinct protections\" that must be addressed separately. Waste\nManagement, Inc. v. International Surplus Lines Insurance, Co., 144 Ill. 2d 178, 189 (1991). \n\n20, 2015). \n\nE- mail from Thomas Platt to Stephen Patton, James Dunn, Jane Notz, and Liza Franklin (January\n\nWork Product\n\nThe parameters of this doctrine are set forth in Illinois Supreme Court Rule\n\nto discovery only if it does not contain or disclose the theories, mental\n\n201(b)(2), which provides that material prepared \" by or for a party in preparation for trial\nsubject\n1 tigation plans of the party's attorney.\" Attorney work product\nreveal\nMonier v. Chamberlain, 35 Ill. 2d 351, 359- 60 (1966). \n\nthe shaping process by which the attorney has arranged the available evidence\" for trial. \n\nis limited to records which\n\nimpressions, or\n\nIn contrast, \"[ a] ny relevant material\n\nis\n\ngenerated in preparation for trial which does not disclose ' conceptual data' is freely discoverable\nunder Rule 201(b)(2).\" Holland v. Schwan's Home Services, Inc., 2013 IL App (5th) 110560, \n205, 992 N. E. 2d 43, 86 (2013), quoting Waste Management, Inc., 144 Ill. 2d at 196; see also\nMau v. North American Asbestos, Corp., 156 I11. App. 3d 926, 928- 29 (4th Dist. 1987) (rejecting\nan attorneys argument that a list of witnesses for trial is work product that reveals litigation\n\nstrategy). \n\nThe Department's response to this office stated: \n\nHere, attorney Tom Platt, who serves as Deputy\n\nCorporation Counsel of the Law Department's Federal Civil Rights\n\nLitigation Division, was communicating with Corporation Counsel\nSteve Patton regarding the litigation posture and strategy for two\nmatters — one which had already been filed in federal court, and the\nother which he anticipated being filed. This communication\nplainly falls into the definition of work product, in that it was\nprepared in anticipation and preparation for litigation and trial, and\n\nthat it indicates litigation strategy. Therefore, this exchange\nconstitutes work -product, and was properly redacted under Section\n7(1)(m) of FOIA i21\n\nIn her reply to that response, counsel for Mr. Moseley asserted that the Department's \" response\nprovides almost no evidence to support its invocation of the work product privilege, let alone\nobjective facts establishing a substantial and significant threat of litigation. i3\n\n2 Letter from Amber Achilles Ritter, Chief Assistant Corporation Counsel, Legal Information, \n\nInvestigations & Prosecution Division, City of Chicago Department of Law, to Steve Silverman, Assistant Bureau\nChief, Public Access Bureau, Office of the Attorney General (March 4, 2016), at 4. \n\n3 Letter from Amanda M. Leith, Senior Counsel, NBCUniversal News Group, NBCUniversal\n\nMedia, LLC, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Attorney General\n\nThis office has reviewed the e- mail at issue, in which the City's Deputy\n\nCorporation Counsel provides information on the status of two legal matters. Even assuming\nthat the e- mail was prepared in anticipation of litigation, the information that it conveys is strictly\nfactual. The e- mail\nmerely a status update. Because the e- mail does not disclose any conceptual data or reveal the\nshaping process of arranging evidence for trial, we conclude that the Department has not\nsustained its burden of demonstrating that it is exempt\nto section 7(1)(m). \n\nfrom disclosure as work product pursuant\n\nis devoid of any theories, mental\n\nimpressions, or litigation plans. \n\nIt is\n\nAttorney - Client Privilege\n\nA party asserting that a confidential communication is protected by the attorney- \n\nclient privilege must show that: \"(1) a statement originated in confidence that it would not be\n\ndisclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing\nlegal advice or services; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 I11. App. \n3d 225, 228 (2nd Dist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F. R. D. 323, \n327 (N. D. Cal. 1985) (\" The proponent of the privilege carries the burden of establishing all\nIn re General\nelements of the privilege, \n\nincluding confidentiality, which is not presumed\"); \n\nInstrument Corp. Securities Litigation, 190 F. R. D. 527, 531 (N. D. Ill., 2000), quoting U.S. v. \nEvans, 113 F. 3d 1457, 1461 (7th Cir. 1997) (\" To be privileged, the documents must not only\nexhibit attorney involvement, but must involve ' a legal adviser acting in his capacity as such.\"). \n\nThe section 7(1)(m) exemption must be narrowly construed to promote\n\ntransparency \" notwithstanding the countervailing policy favoring confidentiality between\nattorneys and clients.\" 111. Education Association v. 111. State Board of Education, 204 Ill. 2d\n456, 470 (2003). A public body that withholds records under section 7(1)(m) must provide a\nsupporting factual basis for the application of the exemption: \n\nI] n meeting its burden, the public body may not simply treat the\nwords \" attorney- client privilege\" or \" legal advice\" as some\ntalisman, the mere utterance of which magically casts a spell of\nsecrecy over the documents at issue. Rather, the public body can\nmeet\nits burden only by providing some objective indicia that the\nexemption is applicable under the circumstances. (Emphasis in\n\noriginal.) \n\n111. Education Association, 204 Ill. 2d at 470. \n\nThe Department's response to this office asserted that the attorney who received\nin question forwarded it to clients of the Department \" in order to advise them of the\n\nthe e- mail\nposture and upcoming events expected in the two matters discussed. As a result, the forwarding\n\ncommunication[.]\" \n\nthat the clients sought\nthem. \n\n4 Counsel for Mr. Moseley replied that the Department failed to demonstrate\nlegal advice or explain why the information in the e- mail was provided to\n\nApplying Illinois law, a federal district court concluded in Dawson v. New York\n\nLife Ins. Co., 901 F. Supp. 1362, 1367 (N. D. I11. 1995), that facts communicated by a\ncorporation's attorneys to the corporation's employees were not protected by the attorney- client\nprivilege because the attorneys were acting \" more as ' courier[ s] of factual\ninformation,' rather\nthan ' legal advisers.\"' The court further explained that \" common sense tells us that there is a\ndifference between merely providing legal\nattorneys were simply called upon to provide factual\nThe attorneys' purpose was not to instruct the employees on the proper use of this information.\" \nDawson, 901 F. Supp. at 1367; see also Digital Vending Services International, Inc. v. University\nofPhoenix, Inc., No. 2: 09 -CV -555, 2013 WL 1560212, at * 6 (E.D. Va., 2013) (e- mails\nd scussing status of preparation for oral arguments in federal court are \" simply status updates and\nno legal advice is given by counsel. Therefore, these communications\nare not privileged.\"); Elder\nCare Providers ofIndiana, Inc. v. Home Instead, Inc., No. 114- CV- 01894SEBMJD, 2016 WL\n881176, at * 4 (S. D. Ind. Mar. 8, 2016); (e- mail asking an attorney how to respond to a request\nfor a status update is not privileged because it did not seek legal advice). \n\ninformation and providing legal ' advice.' Here, the\n\ninformation to the * * * employees at issue. \n\nAlthough the e- mail in question is marked as confidential, it is merely a status\n\nupdate that contains strictly factual information about two matters. It does not convey any legal\nadvice. The forwarding of this e- mail to the Department's clients with a message that simply\nstates \" FYI\", 5 which was disclosed to Mr. Moseley, does not transform this e- mail\nprivileged attorney- client communication. Because the e- mail in question provides only factual\ninformation rather than legal advice, this office concludes that the Department has not sustained\nits burden of demonstrating that it is exempt\nprivileged attorney- client communication. \n\nfrom disclosure pursuant\n\nto section 7(1)(m) as a\n\ninto a\n\nLetter from Amber Achilles Ritter, Chief Assistant Corporation Counsel, Legal Information, \n\nInvestigations & Prosecution Division, City of Chicago Department of Law, to Steve Silverman, Assistant Bureau\n\nIn accordance with the conclusions expressed above, this office requests that the\nDepartment furnish a copy of the e- mail at issue to Mr. Moseley. The Public Access Counselor\nhas determined that resolution of this matter does not require the issuance of a binding opinion. \nIf you have any questions, please contact me at (312) 814- 6756. This letter serves to close this\nfile. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n39684 f 71m improper mun"}
{"id":874,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-05-12","case_number":null,"request_numbers":["39705"],"title":"Village of Oak Park properly withheld employee survey as deliberative process material under 7(1)(f)","filename":"39705, issued May 12, 2016.pdf","rel_path":null,"word_count":1300,"summary":"The requester sought a copy of a Village employee survey, which the Village denied under the deliberative process exemption. The PAC determined that the Village properly withheld the records as pre-decisional deliberative material.","plain_summary":"A reporter requested an employee survey from the Village of Oak Park, but the Village refused to release it, claiming it was part of their internal decision-making process. The Attorney General's office reviewed the request and agreed with the Village, ruling that the document was exempt from disclosure because it was used for internal policy formulation. This means the public does not have a right to access this specific type of internal survey.","holding":"The Village of Oak Park did not improperly withhold the requested employee survey because it constitutes pre-decisional deliberative material.","legal_question":"Whether an employee survey conducted by a municipality is exempt from disclosure under the deliberative process exemption of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Village of Oak Park","requesting_party":"Mr. Tim Inklebarger (Wednesday Journal)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned an employee survey conducted by the Village of Oak Park in 2015.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/references-survey-takers/39705%2C%20issued%20May%2012%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["employee survey","deliberative process","exemption 7(1)(f)","internal records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMay 12,  2016\n\nMr. Tim Inklebarger\nReporter\n\nWednesday Journal\n[street address redacted for site publication -- see original PDF]\nMr. Paul L. Stephanides\n\nVillage Attorney\nVillage of Oak Park\n\nLaw Department\n\n123 Madison Street\nOak Park,  Illinois 60302\n\nRE:  FOIA Request for Review — 2016 PAC 39705\n\nDear Mr. Inklebarger and Mr. Stephanides: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 14019. 5( f) (West 2014)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the Village of Oak Park ( Village) did not improperly\nwithhold records responsive to Mr. Tim Inklebarger' s January 13,  2016,  FOIA request. \n\nOn that date,  Mr. Inklebarger,  on behalf of the Wednesday Journal,  submitted a\n\nFOIA request to the Village seeking a copy of a Village employee survey conducted by the\nVillage in the fall of 2015.  On January 21,  2016, the Village denied Mr. Inklebarger's request in\nits entirety pursuant to section 7( 1)( f) of FOIA (5 ILCS 140/7( 1)( f) (West 2014),  as amended by\nPublic Acts 99- 298, effective August 6,  2015;  99-346,  effective January 1,  2016).  On January\n21;  2016, this office received Mr. Inklebarger's Request for Review in which he disputes the\n\ndenial of his request. \n\n500 South Second Street, Springfield, Illinois 62706 • ( 217)  782- 1090TTY: ( 217)  785 - 2771 \"  Fax: ( 217)  782- 7046\n1001001REasoMain, Carbondale, \n\n2)  814- 300\n6400- \n\n29- 6400 - TTY: ( 618)\n\nFax: ( 6 8) 529- 6416\n\nIllinois 62901\n\n529- 6403\n\n814- 3806\n\nTTY: \n\n618) • 529-\n\n60601 (\n\n312) \n\n3\n\n\fMr.  Tim Inklebarger\n\nMr.  Paul L.  Stephanides\n\nMay 12,  2016\nPage 2\n\nOn February 3,  2016,  the office forwarded a copy of this Request for Review to\n\nthe Village and requested that it provide a copy of the responsive. records for our confidential\nreview together with a detailed explanation of the factual and legal bases for the assertion of\nsection 7( 1)( f).  On February 26, 2016, the Village responded and provided the survey results for\nour confidential review.  In its response,  the Village maintained that its denial was proper under\nsection 7( 1)( f) and added an assertion that the survey is also exempt from disclosure pursuant to\nsection 7( 1)( g)  of FOIA (5 ILCS 140/ 7( 1)( g) ( West 2014),  as amended by Public Acts 99- 298, \neffective August 6,  2015;  99- 346,  effective January 1,  2016).  On February 29,  2016,  this office\nforwarded the Village' s response to Mr. Inklebarger;  he did not reply.  On May 11,  2016,  in an e- \nmail to an Assistant Attorney General in the Public Access Bureau, Mr. Inklebarger clarified that\nhe is seeking copies of the Village employees'  responses to the survey. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body \" are presumed to\nbe open to inspection and copying.\"  5 ILCS 140/ 1. 2 ( West 2014);  see also Southern Illinoisan v. \nIllinois Dept. ofPublic Health, 218 Ill. 2d 390,  415 ( 2006).  Any public body that asserts that a\nrecord is exempt from disclosure \" has the burden of proving by clear and convincing evidence\" \nthat a record is exempt\ndisclosure are to be narrowly construed.  Lieber v. Board of Trustees of Southern Illinois\nUniversity,  176 Ill. 2d 401,  407 ( 1997). \n\nfrom disclosure.  5 ILCS 140/ 1. 2 ( West 2014).  The exemptions from\n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" \"[ A] s a\nmatter of public policy, section 7( 1)(\nf) exempts from disclosure predecisional materials used by a\npublic body in its deliberative process. \"  Harwood v. McDonough,  344 Ill. App. 3d 242,  248 ( 1st\nDist.  2003).  The exemption is \" intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\"  Harwood, \n344 Ill. App.  3d at 248. \n\nThe Village' s response to this office asserted the following: \n\nThe survey is a tool for the Village Manager to formulate policies\nor actions and other matters,  including recommendations, \nconcerning Village employees and her overall management of\nVillage employees and their supervisors.  In addition, the survey\nresults may be reviewed in summary from by [ sic]  the Village\n\n\fMr.  Tim Inklebarger\nMr. Paul L. Stephanides\nMay 12,  2016\nPage 3\n\nBoard to conduct its annual review of the Village Manager' s\n\nperformance * * * \n\nIf the results were to be released,  it may have a\n\nnegative effect on open communications and truthful answers to\nthe questions posed by the survey * * * \neffect on the future use of the survey or other similar types of\nsurveys of Village employees in order to determine policies or\nactions to be taken with regard to employees.' \n\nIt may also have a chilling\n\nIn addition, the Village included with its response to this office an e- mail from the\n\nVillage Manager to Village Supervisors,  explaining the purpose of the survey: \n\nAgain this year, we will be asking employees to participate\nin the Oak Park Employee Survey * * * [ B] y sharing their opinions\nand making their voices heard,  they provide us with knowledge of\nthe overall employee opinions and this information guide both the\nVillage Manager and the Village Board in knowing how and where\nto begin improving the work environment. * * * \nnoteworthy that the employee opinions that were shared with us\nlast year help guide decisions about improving our workplace. 2\n\nI also think it is\n\nThis office has reviewed the responsive records,  which are survey responses from\nemployees and supervisors containing their opinions on various workplace matters.  The Village\nhas asserted that these results are used by the Village in its deliberative process to improve the\nworkplace for Village employees,  and that they were not publicly cited by the head of the\nVillage.  The Public Access Bureau has previously concluded that survey responses in which\npublic employees express opinions that are used as part of a public body's decision- making\nprocess are exempt from disclosure under section 7( 1)( f). Ill. Att'y Gen.  PAC Pre- Auth. \nal13448,  issued April 11,  2011 ( concluding results of surveys of public employees containing\ntheir opinions and recommendations which were used by a village to formulate actions and\npolicies constituted pre -decisional deliberative material).  Likewise, we conclude that the Village\ndid not improperly deny Mr. InkleBarger' s request under section 7( 1)(\n\nf) of FOIA. \n\nGeneral,  Public Access Bureau,  Office of the Attorney General ( February 26,  2016),  at 2- 3. \n\nLetter from Paul L.  Stephanides,  Village Attorney,  to Shannon Barnaby,  Assistant Attorney\n\n2E -mail from Cara Pavlicek,  Village Manager,  Village of Oak Park,  to Robert Anderson et.  al. \n\nSeptember 8,  2015). \n\n\fMr. Tim Inklebarger\n\nMr.  Paul L.  Stephanides\n\nMay 12,  2016\nPage 4\n\nBecause this office has determined that the Village did not improperly withhold\n\nthe survey under section 7( 1)(\nsection 7( 1)( g)  of FOIA. \n\nf) of FOIA, we need not determine whether it is exempt under\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  you may contact me at the Chicago address listed on the first page of this\nletter. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n39705 f 71f proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An employee survey from 2015","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-39705/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMay 12, 2016\n\nMr. Tim Inklebarger\nReporter\n\nWednesday Journal\n[street address redacted for site publication -- see original PDF]\nMr. Paul L. Stephanides\n\nVillage Attorney\nVillage of Oak Park\n\nLaw Department\n\n123 Madison Street\nOak Park, Illinois 60302\n\nRE: FOIA Request for Review — 2016 PAC 39705\n\nDear Mr. Inklebarger and Mr. Stephanides: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 14019. 5(f) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Oak Park (Village) did not improperly\nwithhold records responsive to Mr. Tim Inklebarger's January 13, 2016, FOIA request. \n\nOn that date, Mr. Inklebarger, on behalf of the Wednesday Journal, submitted a\n\nFOIA request to the Village seeking a copy of a Village employee survey conducted by the\nVillage in the fall of 2015. On January 21, 2016, the Village denied Mr. Inklebarger's request in\nits entirety pursuant to section 7(1)(f) of FOIA (5 ILCS 140/7(1)(f) (West 2014), as amended by\nPublic Acts 99- 298, effective August 6, 2015; 99-346, effective January 1, 2016). On January\n21; 2016, this office received Mr. Inklebarger's Request for Review in which he disputes the\n\ndenial of his request. \n\nOn February 3, 2016, the office forwarded a copy of this Request for Review to\n\nthe Village and requested that it provide a copy of the responsive. records for our confidential\nreview together with a detailed explanation of the factual and legal bases for the assertion of\nsection 7(1)(f). On February 26, 2016, the Village responded and provided the survey results for\nour confidential review. In its response, the Village maintained that its denial was proper under\nsection 7(1)(f) and added an assertion that the survey is also exempt from disclosure pursuant to\nsection 7(1)(g) of FOIA (5 ILCS 140/ 7(1)(g) (West 2014), as amended by Public Acts 99- 298, \neffective August 6, 2015; 99- 346, effective January 1, 2016). On February 29, 2016, this office\nforwarded the Village's response to Mr. Inklebarger; he did not reply. On May 11, 2016, in an e- \nmail to an Assistant Attorney General in the Public Access Bureau, Mr. Inklebarger clarified that\nhe is seeking copies of the Village employees' responses to the survey. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body \" are presumed to\nbe open to inspection and copying.\" 5 ILCS 140/ 1. 2 (West 2014); see also Southern Illinoisan v. \nIllinois Dept. ofPublic Health, 218 Ill. 2d 390, 415 (2006). Any public body that asserts that a\nrecord is exempt from disclosure \" has the burden of proving by clear and convincing evidence\" \nthat a record is exempt\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 (1997). \n\nfrom disclosure. 5 ILCS 140/ 1. 2 (West 2014). The exemptions from\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" \"[ A] s a\nmatter of public policy, section 7(1)(f) exempts from disclosure predecisional materials used by a\npublic body in its deliberative process. \" Harwood v. McDonough, 344 Ill. App. 3d 242, 248 (1st\nDist. 2003). The exemption is \" intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\" Harwood, \n344 Ill. App. 3d at 248. \n\nThe Village's response to this office asserted the following: \n\nThe survey is a tool for the Village Manager to formulate policies\n\nBoard to conduct its annual review of the Village Manager's\n\nperformance * * * \n\nIf the results were to be released, it may have a\n\nnegative effect on open communications and truthful answers to\nthe questions posed by the survey * * * \neffect on the future use of the survey or other similar types of\nsurveys of Village employees in order to determine policies or\nactions to be taken with regard to employees.' \n\nIt may also have a chilling\n\nIn addition, the Village included with its response to this office an e- mail from the\n\nVillage Manager to Village Supervisors, explaining the purpose of the survey: \n\nAgain this year, we will be asking employees to participate\nin the Oak Park Employee Survey * * * [ B] y sharing their opinions\nand making their voices heard, they provide us with knowledge of\nthe overall employee opinions and this information guide both the\nVillage Manager and the Village Board in knowing how and where\nto begin improving the work environment. * * * \nnoteworthy that the employee opinions that were shared with us\nlast year help guide decisions about improving our workplace. 2\n\nI also think it is\n\nThis office has reviewed the responsive records, which are survey responses from\nemployees and supervisors containing their opinions on various workplace matters. The Village\nhas asserted that these results are used by the Village in its deliberative process to improve the\nworkplace for Village employees, and that they were not publicly cited by the head of the\nVillage. The Public Access Bureau has previously concluded that survey responses in which\npublic employees express opinions that are used as part of a public body's decision- making\nprocess are exempt from disclosure under section 7(1)(f). Ill. Att'y Gen. PAC Pre- Auth. \nal13448, issued April 11, 2011 (concluding results of surveys of public employees containing\ntheir opinions and recommendations which were used by a village to formulate actions and\npolicies constituted pre -decisional deliberative material). Likewise, we conclude that the Village\ndid not improperly deny Mr. InkleBarger's request under section 7(1)(f) of FOIA. \n\nGeneral, Public Access Bureau, Office of the Attorney General (February 26, 2016), at 2- 3. \n\nLetter from Paul L. Stephanides, Village Attorney, to Shannon Barnaby, Assistant Attorney\n\n2E -mail from Cara Pavlicek, Village Manager, Village of Oak Park, to Robert Anderson et. al. \n\nBecause this office has determined that the Village did not improperly withhold\n\nthe survey under section 7(1)(section 7(1)(g) of FOIA. \n\nf) of FOIA, we need not determine whether it is exempt under\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, you may contact me at the Chicago address listed on the first page of this\nletter. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n39705 f 71f proper mun"}
{"id":875,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-04-08","case_number":null,"request_numbers":["40002"],"title":"Southern Illinois University properly withheld termination and reinstatement records under 7(1)(n)","filename":"40002, issued April 8, 2016.pdf","rel_path":null,"word_count":970,"summary":"A reporter requested employment, termination, and reinstatement records for a university employee, which the university withheld under FOIA Section 7(1)(n). The PAC determined that the university properly withheld the records because they related to an adjudication of a disciplinary case.","plain_summary":"The requester sought an employee's termination and reinstatement records from the university, which withheld them as records relating to an employee disciplinary adjudication. Based on confidential information the university provided, the PAC determined that the final outcome of the adjudication did not itself impose discipline, so the exemption for disciplinary case records was not overridden by the final-outcome exception. The university's withholding did not violate FOIA.","holding":"Southern Illinois University did not improperly deny the request for termination and reinstatement records because they are exempt under section 7(1)(n) of FOIA.","legal_question":"Whether records relating to an employee's termination and reinstatement are exempt from disclosure under section 7(1)(n) of FOIA as records relating to the adjudication of disciplinary cases.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(n)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(n)"],"public_body":"Southern Illinois University","requesting_party":"Mr. Bill Lukitsch (Daily Egyptian)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought employment, termination, and reinstatement records for a university employee.","ocr_status":"ok","ocr_quality":97.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_n/40002%2C%20issued%20April%208%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","employee discipline","FOIA exemption","university records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 8,  2016\n\nMr.  Bill Lukitsch\n\nSouthern Illinois University\nDaily Egyptian — MC 6887\n[street address redacted for site publication -- see original PDF]\nMr. Douglas J.  McCarty\nAssociate General Counsel\n\nSouthern Illinois University\nOffice of the General Counsel\nAnthony Hall, Room 318\nMail Code 4307\n\n1265 Lincoln Drive\nCarbondale,  Illinois 62901\n\nRE:  FOIA Request for Review — 2016 PAC 40002\n\nDear Mr. Lukitsch and Mr. McCarty: \n\nThis determination is issued pursuant to section 9. 50 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)).  For the reasons discussed below,  the\nPublic Access Bureau concludes that Southern Illinois University ( University)  did not\nimproperly deny Mr. Bill Lukitsch' s FOIA request. \n\nMr.  Lukitsch submitted an undated FOIA request,  on behalf of the Daily\n\nrecord of Dr.  Bakul Dave.  On February 2,  2016,  the University furnished a\n\nEgyptian,  to the University seeking the employment contract,  termination record,  and\nreinstatement\nredacted copy of the employment contract but denied the termination and reinstatement\nin their entireties pursuant\namended by Public Acts 99- 298,  effective August 6,  2015;  99- 346,  effective January 1,  2016), \nwhich exempts from disclosure: \" Records relating to a public body' s adjudication of employee\ngrievances or disciplinary cases;  however, this exemption shall not extend to thefinal outcome\nof cases in which discipline is imposed.\" ( Emphasis added.)  Mr. Lukitsch disputes the denial of\n\nto section 7( 1)( n)  of FOIA ( 5 ILCS 140/ 7( 1)( n) ( West 2014),  as\n\nrecords\n\n500 South Second Street,  Springfield,  Illinois 62706 • (\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \nFax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Bill Lukitsch\n\nMr. Douglas J.  McCarty\nApril 8,  2016\n\nPage 2\n\nthose records,  contending that the University disciplined the employee who was the subject of\n\nthe adjudication. \n\nOn February 11,  2016,  this office sent a copy of the Request for Review to the\n\nIn particular,  this office asked the University to describe any formal or informal\n\nUniversity and asked it to provide copies of the withheld records for our confidential review and\na detailed explanation of the factual and legal bases for the applicability of the section 7( 1)( n) \nexemption. \nproceedings relating to the relevant termination and reinstatement and to clarify whether or not\nthose proceedings resulted in discipline.  On February 25,  2016,  the University furnished the\nrequested materials and its written response.  The University' s response to this office emphasized\nthat the term \" final outcome\"  is undefined in section 7( 1)( n),  and contended that the imposition\nof discipline was not the final outcome of the adjudication at issue in this matter.  The University\nprovided this office with additional information supporting that assertion on a confidential basis\npursuant to section 9. 5( d)  of FOIA ( 5 ILCS 140/ 9. 5( d) ( West 2014)).'  Mr. Lukitsch did not\nreply to the non -confidential version of the University response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying ( 5 ILCS 140/ 1. 2 ( West 2014)),  and exemptions to disclosure\nare to be narrowly construed.  Lieber v.  Board of Trustees of Southern Illinois Univ.,  176 Ill. 2d\n401,  408 ( 1997);  see also 5 ILCS 140/ 1 ( West 2014).  A public body \" has the burden of proving\nby clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS 140/ 1. 2\n\nWest 2014). \n\nThis office has reviewed the records in question,  which show that the University\n\nadjudicated an employee disciplinary case in accordance with the applicable collective\nbargaining agreement.  The University' s response to this office included confidential\ninformation\nsupporting its assertion that the imposition of discipline was not the \" final outcome\"  of the case. \nBased on that confidential\nconfidentially,  we agree that the final and enforceable decision in this matter was not the\nimposition of discipline.  Further,  in light of the final outcome of the adjudication,  which we are\nprecluded from describing in this determination because the records were provided\nconfidentially, 2 no discipline was imposed in the case for purposes of section 7( 1)( n)  of FOIA. \n\nresponse and information in the records that were provided\n\nSection 9. 5( d)  of FOIA provides that the Public Access Counselor shall\nforward a copy\nof the public body' s response \" to the person submitting the request for review,  with any alleged confidential\ninformation to which the request pertains redacted from the copy.\" \n\n2Section 9. 5( c)  of FOIA ( 5 ILCS 140/ 9. 5( c) ( West 2014))  provides: \" To the extent\n\nthat records or\n\ndocuments produced by a public body contain information that is claimed to be exempt from disclosure under\nSection 7 of this Act,  the Public Access Counselor shall not\n\nfurther disclose that\n\ninformation.\" \n\n\fMr.  Bill Lukitsch\nMr. Douglas J.  McCarty\nApril 8,  2016\n\nPage 3\n\nBecause the termination and reinstatement records at issue in this matter relate to the University' s\nadjudication of an adjudication that did result in discipline,  this office concludes that the\nUniversity did not improperly withhold those records pursuant to section 7( 1)( n) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  If you have any questions,  please contact me at\n312)  814- 6756.  This letter serves to close this file. \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n40002 f 71n proper univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A journalist asked Southern Illinois University for records regarding an employee's termination and reinstatement. The university refused to release these documents, citing a law that protects records related to employee disciplinary cases. The Attorney General's office agreed with the university, finding that the records were properly withheld under the law.","card_headline":"Employment, termination, and reinstatement records for a university employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-40002/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 8, 2016\n\nMr. Bill Lukitsch\n\nSouthern Illinois University\nDaily Egyptian — MC 6887\n[street address redacted for site publication -- see original PDF]\nMr. Douglas J. McCarty\nAssociate General Counsel\n\nSouthern Illinois University\nOffice of the General Counsel\nAnthony Hall, Room 318\nMail Code 4307\n\n1265 Lincoln Drive\nCarbondale, Illinois 62901\n\nRE: FOIA Request for Review — 2016 PAC 40002\n\nDear Mr. Lukitsch and Mr. McCarty: \n\nThis determination is issued pursuant to section 9. 50 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons discussed below, the\nPublic Access Bureau concludes that Southern Illinois University (University) did not\nimproperly deny Mr. Bill Lukitsch's FOIA request. \n\nMr. Lukitsch submitted an undated FOIA request, on behalf of the Daily\n\nrecord of Dr. Bakul Dave. On February 2, 2016, the University furnished a\n\nEgyptian, to the University seeking the employment contract, termination record, and\nreinstatement\nredacted copy of the employment contract but denied the termination and reinstatement\nin their entireties pursuant\namended by Public Acts 99- 298, effective August 6, 2015; 99- 346, effective January 1, 2016), \nwhich exempts from disclosure: \" Records relating to a public body's adjudication of employee\ngrievances or disciplinary cases; however, this exemption shall not extend to thefinal outcome\nof cases in which discipline is imposed.\" (Emphasis added.) Mr. Lukitsch disputes the denial of\n\nto section 7(1)(n) of FOIA (5 ILCS 140/ 7(1)(n) (West 2014), as\n\nrecords\n\nthose records, contending that the University disciplined the employee who was the subject of\n\nthe adjudication. \n\nOn February 11, 2016, this office sent a copy of the Request for Review to the\n\nIn particular, this office asked the University to describe any formal or informal\n\nUniversity and asked it to provide copies of the withheld records for our confidential review and\na detailed explanation of the factual and legal bases for the applicability of the section 7(1)(n) \nexemption. \nproceedings relating to the relevant termination and reinstatement and to clarify whether or not\nthose proceedings resulted in discipline. On February 25, 2016, the University furnished the\nrequested materials and its written response. The University's response to this office emphasized\nthat the term \" final outcome\" is undefined in section 7(1)(n), and contended that the imposition\nof discipline was not the final outcome of the adjudication at issue in this matter. The University\nprovided this office with additional information supporting that assertion on a confidential basis\npursuant to section 9. 5(d) of FOIA (5 ILCS 140/ 9. 5(d) (West 2014)).' Mr. Lukitsch did not\nreply to the non -confidential version of the University response. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying (5 ILCS 140/ 1. 2 (West 2014)), and exemptions to disclosure\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 Ill. 2d\n401, 408 (1997); see also 5 ILCS 140/ 1 (West 2014). A public body \" has the burden of proving\nby clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2\n\nWest 2014). \n\nThis office has reviewed the records in question, which show that the University\n\nadjudicated an employee disciplinary case in accordance with the applicable collective\nbargaining agreement. The University's response to this office included confidential\ninformation\nsupporting its assertion that the imposition of discipline was not the \" final outcome\" of the case. \nBased on that confidential\nconfidentially, we agree that the final and enforceable decision in this matter was not the\nimposition of discipline. Further, in light of the final outcome of the adjudication, which we are\nprecluded from describing in this determination because the records were provided\nconfidentially, 2 no discipline was imposed in the case for purposes of section 7(1)(n) of FOIA. \n\nresponse and information in the records that were provided\n\nSection 9. 5(d) of FOIA provides that the Public Access Counselor shall\nforward a copy\nof the public body's response \" to the person submitting the request for review, with any alleged confidential\ninformation to which the request pertains redacted from the copy.\" \n\n2 Section 9. 5(c) of FOIA (5 ILCS 140/ 9. 5(c) (West 2014)) provides: \" To the extent\n\nthat records or\n\ndocuments produced by a public body contain information that is claimed to be exempt from disclosure under\n\nBecause the termination and reinstatement records at issue in this matter relate to the University's\nadjudication of an adjudication that did result in discipline, this office concludes that the\nUniversity did not improperly withhold those records pursuant to section 7(1)(n) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This letter serves to close this file. \n\nSTEVE SILVERMAN\n\nAssistant Bureau Chief\n\nPublic Access Bureau\n\n40002 f 71n proper univ"}
{"id":876,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-07-12","case_number":null,"request_numbers":["40373"],"title":"Cook County Sheriff's Office violated FOIA by retroactively calling request voluminous","filename":"40373, issued July 12, 2016.pdf","rel_path":null,"word_count":1361,"summary":"The requester sought Office of Professional Review reports and security footage, and the PAC determined the Cook County Sheriff's Office failed to timely classify the request as voluminous under FOIA.","plain_summary":"A requester sought reports and security-camera footage relating to numerous grievances from a county sheriff's office. The PAC determined that the office properly treated the request as voluminous because it involved more than 500 pages, but violated FOIA by waiting too long to notify the requester that it was doing so. Because the office later provided the first 50 pages without charge and FOIA provides no specific remedy for a late voluminous-request notice, no further remedial action was required.","holding":"The Sheriff's Office failed to comply with the time requirements of FOIA by delaying its classification of the request as voluminous.","legal_question":"Whether a public body may retroactively classify a FOIA request as 'voluminous' after the initial statutory response period has expired.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/3.6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Sheriff's Office","requesting_party":"Mr. Mitchell","pac_outcome":"Violation found regarding timeliness","pac_law_type":null,"subject_category":"voluminous request","subject_description":"The requester sought Office of Professional Review reports and security camera footage related to 51 specific grievances.","ocr_status":"reocr_tesseract","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.6/40373%2C%20issued%20July%2012%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["voluminous request","FOIA deadline","Sheriff's Office","records request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"F' 6\n\nG\n\nkrm.\n\ni\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly\n\nIllinois 60644\n\nMs. Elizabeth Scannell\n\nAssistant General Counsel\n\nSheriffs Office of Cook County\n50 West Washington, Room 704\nChicago,  Illinois 60632\n\nRE:   FOIA Request\n\nfor Review— 2016 PAC 40\n\nr Mr. Mitchell and Ms.  Scannell:\n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).   For the reasons set forth below,  the\nPublic Access Bureau concludes that the Cook County Sheriffs Office ( Sheriffs Office)  did not\ncomply with the time requirements of FOIA w\nFOIA request as a \" voluminous\n\nyne Mitchell' s\n\nrequest.\n\nMr. Mitchell submitted a FOIA request dated January 11,  2016,  to the Sheriffs\n\nOffice seeking all Office of Professional Review reports relating to 51 specified grievances from\n20113 to 2015,  together with stationary security camera footage relating to thos rievance\nMitchell submitted this request while he was incarcerated in a State prison and requested that the\n\nSheriffs Office waive the fees for photocopies.\n\nIn its response to this Request\n\nfor Review,  the Sheriffs Office asserts that it\n\nreceived the request on January 25,  2016.   On February 1,  2016,  the Sheriffs Oce notif\nMitchell\nthat it was extending the time for response under section 3 of FOIA ( 5 ILCS 140/ 3\nWest 2014)),  and that it would respond on or before February 8,  2016.   On February 8,  2016,\nthe Sheriffs O d Mr.  Mitchell\nrequest\"  under section 3. 6 of FOIA ( 5 ILCS 140/ 3. 6 ( West 2014))  on the basis that it required the\n\nthat it was treating his request as a \" voluminous\n\n500 South Second Street, Springfield,\n\n100 West Randolph Street, Chicago,\n\nIllinois 62706 • ( 217) 782- 1090 •  TTY: ( 217) 785- 2771 •  Fax:( 217) 782- 7046\nFax:( 312) 814- 3806\n\n312) 814- 3000 •  TTY: ( 312) 814- 3374 • \n\nIllinois, 60601 • (\n\n1001 East Main, Carbondale,\n\nIllinois 62901•(\n\n618) 529- 6400• TTY: ( 618) 529- 6403• Fax:( 618) 529- 6416\n\n\fhell\n\nMs.  Elizabeth Scannell\n\nJuly 12,  2016\nPage 2\n\ncompilation of more than 500' pages of letter or legal- sized pages of public records.   Under\n\nsection 3. 6,  a requester has 10 business days to amend the request\nbody will no longer treat the request as voluminous.  \nsection 3. 6 notification,  the Sheriffs Office notified him on February 24,  2016,  that it was\nextending the time for response until March 2,  2016.   On March 2,  2016,  the Sheriffs Office\nnoti hell that it had compiled the responsive records,  and that it would charge him\n\nin such a way that the public\nhell did not respond to the\n\nford copies in excess of the first 50 pages under section 6( b)  of FOIA ( 5 ILCS 140/ 6(b) ( West\n2014)).   On March 30,  2016,  the Sheriffs Office\nresponsive to his request without charge.\n\nhell the first 50 pages of records\n\nOn April 19,  2016,  this office sent a copy of the Request\n\nfor Review to the\n\nSheriffs Office and requested a detailed description of the handlin ll's request,\nincluding the date on which the Sheriffs Office received the request,  and an explanation of the\nlegal and factual bases for treating the request as voluminous under section 3. 6 of FOIA.  The\nSheriffs Office submitted a response on May 2,  2016.   On May 11,  2016, this office forwarded a\ncopy of the Sheriffs Office's respons\n\nhell; he did not reply.\n\nDETERMINATION\n\nDefinition of Voluminous Request\n\nSection 2( h)  of FOIA ( 5 ILCS 140/ 2( h) ( West 2015 Supp.))  defines a\n\nvoluminous\n\nrequest\"  as:\n\na request that: ( i)  includes more than 5 individual requests\nfor more than 5 different categories of records or a combination of\nindividual requests that total requests for more than 5 different\n\ncategories of records in a period of 20 business days;  or( ii)\nrequires the compilation of more than 500 letter or legal- sized\n\npages of public records unless a single requested record exceeds\n\n500 pages.  \" Single requested record\"  may include,  but is not\nlimited to, one report,  form, e- mail,  letter, memorandum, book,\n\nmap,  microfilm,  tape,  or recording.\n\nIn its response to this office,  the Sheriffs Office asserted that the records responsiv o Mr.\n\nll's request\ninclude 490 pages of responsive reports,  16 photographs,  and two video files.\nThe Sheriffs Office subsequently clarified in correspondence to this office that the photographs\nwere stored in an electronic format, but would be printed with a single photograph to a page in\n\norder to provide paper copie\nhell.  In total,  the request required the compilation of\n506 pages of printed material.,  Accordingly,  we conclude that because the request required the\n\n\fhell\n\nMs.  Elizabeth Scannell\n\nJuly 12,  2016\nPage 3\n\ncompilation of more than 500 pages of public records,  the Sheriff' s Office did not improperly\ntreat the request as a \" voluminous request.\"'\n\nNotification of Voluminous Request\n\nSection 3. 6( a)  of FOIA ( 5 ILCS 140/ 3. 6( a) ( West 2014))  describes the procedures\n\nfor' notifying a requester that a public body is treating a request as a voluminous request, and\nprovides in relevant part that \"[ n] otwithstanding any provision of this Act to the contrary,  a\npublic body shall respond to a voluminous request within 5 business days after receipt.\"\nEmphasis added.)   In addition,  section 3( i)  of FOIA ( 5 ILCS 140/ 3( i) ( West 2014))  provides\n\nthat:\n\nt] he time periods for compliance or denial of a request to\n\ninspect or copy records set out in this Section shall not apply to\nrequests for records made for a commercial purpose, requests by a\nrecurrent\n\nrequester,  or voluminous requests.   Such requests shall\n\nbe subject to the provisions of Sections 3. 1,  3. 2,  and 3. 6,  as\n\napplicable.  ( Emphasis added.)\n\nThe Sheriffs Office first responde\n\nll's request on February 1,  2016,\n\nby extending the time to respond,  until February 8,  2016,  citing section 3.   Typically,  a public\nbody may assert an extension of time of up to five business days for any of the seven reasons\nenumerated in section 3( e) ( 5 ILCS 140/ 3( e) ( West 2014)).  The plain language of section 3. 6( a),\nhowever,  requires that a public body notify a requester that it is treating a request as a\nvoluminous request within five business days of receipt of the request,  and does not provide for\nan extension of time to respond under section 3( e).   In addition,' section 3( i) specifies that the\ntime periods for compliance provided in section 3. 6,  rather than the time periods in section 3,\ngovern voluminous requests.   It is undisputed that the Sheriffs Office did not no hell\nthat it was treating his request as a voluminous request until February 8,  2016,  which was more\nthan five business days after it received the request on January 25,  2016.   Accordingly, this\noffice concludes that the Sheriffs Office did not timely no hell that it was treating\nhis request as a \" voluminous request.\"\n\nI\n\nhell has contested the Sheriffs Office's treatment of his request as\n\nvoluminous,  but has not sought a specific remedy.  In contrast to sections 3( d)  and 3( f) of FOIA\n5 I!LCS 140/ 3( d), ( 1) ( West 2014)),  section 3. 6 does not provide for a fee waiver( or any other\npenalty)  in the case of a late response.   Based on the information provided by the Sheriffs\n\nrequest\" \n\nin section 2( h) also applies.',\n\nThis office does not address the Sheriffs Office' s assertion that the first definition of\" voluminous\n\n\fMs.  Elizabeth Scannell\nJuly 12,  2016\nPage 4\n\nOffice,  except for its delayed assertion that the request was voluminous,  it complied with the\nprovisions of section 3. 6.   On March 30,  2016,  the Sheriffs Office furnished the first 50 pages of\nrecords to\nwithout charge.   Under these circumstances,  FOIA does not prohibit the\nSheriffs Office from charging fees in accordance with section 6( b)  of FOIA for paper copies of\nthelremaining records.   Accordingly, no remedial action is required.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnotirequire the issuance of a binding opinion.  This letter shall serve to close this matter.   If you\nhave any questions,  please contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nNEIL P.  OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n40373 f 36 vol req proper improper county\n\nI\n\nII\n\nmmmmmmnnnMr.\n\nI\nI\nI\n,\nI\ni\ni\n\f","full_text_pre_reocr":"F' 6\n\nG\n\nkrm.\n\ni\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nOFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly\n\nIllinois 60644\n\nMs. Elizabeth Scannell\n\nAssistant General Counsel\n\nSheriffs Office of Cook County\n50 West Washington, Room 704\nChicago, Illinois 60632\n\nRE: FOIA Request\n\nfor Review— 2016 PAC 40\n\nr Mr. Mitchell and Ms. Scannell:\n\nThis determination is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons set forth below, the\nPublic Access Bureau concludes that the Cook County Sheriffs Office (Sheriffs Office) did not\ncomply with the time requirements of FOIA w\nFOIA request as a \" voluminous\n\nyne Mitchell's\n\nrequest.\n\nMr. Mitchell submitted a FOIA request dated January 11, 2016, to the Sheriffs\n\nOffice seeking all Office of Professional Review reports relating to 51 specified grievances from\n20113 to 2015, together with stationary security camera footage relating to thos rievance\nMitchell submitted this request while he was incarcerated in a State prison and requested that the\n\nSheriffs Office waive the fees for photocopies.\n\nIn its response to this Request\n\nfor Review, the Sheriffs Office asserts that it\n\nreceived the request on January 25, 2016. On February 1, 2016, the Sheriffs Oce notif\nMitchell\nthat it was extending the time for response under section 3 of FOIA (5 ILCS 140/ 3\nWest 2014)), and that it would respond on or before February 8, 2016. On February 8, 2016,\nthe Sheriffs O d Mr. Mitchell\nrequest\" under section 3. 6 of FOIA (5 ILCS 140/ 3. 6 (West 2014)) on the basis that it required the\n\nthat it was treating his request as a \" voluminous\n\ncompilation of more than 500' pages of letter or legal- sized pages of public records. Under\n\nsection 3. 6, a requester has 10 business days to amend the request\nbody will no longer treat the request as voluminous. \nsection 3. 6 notification, the Sheriffs Office notified him on February 24, 2016, that it was\nextending the time for response until March 2, 2016. On March 2, 2016, the Sheriffs Office\nnoti hell that it had compiled the responsive records, and that it would charge him\n\nin such a way that the public\nhell did not respond to the\n\nford copies in excess of the first 50 pages under section 6(b) of FOIA (5 ILCS 140/ 6(b) (West\n2014)). On March 30, 2016, the Sheriffs Office\nresponsive to his request without charge.\n\nhell the first 50 pages of records\n\nOn April 19, 2016, this office sent a copy of the Request\n\nfor Review to the\n\nSheriffs Office and requested a detailed description of the handlin ll's request,\nincluding the date on which the Sheriffs Office received the request, and an explanation of the\nlegal and factual bases for treating the request as voluminous under section 3. 6 of FOIA. The\nSheriffs Office submitted a response on May 2, 2016. On May 11, 2016, this office forwarded a\ncopy of the Sheriffs Office's respons\n\nhell; he did not reply.\n\nDETERMINATION\n\nDefinition of Voluminous Request\n\nSection 2(h) of FOIA (5 ILCS 140/ 2(h) (West 2015 Supp.)) defines a\n\nvoluminous\n\nrequest\" as:\n\na request that: (i) includes more than 5 individual requests\nfor more than 5 different categories of records or a combination of\nindividual requests that total requests for more than 5 different\n\ncategories of records in a period of 20 business days; or(ii)\nrequires the compilation of more than 500 letter or legal- sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \" Single requested record\" may include, but is not\nlimited to, one report, form, e- mail, letter, memorandum, book,\n\nmap, microfilm, tape, or recording.\n\nIn its response to this office, the Sheriffs Office asserted that the records responsiv o Mr.\n\nll's request\ninclude 490 pages of responsive reports, 16 photographs, and two video files.\nThe Sheriffs Office subsequently clarified in correspondence to this office that the photographs\nwere stored in an electronic format, but would be printed with a single photograph to a page in\n\norder to provide paper copie\nhell. In total, the request required the compilation of\n506 pages of printed material., Accordingly, we conclude that because the request required the\n\ncompilation of more than 500 pages of public records, the Sheriff's Office did not improperly\ntreat the request as a \" voluminous request.\"'\n\nNotification of Voluminous Request\n\nSection 3. 6(a) of FOIA (5 ILCS 140/ 3. 6(a) (West 2014)) describes the procedures\n\nfor' notifying a requester that a public body is treating a request as a voluminous request, and\nprovides in relevant part that \"[ n] otwithstanding any provision of this Act to the contrary, a\npublic body shall respond to a voluminous request within 5 business days after receipt.\"\nEmphasis added.) In addition, section 3(i) of FOIA (5 ILCS 140/ 3(i) (West 2014)) provides\n\nthat:\n\nt] he time periods for compliance or denial of a request to\n\ninspect or copy records set out in this Section shall not apply to\nrequests for records made for a commercial purpose, requests by a\nrecurrent\n\nrequester, or voluminous requests. Such requests shall\n\nbe subject to the provisions of Sections 3. 1, 3. 2, and 3. 6, as\n\napplicable. (Emphasis added.)\n\nThe Sheriffs Office first responde\n\nll's request on February 1, 2016,\n\nby extending the time to respond, until February 8, 2016, citing section 3. Typically, a public\nbody may assert an extension of time of up to five business days for any of the seven reasons\nenumerated in section 3(e) (5 ILCS 140/ 3(e) (West 2014)). The plain language of section 3. 6(a),\nhowever, requires that a public body notify a requester that it is treating a request as a\nvoluminous request within five business days of receipt of the request, and does not provide for\nan extension of time to respond under section 3(e). In addition,' section 3(i) specifies that the\ntime periods for compliance provided in section 3. 6, rather than the time periods in section 3,\ngovern voluminous requests. It is undisputed that the Sheriffs Office did not no hell\nthat it was treating his request as a voluminous request until February 8, 2016, which was more\nthan five business days after it received the request on January 25, 2016. Accordingly, this\noffice concludes that the Sheriffs Office did not timely no hell that it was treating\nhis request as a \" voluminous request.\"\n\nI\n\nhell has contested the Sheriffs Office's treatment of his request as\n\nvoluminous, but has not sought a specific remedy. In contrast to sections 3(d) and 3(f) of FOIA\n5 I!LCS 140/ 3(d), (1) (West 2014)), section 3. 6 does not provide for a fee waiver(or any other\npenalty) in the case of a late response. Based on the information provided by the Sheriffs\n\nrequest\" \n\nin section 2(h) also applies.',\n\nThis office does not address the Sheriffs Office's assertion that the first definition of\" voluminous\n\nOffice, except for its delayed assertion that the request was voluminous, it complied with the\nprovisions of section 3. 6. On March 30, 2016, the Sheriffs Office furnished the first 50 pages of\nrecords to\nwithout charge. Under these circumstances, FOIA does not prohibit the\nSheriffs Office from charging fees in accordance with section 6(b) of FOIA for paper copies of\nthelremaining records. Accordingly, no remedial action is required.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnotirequire the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\nNEIL P. OLSON\n\nAssistant Attorney General\nPublic Access Bureau\n\n40373 f 36 vol req proper improper county\n\nI\n\nII\n\nmmmmmmnnnMr.\n\nI\nI\nI\n,\nI\ni\ni","plain_summary_pre_resummarize":null,"card_headline":"Office of Professional Review reports and security camera footage of grievances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A requester asked for various internal reports and security footage from the Cook County Sheriff's Office. The Sheriff's Office initially processed the request normally but later tried to label it as a 'voluminous request' to extend deadlines, which the PAC found was done too late. Because the agency eventually provided the records, the PAC closed the matter without requiring further action.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-40373/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 12, 2016\n\n \n\n \n\nMs. Elizabeth Scannell\nAssistant General Counsel\nSheriff's Office of Cook County\n50|West Washington, Room 704\nChicago, Illinois 60632 |\n\nRE: FOIA Request for Review — 2016 PAC 40373\n\n| |\nDear MB and Ms. Scannell:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons set forth below, the\nPublic Access Bureau concludes that the Cook County Sheriff's Office (Sheriff's Office) did not\ncomply with the time requirements of FOIA when it treated\nFOIA request as a \"voluminous request.\"\n\n|\n\nEEE ubmitted a FOIA request dated January 11, 2016, to the Sheriff's\nOffice seeking all Office of Professional Review reports relating to 51 specifi ied grievances from\n2013 to 2015, together with stationary security camera footage relating to those grievances.\n\nBEE submitted this request while he was incarcerated in a State prison and requested that the\n\nSheriff's Office waive the fees for photocopies.\n|\n| In its response to this Request for Review, the Sheriff's Office asserts that it\nreceived the request on January 25, 2016. On February 1, 2016, the Sheriff's Office notified [i\nthat it was extending the time for response under section 3 of FOIA (5 ILCS 140/3\n\n(West 2014)), and that it would respond on or before February 8, 2016. On February 8, 2016,\nthe Sheriff's Office notified IEEE that it was treating his request as a \"voluminous\nrequest\" under section 3.6 of FOIA (5 ILCS 140/3.6 (West 2014)) on the basis that it required the\n\n|\n\n \n\n \n\n \n\n| 500 South Second Street, Springfield, Illinois 62706 * (217) 782-1090 * TTY: (217) 785 -2771 » Fax: (217) 782-7046\n| 100 West Randolph Street, Chicago, Illinois, 60601 * (312) 814-3000 © TTY: (312) 814-3374 + Fax: (312) 814-3806\n|\n\n1001 East Main, Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 » Fax: (618) 529-6416\n\nMs. Elizabeth Scannell |\nJuly 12, 2016 !\nPage 2\n|\n) |\ncompilation of more than 500i pages of letter or legal-sized pages of public records. Under\nsection 3.6, a requester has 10 business days to amend the request in such a way that the public\nbody will no longer treat the request as voluminous. When [ME did not respond to the\nsection 3.6 notification, the Sheriff's Office notified him on February 24, 2016, that it was\nextendin the time for response until March 2, 2016. On March 2, 2016, the Sheriff's Office\nnotified I that it had compiled the responsive records, and that it would charge him\nfor, copies in excess of the first 50 pages under section 6(b) of FOIA (5 ILCS 140/6(b) (West\n2014)). On March 30, 2016, the Sheriff's Office <n first 50 pages of records\n\nresponsive to his request without charge.\n\n| On April 19, 2016, this office sent a copy of the Request for Review to the\nSheriff's Office and requested’ a detailed description of the handling of MT request,\nincluding the date on which the Sheriff's Office received the request, and an explanation of the\nlegal and factual bases for treating the request as voluminous under section 3.6 of FOIA. The\nSheriffs Office submitted a response on May 2, 2016, On May 11, 2016, this office forwarded a\ncopy of the Sheriff's Office's response to a. he did not reply.\n\n| |\n: DETERMINATION\n\nDefinition of Voluminous Request\n\nSection 2(h) of FOIA (5 ILCS 140/2(h) (West 2015 Supp.)) defines a\n\"voluminous request\" as: |\n' a request that: (i) includes more than 5 individual requests\n\nfor more than 5 different categories of records or a combination of\n\nindividual requests that total requests for more than 5 different\n\ncategories of records in a period of 20 business days; or (ii)\n\nrequires the compilation of more than 500 letter or legal-sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \"Single requested record\" may include, but is not\n\nlimited to, one'report, form, e-mail, letter, memorandum, book,\n\nmap, microfilm, tape, or recording.\n\n|\n\nIn its response to this office, the Sheriff's Office asserted that the records responsive to | |\nBEE coc.cst include 490 pages of responsive reports, 16 photographs, and two video files.\nThe Sheriff's Office subsequently clarified in correspondence to this office that the photographs\nwere stored in an electronic format, but would be printed with a single photograph to a page in\norder to provide paper copies yo In total, the request required the compilation of\n506 pages of printed material., Accordingly, we conclude that because the request required the\n\n|\n\n}\n|\n|\n\nMs. Elizabeth Scannell\nJuly 12, 2016\nPage 3\n\ncompilation of more than 500 pages of public records, the Sheriff's Office did not improperly\ntreat the request as a \"voluminous request.\"\n\nNotification of Voluminous Request\n\nSection 3.6(a) of FOIA (5 ILCS 140/3.6(a) (West 2014)) describes the procedures\nfor notifying a requester that a public body is treating a request as a voluminous request, and\nprovides in relevant part that \"/nJotwithstanding any provision of this Act to the contrary, a\npublic body shall respond to a voluminous request within 5 business days after receipt.\"\n(Emphasis added.) In addition, section 3(i) of FOIA (5 ILCS 140/3(i) (West 2014)) provides\nthat:\n\n[t]he time periods for compliance or denial of a request to\ninspect or copy records set out in this Section shall not apply to\nrequests for records made for a commercial purpose, requests by a\nrecurrent requester, or voluminous requests. Such requests shall\nbe subject to the provisions of Sections 3.1, 3.2, and 3.6, as\n| applicable. (Emphasis added.)\n\n \n\nThe Sheriff's Office first responded . 00 request on February 1, 2016,\nby extending the time to respond, until February 8, 2016, citing section 3. Typically, a public\nbody may assert an extension of time of up to five business days for any of the seven reasons\nenumerated in section 3(e) (5 ILCS 140/3(e) (West 2014)). The plain language of section 3.6(a),\nhowever, requires that a public body notify a requester that it is treating a request as a\nvoluminous request within five business days of receipt of the request, and does not provide for\nan extension of time to respond under section 3(e). In addition, section 3(i) specifies that the\ntime periods for compliance provided in section 3.6, rather than the time periods in section 3\ngovern voluminous requests. It is undisputed that the Sheriff's Office did not notify fT\nthat it was treating his request as a voluminous request until February 8, 2016, which was more\nthan five business days after it received the request on January 25, 2016, Accordingly, this\noffice concludes that the Sheriff's Office did not timely notify a that it was treating\nhis request as a \"voluminous request.\"\n\n| | contested the Sheriff's Office's treatment of his request as\nvoluminous, but has not sought a specific remedy. In contrast to sections 3(d) and 3(f) of FOIA\n(5 ILCS 140/3(d), (f) (West 2014)), section 3.6 does not provide for a fee waiver (or any other\npenalty) in the case of a late response. Based on the information provided by the Sheriff's\n\n'This office does not address the Sheriff's Office's assertion that the first definition of “voluminous\n\nrequest\" in section 2(h) also applies.,\n\nMs\n\n. Elizabeth Scannell\nJuly 12, 2016\nPage 4\n\nOffice, except for its delayed assertion that the request was voluminous, it complied with the\n\nprovisions of section 3.6. On March 30, 2016, the Sheriff's Office furnished the first 50 pages of\nrecords to without charge. Under these circumstances, FOIA does not prohibit the\n\nSheriff's Office from charging fees in accordance with section 6(b) of FOIA for paper copies of\n\nthe!\n\nnot\n\n \n\nremaining records. Accordingly, no remedial action is required.\nThe Public Access Counselor has determined that resolution of this matter does\nrequire the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Springfield address on the first page of this letter.\n\nVery truly yours,\n\n| NEIL P. OLSON '\nAssistant Attorney’ General\n\nPublic Access Bureau\n\n40373 £ 36 vol req proper improper county"}
{"id":877,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-03-18","case_number":null,"request_numbers":["40554"],"title":"Joliet Police Department may withhold fingerprints and DNA as private information under 7(1)(b)","filename":"40554, issued March 18, 2016.pdf","rel_path":null,"word_count":707,"summary":"A requester sought copies of his own fingerprints and DNA records from the Joliet Police Department, which the Department denied as private information. The PAC determined that the Department properly withheld the records under the private information exemption.","plain_summary":"A man requested his own fingerprint and DNA records from the Joliet Police Department, but the department refused to release them, citing privacy laws. The Attorney General's office agreed with the department, stating that biometric data like fingerprints and DNA are considered 'private information' under Illinois law. While the department is allowed to release these records if they choose to, they are not legally required to do so under FOIA.","holding":"The Joliet Police Department did not violate FOIA by withholding the requester's fingerprints and DNA records as private information.","legal_question":"Whether fingerprints and DNA records constitute 'private information' exempt from disclosure under section 7(1)(b) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Joliet Police Department","requesting_party":"Centralia Correctional Center inmate","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought access to his own biometric identifiers, specifically fingerprints and DNA records, held by a police department.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b/40554%2C%20issued%20March%2018%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["biometric data","fingerprints","DNA","private information","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 18,  2016\n\nCentralia Correctional Center\nP. O. Box 7711\n\nCentralia,  Illinois 62801\n\nRE:  FOIA Request\n\nfor Review — 2016 PAC 40554\n\nThis determination letter is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)).  For the reasons that follow, the\nPublic Access Bureau has determined that no further action is warranted. \n\nOn January 14,  2016,  you submitted a FOIA request to the Joliet Police\n\nDepartment ( Department)  seeking,  in pertinent part,  copies of your fingerprints and D.N.A. from\ncase # 1150317004221.  On February 2,  2016,  the Department denied your request pursuant\nto\nsection 7( 1)( b)  of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2014),  as amended by Public Acts 99- 298, \neffective August 6,  2015;  99- 346,  effective January 1,  2016).  On February 26,  2016,  you\nsubmitted this Request\n\nfor Review contesting the Department' s denial. \n\nSection 7( 1)( b)  exempts from disclosure \"[ p] rivate information, unless disclosure\nis required by another provision of this Act, a State or federal law or a court order.\"  Section 2( c- \n5)  of FOIA (5 ILCS 140/ 2( c- 5) ( West 2014),  as amended by Public Act 99- 78,  effective July 20, \n2015)  defines \" private information\"  to include: \n\nU] nique identifiers,  including a person' s social security number, \ndriver' s license number,  employee identification number,  biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records,  home or personal telephone\n\nnumbers,  and personal email addresses.  Private information also\nincludes home address and personal license plates,  except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. ( Emphasis added.) \n\n500 South Second Street, Springfield, Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217) 785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fPage 2\n\nThe term \" biometric identifier\"  is not defined in FOIA.  However,  section 10 of\n\nthe Biometric Information Privacy Act ( 740 ILCS 14/ 10 ( West 2014))  defines \" biometric\nidentifier\"  as \" a retina or iris scan, fingerprint,  voiceprint,  or scan of hand or face geometry\" \nemphasis added),  and it should be read together with section 2( c- 5)  of FOIA.  See People v. \nTaylor,  221 Ill. 2d 157,  161 n. 1 ( 2006) (\" The doctrine of in pari materia provides that when two\nstatutes deal with the same subject,  they will be considered with reference to each other to give\nthem a harmonious effect.\").  Thus,  fingerprints are considered unique identifiers and may be\nwithheld as exempt as \" private information\"  under section 2( c- 5).  The Public Access Bureau has\nalso previously determined that DNA is a biometric identifier and,  therefore, \" private\ninformation\"  under the section 2( c- 5)  definition of that term.  III. Att'y Gen. PAC Req. Rev.  Ltr. \n12531,  issued May 22,  2012,  at 3.  Accordingly,  this office concludes that the Department did\nnot violate FOIA by withholding your fingerprints and DNA pursuant\nFOIA,  and that no further action is warranted in this matter. \n\nto section 7( 1)( b)  of\n\nHowever,  this office also notes that the Department\n\nis not required to assert that\n\nall \" private information\"  is exempt,  and may exercise its discretion to disclose records to you\nconcerning your own biometric identifiers.  Ill. Att'y Gen. PAC Req.  Rev. Ltr. 15182,  issued\nOctober 5,  2011,  at 3;  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. 23175,  issued May 12,  2015,  at 3. \n\nIf you have any questions,  you may contact me at the Springfield address listed on\n\nthe first page of this letter.  This correspondence serves to close the matter. \n\nVery truly yours, \n\nISTOPHBR R.  BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n40554 f no fi war pd\n\ncc: \n\nMr. Brian Dupuis\n\nDeputy Chief of Police\nTechnical Services\n\nJoliet Police Department\n\n150 West Washington\nJoliet,  Illinois 60432\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A police department's fingerprints and DNA records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-40554/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 18, 2016\n\nCentralia Correctional Center\nP. O. Box 7711\n\nCentralia, Illinois 62801\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 40554\n\nThis determination letter is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2014)). For the reasons that follow, the\nPublic Access Bureau has determined that no further action is warranted. \n\nOn January 14, 2016, you submitted a FOIA request to the Joliet Police\n\nDepartment (Department) seeking, in pertinent part, copies of your fingerprints and D.N.A. from\ncase # 1150317004221. On February 2, 2016, the Department denied your request pursuant\nto\nsection 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2014), as amended by Public Acts 99- 298, \neffective August 6, 2015; 99- 346, effective January 1, 2016). On February 26, 2016, you\nsubmitted this Request\n\nfor Review contesting the Department's denial. \n\nSection 7(1)(b) exempts from disclosure \"[ p] rivate information, unless disclosure\nis required by another provision of this Act, a State or federal law or a court order.\" Section 2(c- \n5) of FOIA (5 ILCS 140/ 2(c- 5) (West 2014), as amended by Public Act 99- 78, effective July 20, \n2015) defines \" private information\" to include: \n\nU] nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\n\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.) \n\nThe term \" biometric identifier\" is not defined in FOIA. However, section 10 of\n\nthe Biometric Information Privacy Act (740 ILCS 14/ 10 (West 2014)) defines \" biometric\nidentifier\" as \" a retina or iris scan, fingerprint, voiceprint, or scan of hand or face geometry\" \nemphasis added), and it should be read together with section 2(c- 5) of FOIA. See People v. \nTaylor, 221 Ill. 2d 157, 161 n. 1 (2006) (\" The doctrine of in pari materia provides that when two\nstatutes deal with the same subject, they will be considered with reference to each other to give\nthem a harmonious effect.\"). Thus, fingerprints are considered unique identifiers and may be\nwithheld as exempt as \" private information\" under section 2(c- 5). The Public Access Bureau has\nalso previously determined that DNA is a biometric identifier and, therefore, \" private\ninformation\" under the section 2(c- 5) definition of that term. III. Att'y Gen. PAC Req. Rev. Ltr. \n12531, issued May 22, 2012, at 3. Accordingly, this office concludes that the Department did\nnot violate FOIA by withholding your fingerprints and DNA pursuant\nFOIA, and that no further action is warranted in this matter. \n\nto section 7(1)(b) of\n\nHowever, this office also notes that the Department\n\nis not required to assert that\n\nall \" private information\" is exempt, and may exercise its discretion to disclose records to you\nconcerning your own biometric identifiers. Ill. Att'y Gen. PAC Req. Rev. Ltr. 15182, issued\nOctober 5, 2011, at 3; Ill. Att' y Gen. PAC Req. Rev. Ltr. 23175, issued May 12, 2015, at 3. \n\nIf you have any questions, you may contact me at the Springfield address listed on\n\nthe first page of this letter. This correspondence serves to close the matter. \n\nVery truly yours, \n\nISTOPHBR R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n40554 f no fi war pd\n\ncc: \n\nMr. Brian Dupuis\n\nDeputy Chief of Police\nTechnical Services\n\nJoliet Police Department\n\n150 West Washington\nJoliet, Illinois 60432"}
{"id":878,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-13","case_number":null,"request_numbers":["40605"],"title":"Champaign-Urbana Mass Transit District improperly withheld personnel file under 7(1)(c)","filename":"40605, issued April 13, 2018.pdf","rel_path":null,"word_count":3496,"summary":"The requester sought the personnel file of a bus driver involved in an incident, which the Champaign-Urbana Mass Transit District withheld under FOIA Section 7(1)(c). The PAC determined that the District improperly withheld portions of the file and ordered their disclosure, subject to specific redactions.","plain_summary":"A requester asked for a bus driver's personnel file following an incident, but the transit district refused to provide it, citing privacy exemptions. The Attorney General's office reviewed the request and decided that the district was wrong to withhold the entire file. The district was ordered to release the records while redacting sensitive personal information like social security numbers and home addresses.","holding":"The Champaign-Urbana Mass Transit District improperly withheld portions of the requested personnel file.","legal_question":"Whether the Champaign-Urbana Mass Transit District properly invoked section 7(1)(c) of FOIA to withhold an employee's personnel file.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Champaign-Urbana Mass Transit District","requesting_party":"Mr. Alyx J. Parker","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought the personnel file of a bus driver involved in a specific transit incident.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/40605%2C%20issued%20April%2013%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","privacy exemption","FOIA request","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 13,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Alyx J.  Parker\n\nMeyer Capel\n\n306 West Church Street\n\n[street address redacted for site publication -- see original PDF]\naparker@meyercapel. com\n\nRE:  FOIA Request for Review — 2016 PAC 40605\n\nDear\n\nand Mr. Parker: \n\nThis determination is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons stated below,  the\nPublic Access Bureau concludes that the Champaign -Urbana Mass Transit District ( District) \nimproperly withheld certain portions of the records responsive to\n1,  2016,  FOIA request. \n\nFebruary\n\nOn that date, \n\nsubmitted a FOIA request to the District seeking, \n\namong other things,  the personnel file of the driver operating bus 1194 at approximately 1: 37 pm\non February 1,  2016.  On February 12,  2016,  the District denied\nto section 7( 1)( c)  of FOIA ( 5 ILCS 140/ 7( 1)( e) ( West 2014),  as amended\npersonnel\nby Public Acts 99- 298,  effective August 6,  2015;  99- 346,  effective January 1,  2016).  On March\nRequest\n6,  2016,  this office received\nFOIA request. \n\nfor Review contesting the denial of his\n\nrequest for the\n\nfile pursuant\n\nOn March 9,  2016, this office sent the District a copy of the Request for Review, \n\nand requested copies of the redacted and un -redacted responsive records,  as well as a detailed\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Alyx J.  Parker\n\nApril 13,  2018\n\nPage 2\n\nexplanation of the factual and legal bases for the asserted exemption.  On March 18,  2016, the\n\nDistrict furnished this office with the requested records and a written answer.  On March 23,  this\n\noffice forwarded a copy of the District' s answer to\n\nhe replied on April\n\n1,  2016. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2014);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department ofPublic Health, 218 Ill. 2d 390,  415 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2014).  The exemptions from disclosure are to be narrowly construed.  Lieber v. \nBoard of Trustees of Southern Illinois University,  176 Ill. 2d 401,  407 ( 1997). \n\nSection 7( 1)( b)  of FOIA\n\nAlthough not cited in the District' s response to\n\nFOIA request or to\n\nthis office,  section 7( 1)( b)  of FOIA (5 ILCS 140/ 7( 1)( b) ( West 2014))  exempts from disclosure\n\np] rivate information,  unless disclosure is required by another provision of this Act,  a State or\nfederal law or a court order.\"  Section 2( c- 5)  of FOIA (5 ILCS 140/ 2( c- 5) ( West 2014))  defines\n\nprivate information\"  as: \n\nU] nique identifiers,  including a person' s social security number, \ndriver's license number, employee identification number, biometric\n\nidentifiers, personal financial information, passwords or other\n\naccess codes,  medical\n\nrecords,  home or personal\n\ntelephone\n\nnumbers,  and personal email addresses.  Private information also\n\nincludes home address and personal license plates,  except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nThe Attorney General has also held that a person' s signature is a unique identifier that may be\nredacted as private information.  See,  e.g., I11.  Att' y Gen.  Pub.  Acc.  Op.  No.  14- 015,  issued\nNovember 25,  2014,  at 11.  The personnel records withheld by the District contain social security\nnumbers,  driver' s license numbers,  home addresses,  personal\ntelephone numbers,  and signatures. \nBecause all of those items constitute \" private information\"  as defined by FOIA,  the District did\nnot improperly withhold that information from the responsive records pursuant to section 7( 1)( b) \nof FOIA. \n\n\fMr.  Alyx J.  Parker\n\nApril 13,  2018\n\nPage 3\n\nSection 7( 1)( c)  of FOIA\n\nThe District asserted that the records contained in the employee' s personnel file\n\nare exempt in their entireties pursuant to section 7( 1)( c)  of FOIA,  which exempts from\n\ndisclosure: \n\nPersonal\n\ninformation contained within public records,  the\n\ndisclosure of which would constitute a clearly unwarranted\ninvasion ofpersonal privacy,  unless the disclosure is consented to\nin writing by the individual subjects of the information. \nUnwarranted invasion of personal privacy\"  means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject' s right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation.  The disclosure of information that bears on the\npublic duties ofpublic employees and officials shall not be\nconsidered an invasion ofpersonal privacy. ( Emphasis added.) \n\nA public body' s contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis.  Chicago\nJourneymen Plumbers'  Local Union 130,  U.A.  v.  Department of Public Health,  327 Ill. App.  3d\n192,  196 ( 1st Dist.  2001).  The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met.  Schessler v.  Department of\nConservation,  256 Ill. App. 3d 198,  202 ( 4th Dist.  1994).  Illinois courts consider the following\nfactors in determining whether disclosure of information would constitute an unwarranted\nthe plaintiffs interest in disclosure, ( 2)  the public interest in\ninvasion of personal privacy: \"(\ndisclosure, ( 3)  the degree of invasion of personal privacy,  and ( 4)  the availability of alternative\nmeans of obtaining the requested information.\"  National Ass' n of Criminal Defense Lawyers v. \nChicago Police Department,  399 Ill. App.  3d 1,  13 ( 1st Dist.  2010). \n\n1) \n\nIn its response to this office,  the District relied upon an opinion letter issued by\n\nthe Illinois Attorney General,  Ill. Att' y Gen.  Op.  No. S- 1484,  issued April 14,  1980,  and two\nIllinois Appellate Court opinions,  State Journal -Register v.  University of Illinois Springfield, \n2013 IL App ( 4th)  120881,  994 N.E.  2d 705 ( 2013)  and Copley Press,  Inc. v. Board of Education\nfor Peoria School District No.  150,  35 Ill. App.  3d 321 ( 2005),  for its assertion that records\ncontained within a personnel file are per se exempt as personal information under section 7( 1)( c) \nof FOIA.  However, the 1980 opinion and the opinion in Copley Press predated the significant\nrevision of FOIA by the General Assembly in Public Act 96- 542,  effective January 1,  2010, \nwhich eliminated the per se exemption for information contained in employee' s personnel\n\nfiles\n\n\fMr. Alyx J.  Parker\n\nApril 13,  2018\n\nPage 4\n\nand added the current version of the personal privacy exemption in section 7( 1)( c)  of FOIA. \nBefore January 1,  2010, the personal privacy exemption was found in section 7( 1)( b)  of FOIA\nsee 5 ILCS 140/ 7( 1)( b) ( West 2008))  and exempted from disclosure: \n\nb)  Information that, if disclosed,  would constitute a clearly\nunwarranted invasion of personal privacy,  unless the disclosure is\nconsented to in writing by the individual subjects of the\ninformation.  The disclosure of information that bears on the\npublic duties ofpublic employees and;officials shall not be\nconsidered an invasion ofpersonal privacy.  Information\nexempted under this subsection ( b)  shall\n\ninclude but is not limited\n\nto: \n\nii) personnelfiles and personal information maintained\n\nwith respect to employees,  appointees or elected officials of\n\nany public body or applicants for those positions[.] \nEmphasis added) \n\nBy eliminating the previous version of, section 7( 1)( b)  and adding the current\n\nversion of section 7( 1)( c),  the General Assembly \" replaced the per se exemptions with a\nbalancing test requiring a public body to balance the privacy rights of an employee and the\ninterests of the public in obtaining information concerning the employee.\"  Ill. Att'y Gen. Pub. \nAcc.  Op.  No.  14- 015,  issued November 25,  2014,  at 5.  As part of that balancing,  the General\nAssembly specifically stated that information that bears on the public duties of public employees\nis not considered an invasion of personal privacy.  The Attorney General has concluded that\nthere is a compelling public interest\nin disclosure of a public employee' s credentials to enable\nthe public to assess the employee' s qualifications to perform his or her public duties.\"  Ill. Att' y\nGen.  Pub.  Acc.  Op.  No.  14- 015,  issued November 25,  2014,  at 6.  Because employment\napplications,  resumes,  employment history,  and otherrecords of the employee' s qualifications for\nthe position bear on the employee' s public duties,  the Attorney General has determined that such\nrecords are not exempt from disclosure under the plain language of section 7( 1)( c)  of FOIA.  See\n\n111.  Att'y Gen.  Pub.  Acc.  Op. No.  14- 015,  issued November 25,  2014, at 8.  Accordingly,  this\noffice concludes that the District improperly withheld the employee' s job application,  resume, \nemployment history information,  and other records concerning his qualifications for employment\nand promotion under section 7( 1)( c)  of FOIA. \n\nemployee' s driver' s license under section 7( 1)( c)  of FOIA.  As described in\n\nIn addition to job application information,  the District also withheld a copy of the\nFOIA\n\n\fMr. Alyx J.  Parker\n\nApril 13,  2018\n\nPage 5\n\nrequest,  the employee is the operator of a bus for the District.  Because the employee is\nresponsible for operating a vehicle as part of his public duties for the District,  information\nconcerning whether the employee possessed a non -expired driver' s license and the class of\nlicense bears on his public duties and therefore is not exempt under section 7( 1)( c).  However, \n\nthe employee' s birth date is exempt\n\nfrom disclosure pursuant\n\nto section 7( 1)( c),'  and \" private\n\ninformation\"  listed in the license,  such as the employee' s license number and home may be\nredacted under section 7( 1)( b)  of FOIA. \n\nThe District also withheld information relating to the employee' s attendance at\nwork.  The Public Access Bureau has consistently determined that records that detail a public\nemployee's attendance or absences from work are a matter of substantial public interest and\ndirectly relate to the employee' s public duties.  See,  e.g., III. Att'y Gen. PAC Req.  Rev. Ltr. \n46310,  issued October 23,  2017,  at 2;  Ill. Att'y Gen. PAC Req.  Rev.  Ltr.  19343,  issued October\n30,  2012,  at 3- 4.  Because the presence or absence of the employee has a direct impact on the\noperations of the District' s transportation services and because information that bears on the\n\npublic duties, of public employees is not considered personal\nthat the District improperly withheld attendance information under section 7( 1)( c)  of FOIA. \n\ninformation,  this office concludes\n\nIn connection with the employee' s attendance,  the District also withheld\n\ninformation concerning the employee' s accrued time off under 7( 1)( c). \noffice,  the District cited the holding in State Journal -Register,  2013 IL App ( 4th)  120881, ¶ 41; \n994 N. E.2d 705,  716 ( 2013): \n\nIn its response to this\n\nIn this case,  the information sought by the Journal includes\n\ndocuments reflecting the coaches'  compensation for accrued\nvacation and sick time,  employee status,  and other related\n\ndocuments.  The Journal interprets [ Stern v.  Wheaton- Warrenville\nCommunity Unit School District 200,  233 111.  2d 396 ( 2009)]  too\nbroadly, inferring any document within a personnel file can be\nsubject to disclosure as bearing on the \" public duties\"  of the\nemployees.  A closer reading of Stern shows the case was limited\nto the disclosure of employment contracts, as those contracts set\n\nforth the duties of public employees and the compensation paid\n\nfrom public funds.  We find the present case more analogous to\n\nCopley Press,  Inc.  v.  Board of Educ. for Peoria Sch.  Dist.  No. \n150,  359 Ill. App.  3d 321 ( 3d Dist.  2005)].  We fail to see how the\ncoaches' election for the disbursement of accrued vacation, sick\n\ndate of birth would constitute an unwarranted invasion of personal privacy. \n009,  issued November 7,  2016,  at 9. \n\nThe Attorney General has issued a binding opinion concluding that disclosure of an individual' s\n111.  Att'y Gen.  Pub.  Acc.  Op.  No.  16- \n\n\fMr.  Alyx J.  Parker\n\nApril 13,  2018\n\nPage 6\n\nleave,  and related documents have any bearing on their alleged\nmisdeeds or public duties.  Instead,  we conclude this information is\n\nof a highly personal nature,  contained appropriately in a personnel\nfile,  and exempt from disclosure. \n\nIn Copley,  cited by the State Journal -Register opinion,  the court held that the\n\nfile.\"  Copley,  359 I11.  App. \n\nrequested performance evaluations and letter explaining the reasons for a superintendents\ndismissal were the types of documents expected to be found in a personnel file and thus per se\nexempt under the then -existing exemption for records in a \" personnel\n3d at 324- 25 ( interpreting 5 ILCS 140/ 7( 1)( b)( ii) ( West 2002)).  As discussed above, FOIA was\namended in 2010 to strike the \" personnel file\"  subsection of the personal privacy exemption.  See\nPublic Act 96- 542,  effective January 1,  2010.  At the time of State Journal -Register opinion,  the\nplacement of records in a personnel\nexempt from disclosure under section 7( 1)( c).  Further, section 2. 5 of FOIA ( 5 ILCS 140/ 2. 5\nWest 2014))  provides that \"[ a] ll records relating to the obligation,  receipt,  and use of public\nfunds of the State,  units of local government,  and school districts are public records subject to\ninspection and copying by the public.\"  Accordingly,  this office has concluded that State\nJournal -Register is not controlling on the question of whether an employee' s accrued time off is\nsubject to disclosure under FOIA.  111.  Atty Gen.  PAC Req.  Rev.  Ltr. 47124,  issued May 30, \n2017,  at 4- 5.  Because a public employee' s accrued time off is paid time for when the employee\nis not present at work and because it is part of an employee' s total compensation package\nprovided by the public body,  it relates to the use of public funds,  and disclosure of such public\ncompensation is in the public interest: \n\nto a determination of whether they were\n\nfile was irrelevant\n\nThere is * * * \n\na significant legitimate public interest in\n\ndisclosure of the amount of compensation paid to public\nemployees for the performance of public duties. * * *  As\n\ngovernment employees,  paid with public funds,  these employees\n\nhave no reasonable expectation of privacy in the amount of\ncompensation they receive.  And even if they do have an\nexpectation of privacy in the amount of their compensation,  it does\nnot outweigh the public' s legitimate interest in knowing how public\nfunds are expended. \nissued December 21,  2016,  at 7. \n\nIll.  Atty Gen.  Pub.  Acc.  Op.  No.  16- 012, \n\nAccordingly, the District has not sustained its burden of demonstrating by clear and convincing\nevidence that the disclosure of the employee' s accrued time off would constitute a \" clearly\nunwarranted invasion of personal privacy\"  as required by section 7( 1)( c)  of FOIA.  Likewise, \npayroll and wage information is unquestionably related to the use of public funds and is not\nexempt under section 7( 1)( c)  of FOIA. \n\n\fMr. Alyx J.  Parker\n\nApril 13,  2018\n\nPage 7\n\nIn contrast,  the Public Access Bureau has previously determined that the names\nof emergency contacts are personal information that may be redacted under section 7( 1)( c).  See\nI11.  Att'y Gen. PAC Req.  Rev.  Ltr. 47124,  issued May 30,  2017,  at 3.  Thus, the District may\nredact\ninformation.  However,  the District has not sustained\nits burden of demonstrating by clear and convincing evidence that the employee' s place of birth\nis exempt from disclosure under section 7( 1)( c)  of FOIA. \n\nthe employee' s emergency contact\n\nSections 7( 1)( t)  and 7. 5( q)  of FOIA\n\nIn its response to this office, the District stated that it had withheld performance\n\nevaluations and training records contained in the employee' s personnel\nof FOIA ( 5 ILCS 140/ 7( 1)(\n6,  2015;  99- 346,  effective January 1,  2016). \n\nf) (West 2014),  as amended by Public Acts 99- 298,  effective August\n\nfile under section 7( 1)( f) \n\nBefore addressing the training records, I this office notes that performance\n\nevaluations are exempt from disclosure under section 7. 5( q)  of FOIA ( 5 ILCS 140/ 7. 5( q) ( West\n2014),  as amended by Public Act 99- 298,  effective August 6,  2015)  and section 11 of the\nPersonnel Record Review Act ( PRRA) ( 820 ILCS 40/ 11 ( West 2014)).  Section 7. 5( q)  of FOIA\nexempts from disclosure \"[\nRecords Review Act.\"  Section 11 of the PRRA provides: \"\ndiminish a right of access to records already otherwise provided by law, provided that disclosure\nof performance evaluations under the Freedom of Information Act shall be prohibited.\" \nEmphasis added.)  Because section 11 of the PRRA prohibits the disclosure of performance\nevaluations,  the District did not improperly withhold those records pursuant\nFOIA. \n\ni] nformation prohibited from being disclosed by the Personnel\n\nThis Act shall not be construed to\n\nto section 7. 5( q)  of\n\nWith respect to the training records,  section 7( 1)( f) of FOIA exempts\n\np] reliminary drafts, notes,  recommendations,  memoranda and other records in which opinions\n\nf) exemption applies to \" inter-  and intra -agency\n\nare expressed,  or policies or actions are formulated,  except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.\"  The section 7( 1)(\npredecisional and deliberative material\"  and is \" intended to protect\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\"  Harwood v.  McDonough,  344 Ill.  App.  3d 242,  248 ( 1st Dist.  2003);  see also Kalven v. \nCity of Chicago,  2014 IL App ( 1st)  121846, ¶ 24,  7 N.E. 3d 741,  748 ( 2014) (\" Only those portions\nof a predecisional document\nwithheld.\" ( quoting Public Citizen,  Inc.  v.  Office of Management &  Budget,  598 F. 3d 865,  876\nD. C.  Cir.  2010))).  Section 7( 1)( f) does not exempt\nIll. Att' y Gen.  Pub.  Acc.  Op.  No.  13- 015,  issued September 24,  2013,  at 7. \n\nthe give and take of the deliberative process may be\n\nfrom disclosure purely factual material.  See\n\nthe communications process\n\nthat reflect\n\n\fMr.  Alyx J.  Parker\n\nApril 13,  2018\n\nPage 8\n\nThe District stated that the training records are \" considered preliminary,  pre - \n\nis conclusory.  Further,  this office reviewed the withheld training records\n\ni2 The District' s explanation of how the training records constitute pre -decisional\n\ndecisional, and/ or deliberative records in which opinions are expressed, or policies or actions are\nformulated[]\nor deliberative material\nwhich consist of a training schedule and training outline that contain dates,  times,  instructor\nnames,  and routes.  This information is entirely factual and does not contain any opinions or\nrecommendations of the training instructors.  Accordingly,  this office concludes that the District\nhas not sustained its burden of demonstrating by clear and convincing evidence that the withheld\ntraining records are exempt under section 7( 1)(\n\nf) of FOIA. \n\nThe District also stated that it had withheld a variety of documents that were not\nexempt under an exemption in FOIA.  Specifically, the District stated it withheld compliments\nfor the employee,  letters designating the employee as an \" Outstanding Operator\"  by the District, \nan employment contract,  a receipt for the employee handbook,  and change fund audit forms. \nBecause the District has not provided\nDistrict acknowledged that no exemption in FOIA permitted it to withhold those records,  this\noffice concludes that the District improperly withheld those records as well. \n\nwith copies of those records and because the\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the District disclose additional information contained in the employee' s personnel file, \nsubject to the redaction of social security numbers,  driver' s license numbers,  dates of birth, \nnames of parents,  home addresses,  personal telephone numbers,  emergency contact information, \nand performance evaluations.  The Public Access Counselor has determined that resolution of\nthis matter does not require the issuance of a binding opinion.  Please contact me at ( 217)  782- \n9054,  mhartman@atg. state. il.us,  or the Springfield address at the bottom of the first page if you\nhave questions.  This letter serves to close this file. , \n\nVery truly yours, \n\nMAIFT HA MAN\nAss start Attorney General\nPublic Access Bureau\n\n40605 71b 71c proper improper 71f improper 75q proper reg auth\n\n2Letter from Alyx J.  Parker,  Ansel Law,  to Matt Hartman, [ Assistant]  Attorney General,  Public\n\nAccess Bureau ( March 18,  2016),  at 3. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A transit district's bus driver personnel file","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-40605/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 13, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Alyx J. Parker\n\nMeyer Capel\n\n306 West Church Street\n\n[street address redacted for site publication -- see original PDF]\naparker@meyercapel. com\n\nRE: FOIA Request for Review — 2016 PAC 40605\n\nDear\n\nand Mr. Parker: \n\nThis determination is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Champaign -Urbana Mass Transit District (District) \nimproperly withheld certain portions of the records responsive to\n1, 2016, FOIA request. \n\nFebruary\n\nOn that date, \n\nsubmitted a FOIA request to the District seeking, \n\namong other things, the personnel file of the driver operating bus 1194 at approximately 1: 37 pm\non February 1, 2016. On February 12, 2016, the District denied\nto section 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(e) (West 2014), as amended\npersonnel\nby Public Acts 99- 298, effective August 6, 2015; 99- 346, effective January 1, 2016). On March\nRequest\n6, 2016, this office received\nFOIA request. \n\nfor Review contesting the denial of his\n\nrequest for the\n\nfile pursuant\n\nOn March 9, 2016, this office sent the District a copy of the Request for Review, \n\nand requested copies of the redacted and un -redacted responsive records, as well as a detailed\n\nexplanation of the factual and legal bases for the asserted exemption. On March 18, 2016, the\n\nDistrict furnished this office with the requested records and a written answer. On March 23, this\n\noffice forwarded a copy of the District's answer to\n\nhe replied on April\n\n1, 2016. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2014); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department ofPublic Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). \n\nSection 7(1)(b) of FOIA\n\nAlthough not cited in the District's response to\n\nFOIA request or to\n\nthis office, section 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2014)) exempts from disclosure\n\np] rivate information, unless disclosure is required by another provision of this Act, a State or\nfederal law or a court order.\" Section 2(c- 5) of FOIA (5 ILCS 140/ 2(c- 5) (West 2014)) defines\n\nprivate information\" as: \n\nU] nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\n\nidentifiers, personal financial information, passwords or other\n\naccess codes, medical\n\nrecords, home or personal\n\ntelephone\n\nnumbers, and personal email addresses. Private information also\n\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nThe Attorney General has also held that a person's signature is a unique identifier that may be\nredacted as private information. See, e.g., I11. Att' y Gen. Pub. Acc. Op. No. 14- 015, issued\nNovember 25, 2014, at 11. The personnel records withheld by the District contain social security\nnumbers, driver's license numbers, home addresses, personal\ntelephone numbers, and signatures. \nBecause all of those items constitute \" private information\" as defined by FOIA, the District did\nnot improperly withhold that information from the responsive records pursuant to section 7(1)(b) \n\nSection 7(1)(c) of FOIA\n\nThe District asserted that the records contained in the employee's personnel file\n\nare exempt in their entireties pursuant to section 7(1)(c) of FOIA, which exempts from\n\ndisclosure: \n\nPersonal\n\ninformation contained within public records, the\n\ndisclosure of which would constitute a clearly unwarranted\ninvasion ofpersonal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information. \nUnwarranted invasion of personal privacy\" means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the\npublic duties ofpublic employees and officials shall not be\nconsidered an invasion ofpersonal privacy. (Emphasis added.) \n\nA public body's contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis. Chicago\nJourneymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 (1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). Illinois courts consider the following\nfactors in determining whether disclosure of information would constitute an unwarranted\nthe plaintiffs interest in disclosure, (2) the public interest in\ninvasion of personal privacy: \"(disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative\nmeans of obtaining the requested information.\" National Ass' n of Criminal Defense Lawyers v. \nChicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010). \n\n1) \n\nIn its response to this office, the District relied upon an opinion letter issued by\n\nthe Illinois Attorney General, Ill. Att' y Gen. Op. No. S- 1484, issued April 14, 1980, and two\nIllinois Appellate Court opinions, State Journal -Register v. University of Illinois Springfield, \n2013 IL App (4th) 120881, 994 N.E. 2d 705 (2013) and Copley Press, Inc. v. Board of Education\nfor Peoria School District No. 150, 35 Ill. App. 3d 321 (2005), for its assertion that records\ncontained within a personnel file are per se exempt as personal information under section 7(1)(c) \nof FOIA. However, the 1980 opinion and the opinion in Copley Press predated the significant\nrevision of FOIA by the General Assembly in Public Act 96- 542, effective January 1, 2010, \n\nand added the current version of the personal privacy exemption in section 7(1)(c) of FOIA. \nBefore January 1, 2010, the personal privacy exemption was found in section 7(1)(b) of FOIA\nsee 5 ILCS 140/ 7(1)(b) (West 2008)) and exempted from disclosure: \n\nb) Information that, if disclosed, would constitute a clearly\nunwarranted invasion of personal privacy, unless the disclosure is\nconsented to in writing by the individual subjects of the\ninformation. The disclosure of information that bears on the\npublic duties ofpublic employees and;officials shall not be\nconsidered an invasion ofpersonal privacy. Information\nexempted under this subsection (b) shall\n\ninclude but is not limited\n\nto: \n\nii) personnelfiles and personal information maintained\n\nwith respect to employees, appointees or elected officials of\n\nany public body or applicants for those positions[.] \nEmphasis added) \n\nBy eliminating the previous version of, section 7(1)(b) and adding the current\n\nversion of section 7(1)(c), the General Assembly \" replaced the per se exemptions with a\nbalancing test requiring a public body to balance the privacy rights of an employee and the\ninterests of the public in obtaining information concerning the employee.\" Ill. Att'y Gen. Pub. \nAcc. Op. No. 14- 015, issued November 25, 2014, at 5. As part of that balancing, the General\nAssembly specifically stated that information that bears on the public duties of public employees\nis not considered an invasion of personal privacy. The Attorney General has concluded that\nthere is a compelling public interest\nin disclosure of a public employee's credentials to enable\nthe public to assess the employee's qualifications to perform his or her public duties.\" Ill. Att' y\nGen. Pub. Acc. Op. No. 14- 015, issued November 25, 2014, at 6. Because employment\napplications, resumes, employment history, and otherrecords of the employee's qualifications for\nthe position bear on the employee's public duties, the Attorney General has determined that such\nrecords are not exempt from disclosure under the plain language of section 7(1)(c) of FOIA. See\n\n111. Att'y Gen. Pub. Acc. Op. No. 14- 015, issued November 25, 2014, at 8. Accordingly, this\noffice concludes that the District improperly withheld the employee's job application, resume, \nemployment history information, and other records concerning his qualifications for employment\n\nrequest, the employee is the operator of a bus for the District. Because the employee is\nresponsible for operating a vehicle as part of his public duties for the District, information\nconcerning whether the employee possessed a non -expired driver's license and the class of\nlicense bears on his public duties and therefore is not exempt under section 7(1)(c). However, \n\nthe employee's birth date is exempt\n\nfrom disclosure pursuant\n\nto section 7(1)(c),' and \" private\n\ninformation\" listed in the license, such as the employee's license number and home may be\nredacted under section 7(1)(b) of FOIA. \n\nThe District also withheld information relating to the employee's attendance at\nwork. The Public Access Bureau has consistently determined that records that detail a public\nemployee's attendance or absences from work are a matter of substantial public interest and\ndirectly relate to the employee's public duties. See, e.g., III. Att'y Gen. PAC Req. Rev. Ltr. \n46310, issued October 23, 2017, at 2; Ill. Att'y Gen. PAC Req. Rev. Ltr. 19343, issued October\n30, 2012, at 3- 4. Because the presence or absence of the employee has a direct impact on the\noperations of the District's transportation services and because information that bears on the\n\npublic duties, of public employees is not considered personal\nthat the District improperly withheld attendance information under section 7(1)(c) of FOIA. \n\ninformation, this office concludes\n\nIn connection with the employee's attendance, the District also withheld\n\ninformation concerning the employee's accrued time off under 7(1)(c). \noffice, the District cited the holding in State Journal -Register, 2013 IL App (4th) 120881, ¶ 41; \n994 N. E.2d 705, 716 (2013): \n\nIn its response to this\n\nIn this case, the information sought by the Journal includes\n\ndocuments reflecting the coaches' compensation for accrued\nvacation and sick time, employee status, and other related\n\ndocuments. The Journal interprets [ Stern v. Wheaton- Warrenville\nCommunity Unit School District 200, 233 111. 2d 396 (2009)] too\nbroadly, inferring any document within a personnel file can be\nsubject to disclosure as bearing on the \" public duties\" of the\nemployees. A closer reading of Stern shows the case was limited\nto the disclosure of employment contracts, as those contracts set\n\nforth the duties of public employees and the compensation paid\n\nfrom public funds. We find the present case more analogous to\n\nCopley Press, Inc. v. Board of Educ. for Peoria Sch. Dist. No. \n150, 359 Ill. App. 3d 321 (3d Dist. 2005)]. We fail to see how the\ncoaches' election for the disbursement of accrued vacation, sick\n\ndate of birth would constitute an unwarranted invasion of personal privacy. \n009, issued November 7, 2016, at 9. \n\nThe Attorney General has issued a binding opinion concluding that disclosure of an individual's\n\nleave, and related documents have any bearing on their alleged\nmisdeeds or public duties. Instead, we conclude this information is\n\nof a highly personal nature, contained appropriately in a personnel\nfile, and exempt from disclosure. \n\nIn Copley, cited by the State Journal -Register opinion, the court held that the\n\nfile.\" Copley, 359 I11. App. \n\nrequested performance evaluations and letter explaining the reasons for a superintendents\ndismissal were the types of documents expected to be found in a personnel file and thus per se\nexempt under the then -existing exemption for records in a \" personnel\n3d at 324- 25 (interpreting 5 ILCS 140/ 7(1)(b)(ii) (West 2002)). As discussed above, FOIA was\namended in 2010 to strike the \" personnel file\" subsection of the personal privacy exemption. See\nPublic Act 96- 542, effective January 1, 2010. At the time of State Journal -Register opinion, the\nplacement of records in a personnel\nexempt from disclosure under section 7(1)(c). Further, section 2. 5 of FOIA (5 ILCS 140/ 2. 5\nWest 2014)) provides that \"[ a] ll records relating to the obligation, receipt, and use of public\nfunds of the State, units of local government, and school districts are public records subject to\ninspection and copying by the public.\" Accordingly, this office has concluded that State\nJournal -Register is not controlling on the question of whether an employee's accrued time off is\nsubject to disclosure under FOIA. 111. Atty Gen. PAC Req. Rev. Ltr. 47124, issued May 30, \n2017, at 4- 5. Because a public employee's accrued time off is paid time for when the employee\nis not present at work and because it is part of an employee's total compensation package\nprovided by the public body, it relates to the use of public funds, and disclosure of such public\ncompensation is in the public interest: \n\nto a determination of whether they were\n\nfile was irrelevant\n\nThere is * * * \n\na significant legitimate public interest in\n\ndisclosure of the amount of compensation paid to public\nemployees for the performance of public duties. * * * As\n\ngovernment employees, paid with public funds, these employees\n\nhave no reasonable expectation of privacy in the amount of\ncompensation they receive. And even if they do have an\nexpectation of privacy in the amount of their compensation, it does\nnot outweigh the public's legitimate interest in knowing how public\nfunds are expended. \nissued December 21, 2016, at 7. \n\nIll. Atty Gen. Pub. Acc. Op. No. 16- 012, \n\nAccordingly, the District has not sustained its burden of demonstrating by clear and convincing\nevidence that the disclosure of the employee's accrued time off would constitute a \" clearly\nunwarranted invasion of personal privacy\" as required by section 7(1)(c) of FOIA. Likewise, \npayroll and wage information is unquestionably related to the use of public funds and is not\n\nIn contrast, the Public Access Bureau has previously determined that the names\nof emergency contacts are personal information that may be redacted under section 7(1)(c). See\nI11. Att'y Gen. PAC Req. Rev. Ltr. 47124, issued May 30, 2017, at 3. Thus, the District may\nredact\ninformation. However, the District has not sustained\nits burden of demonstrating by clear and convincing evidence that the employee's place of birth\nis exempt from disclosure under section 7(1)(c) of FOIA. \n\nthe employee's emergency contact\n\nSections 7(1)(t) and 7. 5(q) of FOIA\n\nIn its response to this office, the District stated that it had withheld performance\n\nevaluations and training records contained in the employee's personnel\nof FOIA (5 ILCS 140/ 7(1)(6, 2015; 99- 346, effective January 1, 2016). \n\nf) (West 2014), as amended by Public Acts 99- 298, effective August\n\nfile under section 7(1)(f) \n\nBefore addressing the training records, I this office notes that performance\n\nevaluations are exempt from disclosure under section 7. 5(q) of FOIA (5 ILCS 140/ 7. 5(q) (West\n2014), as amended by Public Act 99- 298, effective August 6, 2015) and section 11 of the\nPersonnel Record Review Act (PRRA) (820 ILCS 40/ 11 (West 2014)). Section 7. 5(q) of FOIA\nexempts from disclosure \"[\nRecords Review Act.\" Section 11 of the PRRA provides: \"\ndiminish a right of access to records already otherwise provided by law, provided that disclosure\nof performance evaluations under the Freedom of Information Act shall be prohibited.\" \nEmphasis added.) Because section 11 of the PRRA prohibits the disclosure of performance\nevaluations, the District did not improperly withhold those records pursuant\nFOIA. \n\ni] nformation prohibited from being disclosed by the Personnel\n\nThis Act shall not be construed to\n\nto section 7. 5(q) of\n\nWith respect to the training records, section 7(1)(f) of FOIA exempts\n\np] reliminary drafts, notes, recommendations, memoranda and other records in which opinions\n\nf) exemption applies to \" inter- and intra -agency\n\nare expressed, or policies or actions are formulated, except that a specific record or relevant\nportion of a record shall not be exempt when the record is publicly cited and identified by the\nhead of the public body.\" The section 7(1)(predecisional and deliberative material\" and is \" intended to protect\nand encourage frank and open discussion among agency employees before a final decision is\nmade.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 248 (1st Dist. 2003); see also Kalven v. \nCity of Chicago, 2014 IL App (1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 (2014) (\" Only those portions\nof a predecisional document\nwithheld.\" (quoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876\nD. C. Cir. 2010))). Section 7(1)(f) does not exempt\n\nThe District stated that the training records are \" considered preliminary, pre - \n\nis conclusory. Further, this office reviewed the withheld training records\n\ni2 The District's explanation of how the training records constitute pre -decisional\n\ndecisional, and/ or deliberative records in which opinions are expressed, or policies or actions are\nformulated[]\nor deliberative material\nwhich consist of a training schedule and training outline that contain dates, times, instructor\nnames, and routes. This information is entirely factual and does not contain any opinions or\nrecommendations of the training instructors. Accordingly, this office concludes that the District\nhas not sustained its burden of demonstrating by clear and convincing evidence that the withheld\ntraining records are exempt under section 7(1)(f) of FOIA. \n\nThe District also stated that it had withheld a variety of documents that were not\nexempt under an exemption in FOIA. Specifically, the District stated it withheld compliments\nfor the employee, letters designating the employee as an \" Outstanding Operator\" by the District, \nan employment contract, a receipt for the employee handbook, and change fund audit forms. \nBecause the District has not provided\nDistrict acknowledged that no exemption in FOIA permitted it to withhold those records, this\noffice concludes that the District improperly withheld those records as well. \n\nwith copies of those records and because the\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the District disclose additional information contained in the employee's personnel file, \nsubject to the redaction of social security numbers, driver's license numbers, dates of birth, \nnames of parents, home addresses, personal telephone numbers, emergency contact information, \nand performance evaluations. The Public Access Counselor has determined that resolution of\nthis matter does not require the issuance of a binding opinion. Please contact me at (217) 782- \n9054, mhartman@atg. state. il.us, or the Springfield address at the bottom of the first page if you\nhave questions. This letter serves to close this file., \n\nVery truly yours, \n\nMAIFT HA MAN\nAss start Attorney General\nPublic Access Bureau\n\n40605 71b 71c proper improper 71f improper 75q proper reg auth\n\n2 Letter from Alyx J. Parker, Ansel Law, to Matt Hartman, [ Assistant] Attorney General, Public\n\nAccess Bureau (March 18, 2016), at 3."}
{"id":879,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-08-28","case_number":null,"request_numbers":["41654"],"title":"Lake County Sheriff's Office properly treated colleague FOIA requests as same-person repeated requests","filename":"41654, issued August 28, 2019.pdf","rel_path":null,"word_count":782,"summary":"The requester challenged the Lake County Sheriff's Office's denial of a FOIA request as an 'unduly burdensome' repeated request, arguing that he and his colleague were separate 'persons' under the Act. The PAC determined that because the requester and his colleague operate as part of the same organization, the Sheriff's Office properly treated them as the same person under section 3(g).","plain_summary":"Mr. John Kraft argued that he should not be considered the same person as his colleague when submitting FOIA requests, which would have prevented the Sheriff's Office from denying his request as a 'repeated' one. The Attorney General's office disagreed, finding that because both men work for the same organization, they count as the same 'person' under the law. Consequently, the Sheriff's Office was allowed to deny the request as a repeated, unduly burdensome submission.","holding":"The Lake County Sheriff's Office did not violate FOIA by treating the requester and his colleague as the same 'person' for the purposes of denying a repeated request.","legal_question":"Whether two individuals associated with the same organization constitute the same 'person' for the purposes of determining if a FOIA request is a 'repeated request' under 5 ILCS 140/3(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Lake County Sheriff's Office","requesting_party":"Mr. John Kraft","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"repeated request","subject_description":"The requester challenged the denial of a FOIA request on the grounds that it was a repeated request from the same entity.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_b/Persons-acting-as-a-group/41654%2C%20issued%20August%2028%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeated request","unduly burdensome","FOIA definition of person","Edgar County Watchdogs"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nAugust 28,  2019\n\nVia electronic mail\n\nMr. John Kraft\n\n[street address redacted for site publication -- see original PDF]\njohn@illinoisleaks.com\n\nVia electronic mail\n\nMs.  Christy Berkquist\nFOIA Officer\n\nLake County Sheriffs Office\n25 South Martin Luther King Jr.  Avenue\nWaukegan,  Illinois 60085\n\nsherifffoia@lakecountyil. gov\n\nRE:  FOIA Request\n\nfor Review — 2016 PAC 41654\n\nDear Mr.  Kraft and Ms.  Berkquist: \n\nThis determination letter is issued pursuant to section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2018)). \n\nOn April 28,  2016,  Mr.  John Kraft submitted a Request for Review to the Public\n\nAccess Bureau alleging that the Lake County Sheriffs Office ( Sheriffs Office)  improperly\ndenied his February 26,  2016,  FOIA request as an unduly burdensome repeated request under\nsection 3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West 2016)).  Section 3( g)  provides: \" Repeated requests\nfrom the same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\"  Mr. Kraft claimed that for purposes of this provision, he is a different \" person\"  from\n\nhis Edgar County Watchdogs/ Illinois Leaks colleague,  Mr.  Kirk Allen. \n\nSection 2( b)  of FOIA ( 5 ILCS 140/ 2( b) ( West 2016))  defines \" person\"  as \" any\n\nindividual,  corporation,  partnership,  firm, organization or association,  acting individually or as a\ngroup.\"  Under this definition,  two individuals who belong to the same entity and submit FOIA\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr.  John Kraft\n\nMs.  Christy Berkquist\nAugust 28,  2019\n\nPage 2\n\nrequests in their capacities with the entity qualify as the same \" person\"  under the definition of\nthat term in FOIA.  I11.  Att'y Gen.  PAC Req.  Rev.  Ltr. 17798,  issued September 21,  2018,  at 3- 4\nhusband and wife who worked for same company and submitted FOIA requests in their\ncapacities as employees were the same \" person\"  and therefore could be treated as a recurrent\n\nrequester under section 3. 2 of FOIA ( 5 ILCS 120/ 3. 2 ( West 2011 Supp.))  based on the\ncumulative number of their requests). \n\nThe binding opinion Mr. Kraft cited which construed the definition of \"person\"  in\nFOIA— Ill. Att' y Gen.  Pub.  Acc. Op. No.  12- 001,  issued January 9,  2012— is inapposite.  In that\nmatter,  the Attorney General concluded that the village had not set forth facts sufficient\ndemonstrate that a husband and wife who each submitted FOIA requests under their own names\n\nto\n\nqualified as the same \" person\"  for purposes of the recurrent requester provisions in FOIA.  Ill. \n\nAtt' y Gen.  Pub.  Acc.  Op.  No.  12- 001,  at 6.  The Attorney General stated that \"[ n] othing in the\nstatute permits the Village to aggregate the separate requests of two individuals for purposes of\n\nsection 2( g)  simply because the individuals are married or live at the same address.\" \nGen.  Pub.  Acc.  Op.  No.  12- 001,  at 6.  Here,  in contrast,  Mr. Kraft' s request was sent from an e- \nmail address with an illinoisleaks. com domain name and it stated that Mr.  Kraft qualified as a\n\nIll.  Att' y\n\nmember of the news media and a not- for- profit organization.  The Edgar County\nWatchdogs/ Illinois Leaks website states that Edgar County Watchdogs \" is a 501( c)( 4) \nOrganization\"  devoted to fostering \" accountability, \nbodies.\" 1 Mr. Kraft and Mr. Allen clearly work in tandem on FOIA matters as part of the same\norganization.  Accordingly,  the Sheriffs Office' s treatment of Mr.  Kraft and Mr.  Allen as the\nsame \" person\"  for purposes of section 3( g)  of FOIA did not violate FOIA. \n\ntruth,  and transparency in our local governing\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion.  This file is closed.  Please contact me at ( 312)  814- \n8413 or at the Chicago address on the first page of this letter if you have questions. \n\nJOSHUA M.  JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n41654 f 3g rep req proper co\n\nhttps:// edgarcountywatchdogs.\n\nIllinois Leaks, \" Edgar County Watchdogs,\"  Contact Us, \nlast visited August 28,  2019). \n\ncom/ about- us (\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Sheriff's office denial of a repeated FOIA request","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-41654/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nAugust 28, 2019\n\nVia electronic mail\n\nMr. John Kraft\n\n[street address redacted for site publication -- see original PDF]\njohn@illinoisleaks.com\n\nVia electronic mail\n\nMs. Christy Berkquist\nFOIA Officer\n\nLake County Sheriffs Office\n25 South Martin Luther King Jr. Avenue\nWaukegan, Illinois 60085\n\nsherifffoia@lakecountyil. gov\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 41654\n\nDear Mr. Kraft and Ms. Berkquist: \n\nThis determination letter is issued pursuant to section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2018)). \n\nOn April 28, 2016, Mr. John Kraft submitted a Request for Review to the Public\n\nAccess Bureau alleging that the Lake County Sheriffs Office (Sheriffs Office) improperly\ndenied his February 26, 2016, FOIA request as an unduly burdensome repeated request under\nsection 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2016)). Section 3(g) provides: \" Repeated requests\nfrom the same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\" Mr. Kraft claimed that for purposes of this provision, he is a different \" person\" from\n\nhis Edgar County Watchdogs/ Illinois Leaks colleague, Mr. Kirk Allen. \n\nSection 2(b) of FOIA (5 ILCS 140/ 2(b) (West 2016)) defines \" person\" as \" any\n\nindividual, corporation, partnership, firm, organization or association, acting individually or as a\ngroup.\" Under this definition, two individuals who belong to the same entity and submit FOIA\n\nrequests in their capacities with the entity qualify as the same \" person\" under the definition of\nthat term in FOIA. I11. Att'y Gen. PAC Req. Rev. Ltr. 17798, issued September 21, 2018, at 3- 4\nhusband and wife who worked for same company and submitted FOIA requests in their\ncapacities as employees were the same \" person\" and therefore could be treated as a recurrent\n\nrequester under section 3. 2 of FOIA (5 ILCS 120/ 3. 2 (West 2011 Supp.)) based on the\ncumulative number of their requests). \n\nThe binding opinion Mr. Kraft cited which construed the definition of \"person\" in\nFOIA— Ill. Att' y Gen. Pub. Acc. Op. No. 12- 001, issued January 9, 2012— is inapposite. In that\nmatter, the Attorney General concluded that the village had not set forth facts sufficient\ndemonstrate that a husband and wife who each submitted FOIA requests under their own names\n\nto\n\nqualified as the same \" person\" for purposes of the recurrent requester provisions in FOIA. Ill. \n\nAtt' y Gen. Pub. Acc. Op. No. 12- 001, at 6. The Attorney General stated that \"[ n] othing in the\nstatute permits the Village to aggregate the separate requests of two individuals for purposes of\n\nsection 2(g) simply because the individuals are married or live at the same address.\" \nGen. Pub. Acc. Op. No. 12- 001, at 6. Here, in contrast, Mr. Kraft's request was sent from an e- \nmail address with an illinoisleaks. com domain name and it stated that Mr. Kraft qualified as a\n\nIll. Att' y\n\nmember of the news media and a not- for- profit organization. The Edgar County\nWatchdogs/ Illinois Leaks website states that Edgar County Watchdogs \" is a 501(c)(4) \nOrganization\" devoted to fostering \" accountability, \nbodies.\" 1 Mr. Kraft and Mr. Allen clearly work in tandem on FOIA matters as part of the same\norganization. Accordingly, the Sheriffs Office's treatment of Mr. Kraft and Mr. Allen as the\nsame \" person\" for purposes of section 3(g) of FOIA did not violate FOIA. \n\ntruth, and transparency in our local governing\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion. This file is closed. Please contact me at (312) 814- \n8413 or at the Chicago address on the first page of this letter if you have questions. \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n41654 f 3g rep req proper co\n\nhttps:// edgarcountywatchdogs.\n\nIllinois Leaks, \" Edgar County Watchdogs,\" Contact Us, \nlast visited August 28, 2019). \n\ncom/ about- us ("}
{"id":880,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-06-30","case_number":null,"request_numbers":["41667"],"title":"Community Consolidated School District 15 did not violate FOIA in withholding draft contract proposals","filename":"41667, issued June 30, 2016.pdf","rel_path":null,"word_count":2256,"summary":"The Chicago Tribune requested draft contract documents and salary schedules from Community Consolidated School District 15, which the District withheld. The PAC determined that the District properly withheld the draft proposals and preliminary contract language under FOIA's collective bargaining exemption.","plain_summary":"A reporter requested draft contract documents and salary information from a school district after the school board approved the general terms of a teachers' contract. The PAC concluded that draft proposals and language exchanged with the teachers' representatives were not exempt under section 7(1)(f), because the communications were with a third party, but were exempt under section 7(1)(p) as collective-negotiation records. A separate confidential memorandum to the Board was exempt under section 7(1)(f). The district therefore did not improperly withhold the requested records.","holding":"The District did not improperly withhold records because the confidential memorandum to the Board is exempt under section 7(1)(f) of FOIA, but the District failed to prove that the draft proposals and language exchanged with the union are exempt under section 7(1)(f).","legal_question":"Whether draft proposals and preliminary contract language exchanged during collective bargaining negotiations are exempt from disclosure under section 7(1)(p) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(p)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(p)"],"public_body":"Community Consolidated School District 15","requesting_party":"Ms. Diane Rado (Chicago Tribune)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"collective bargaining","subject_description":"The request sought draft contract language and salary schedules related to a collective bargaining agreement between a school district and a teachers' union.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_p/41667%2C%20issued%20June%2030%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["collective bargaining","school district","draft documents","FOIA exemption"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"rT\n\nAF( n:.1.77\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJune 30,  2016\n\nVia electronic mail\n\nMs.  Diane Rado\n\nEducation Reporter\nChicago Tribune\n\ndrado @chicagotribune. com\n\nVia electronic mail\n\nMs. Jessica Riddick\nHodges,  Loizzi, Eisenhammer,\nRodick &  Kohn LLP\n\n[street address redacted for site publication -- see original PDF]\njriddick @hlerk. com\n\nRE:   FOIA Request for Review— 2016 PAC 41667\n\nDear Ms.  Rado and Ms.  Riddick:\n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2014)).  For the reasons explained below, the\nPublic Access Bureau concludes that Community Consolidated School District 15 ( District)  did\nnot improperly withhold records responsive to Ms.  Diane Rado' s April 18,  2016,  FOIA request.\n\nOn that date,  Ms.  Rado,  on behalf of the Chicago Tribune,  submitted a FOIA\n\nrequest to the District seeking copies of the following documents relating to an agreement\nbetween the District and its teachers'  union:\n\nThe full contract,  or a draft of the full contract,  or any pages or\nparts of the contract,  including drafts.  This information should be\navailable,  given that the contract was approved.\n\n500 South Second Street, Springfield, Illinois 62706 • ( 217) 782- 1090 •  TTY: ( 217) 785- 2771 •  Fax:( 217) 782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 •  TTY: ( 312) 814- 3374 •  Fax:( 312) 814- 3806\n\n1001 East Main, Carbondale,\n\nIllinois 62901•(\n\n618) 529- 6400• TTY: ( 618) 529- 6403•\n\nFax:( 618) 529- 6416\n\n\fMs.  Diane Rado\nMs. Jessica Riddick\n\nJune 30,  2016\nPage 2\n\nThe salary schedule over the full length of the contract,  including\nall steps and lanes ( if that method is being used),  as well as\nadditional dollars or stipends for extracurricular duties.\n\nAny documents,  both print and electronic,  conveying whether the\nunion and school board will have to negotiate again during the\nlength of the contract,  such as in 3- year intervals.\n\nAny documents,  both print and electronic,  related to the contract,\nincluding abbreviated talking points or any information of any\nkind, that board members received and were able to review at a\npublic board meeting.\n\nAny documents,  both print and electronic,  related to why and how\nthe board and union chose to enter into a 10- year contract. hl\nEmphasis omitted.)\n\nOn April 25,  2016,  the District provided a written response granting in part and\ndenying in part Ms. Rado's request.  The District stated that a summary of the contract's major\nterms is available on the Board of Education' s ( Board) website and provided a link to that\nsummary.   The District also stated that it was still working with the Classroom Teachers Council\nto finalize the language of the written contract.  The District asserted that it was not required to\npublicly disclose drafts of detailed contract\nlanguage under FOIA \" because the legislature has\nrecognized that this could mislead the public and cause unnecessary labor disputes both in the\nimmediate and long- term.\" 2 ( Emphasis omitted.)  The District also asserted that that the\nremaining records responsive to Ms. Rado' s request are exempt from disclosure under sections\n7( 1)( f), 7( 1)( m),  and 7( 1)( p)  of FOIA ( 5 ILCS 140/ 7( 1)(\namended by Public Acts 99- 298,  effective August 6,  2015;  99- 346,  effective January 1,  2016).\n\nf), (1)( m), ( I)( p) ( West 2014),  as\n\nOn April 29,  2016,  Ms.  Rado submitted this Request\n\nfor Review to the Public\n\nAccess Bureau contesting the partial denial of her FOIA request by the District.   Ms.  Rado\nasserted that the District should provide copies of the draft contract documents and salary\nschedules following its vote to approve the contract.   On May 6,  2016,  the Public Access Bureau\nsent a copy of Ms. Rado' s Request for Review to the District asking that it provide copies of the\nwithheld records for our confidential review and requesting that it provide a detailed legal and\n\nFOIA request\nConsolidated School District 15( April 18, 2016).\n\nfrom Diane Rado, Education Reporter, Chicago Tribune, to Community\n\nDiane Rado, [ Education Reporter, Chicago Tribune] ( April 25, 2016).\n\n2Letter from Scott B.  Thompson, Ed. D.,  Superintendent of Schools, CCSD 15 FOIA Officer, to\n\n\fMs.  Diane Rado\n\nMs.  Jessica Riddick\n\nJune 30,  2016\n\nPage 3\n\nfactual basis for its assertion of sections 7( 1)(\nDistrict provided copies of the withheld records and a written response stating that the final\ncontract did not exist at the time of Ms. Rado' s request.  The District contended that a\n\nf), 7( 1)( m),  and 7( 1)( p).   On May 17,  2016,\n\nthe\n\nconfidential memorandum to the Board about the contract and preliminary drafts of the contract\nare exempt under section 7( 1)(\nf) of FOIA because \" these documents were predecisional and/ or\ndraft documents,  and none of these documents have been publicly cited and identified by the\nBoard President. i3 The District asserted that preliminary drafts of the written contract are also\nexempt under section 7( 1)( p)  of FOIA because the documents included the Board' s positions in\nnegotiations.   The District further asserted that the confidential memorandum is exempt under\nsection 7( 1)( m)  of FOIA as confidential communication containing legal advice from the Board' s\nattorney.   On May 19,  2016,  this office sent the District' s written response to Ms.  Rado;  she did\n\nnot reply.\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1. 2 ( West 2014);  see also Southern Illinoisan v.\nIllinois Department of Public Health,  218 Ill. 2d 390,  415 ( 2006).   A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1. 2 ( West 2014).\n\nSection 7( 1)(\n\nf) of FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7( 1)( 0 of FOIA exempts from disclosure \"[ p] reliminary drafts, notes,\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\"  \"[ A] s a\nf) exempts from disclosure predecisional materials used by a\nmatter of public policy,  section 7( 1)(\npublic body in its deliberative process.\"  Harwood v. McDonough,  344 III.  App.  3d 242,  248 ( 1st\nDist. 2003).   The exemption is \" intended to protect the communications process and encourage\n\nfrank and open discussion among agency employees before a final decision is made.\"  Harwood,\n344 Ill. App.  3d at 248.   However,  the exemption does not extend to communications between\npublic bodies and private third parties who are not consultants.  Department ofInterior v.\nKlamath Water Users Protective Ass' n,  532 U. S.  1,  13,  121 S.  Ct.  1060,  1069 ( 2001)\n\ncommunications with third parties that have independent interests and that stand to benefit from\n\nthe public body' s final decision cannot be characterized as intra- agency communications under\n\n3Letter from Jessica J. Riddick, Hodges, Loizzi,  Eisenhammer,  Rodick&  Kohn LLP, to Matt\n\nHartman, Assistant Attorney General,  Public Access Bureau( May 17, 2016), at 3.\n\n\fMs.  Diane Rado\n\nMs.  Jessica Riddick\n\nJune 30,  2016\n\nPage 4\n\nin the federal FOIA( 5 U. S. C. §  552( b)( 5) ( West 2000)); 4\n\nthe exemption for deliberative material\nLevy v.  United States Postal Service,  567 F.  Supp. 2d 162,  166 ( D. D. C.  1982) (\" Information\nconcerning an interactive process between an agency and an outside third party is not\ndeliberative in nature,  because such information is no longer secret and cannot advance the\npolicy objectives that Exemption 5 is intended to serve.\");\nLtr. 26456,  issued December 31,  2013,  at 3 ( general contractor' s draft proposals for a\nconstruction project do not constitute a city's pre- decisional deliberative material).\n\nsee also Ill. Att'y Gen.  PAC Req.  Rev.\n\nThe District' s response to this office asserted the following:\n\nIn the instant case,  the contract has not yet been finalized\n\nand remains in draft form;  therefore,  the draft contract proposals\n\nmay be characterized as preliminary and properly fall within the\nprovisions of 7( 1)(\ndrafted to provide analysis and input into the Board's decision\n\nf).  Similarly, the confidential memorandum was\n\nwhether to ratify the agreement.  This memorandum exemplifies\nthe deliberative process contemplated by Harwood v. McDonough,\nsupra. 5\n\nThis office has reviewed the responsive records,  which are draft proposals and\n\nlanguage exchanged between the District and the Classroom Teachers\nto the Board.  The\n\npreliminary contract\nCouncil as well as a confidential memorandum from the superintendent\nminutes of the Board' s April 13,  2016, meeting state that the Board voted to approve the contract\nas presented.\" 6 A video of the meeting posted on the District's website shows that the District' s\nsuperintendent presented a summary of the terms of the agreements that is consistent with the\nsummary of terms posted on the District's website.7 At the time of Ms. Rado's FOIA request,\nthe Board had approved the general terms of the contract,  but the draft of the final contract and\n\nproposed contract\n\nlanguage had not been finalized.   The Public Access Bureau has previously\n\n4Federal FOR Exemption 5 applies to \" inter- agency or intra- agency memorandums or letters\n\nwhich would not be available by law to a party other than an agency in litigation with the agency[.]\"\n\n5Letter from Jessica J.  Riddick, Hodges,  Loizzi,  Eisenhammer,  Rodick& Kohn LLP, to Matt\n\nHartman, Assistant Attorney General,  Public Access Bureau( May 17, 2016), at 3.\n\nBoard of Education of Community Consolidated School District 15,  Regular Meeting, April 13,\n\n2016,  Minutes 3.\n\n2016, available at\n\nBoard of Education of Community Consolidated School District 15,  Regular Meeting, April 13,\n\nhttp:// ccsd 15. granicus. com/ MediaPlayer. php? clip_ id= l3l& embed= l& auto_ start= 0& stamime= 0& stoptime= 7498&\nplayer_width= 640& player_height= 480,  last visited June 3, 2016.\n\n\fMs.  Diane Rado\n\nMs.  Jessica Riddick\n\nJune 30,  2016\n\nPage 5\n\nf) of\n\nconcluded that a draft teacher contract was exempt as a preliminary draft under section 7( 1)(\nFOIA where the school board had approved the contract,  but had not finalized the language of\nthe contract.   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 20502,  issued July 19,  2012.   Although the draft\nproposals and preliminary contract\nlanguage were generated in the process of developing the\nteachers'  contract,  those records do not constitute inter- agency pre- decisional and deliberative\nmaterial.   Rather,  those records were exchanged between the District and representatives of the\nClassroom Teachers Council,  a third party with a private interest\nBecause representatives of the Classroom Teachers Council are a third party,  the draft proposals\nand language exchanged between the District and the Classroom Teachers Council do not\nconstitute inter- agency or intra- agency pre- decisional deliberative material.   Accordingly,  we\nconclude that the District has not sustained its burden of demonstrating that the draft proposals\nand draft contract language are exempt from disclosure pursuant to section 7( 1)( f) of FOIA.\n\nin the teachers'  contract.\n\nConversely,  the confidential memorandum to the Board is an intra- agency\n\ncommunication that contains the superintendent' s analysis of the proposed contract as well as an\noverview of the recommendations of the District' s attorney concerning the proposed terms.   Such\nin nature,  and there is no indication that it has been cited or\na communication is pre- decisional\npublicly identified by the head of the public body.  Accordingly,  we conclude that the District\nhas sustained its burden of demonstrating that the confidential memorandum is exempt from\ndisclosure pursuant to section 7( 1)( f) of FOIA.   Because that determination is dispositive,  we\ndecline to address the District' s assertion that the memorandum is exempt\nsection 7( 1)( m)  of FOIA.\n\nfrom disclosure under\n\nSection 7( 1)( p)  of FOIA\n\nThe District also asserted that the draft proposals and preliminary contract\nlanguage are exempt from disclosure pursuant to section 7( 1)( p)  of FOIA,  which exempts\n\nr]ecords relating to collective negotiating matters between public bodies and their employees\nor representatives,  except that any final contract or agreement shall be subject to inspection and\ncopying.\"\n\nThe District' s response to this office asserted that the draft proposals and\n\npreliminary contract\nlanguage contain the Board' s positions on the items subject to negotiations\nwith the Classroom Teachers Council.  This office reviewed the draft proposals and preliminary\ndraft contract language,  which contain both the District's and the Classroom Teachers Council' s\npositions on items discussed during negotiations on the proposed contract.   Because the draft\nproposals and preliminary contract\nlanguage constitute the substance of the District' s ongoing\ncollective negotiations with the teachers'  representatives concerning a proposed contract,  those\nrecords are exempt\nAccordingly,  we conclude the District has sustained its burden of demonstrating that the draft\n\nfrom disclosure under the plain language of section 7( 1)( p)  of FOIA.\n\n\fMs.  Diane Rado\n\nMs.  Jessica Riddick\n\nJune 30,  2016\n\nPage 6\n\nproposals and preliminary contract language are exempt from disclosure pursuant to section\n7( 1)( p)  of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.   If you\nhave any questions, you may contact me at ( 217)  782- 9054 or the Springfield address listed on\nthe first page of this letter.\n\nVery truly yours,\n\nM TT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n41667 71f proper improper 71p proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Draft contract language and salary schedules from union negotiations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":"A reporter requested draft contract documents and salary information from a school district after the school board approved a teachers' contract. The Illinois Attorney General's Public Access Bureau concluded that the district did not improperly withhold records. The Bureau found that the draft proposals and language exchanged between the district and the teachers' union were not exempt under section 7(1)(f) of FOIA because they were not intra-agency communications. However, the Bureau found that a confidential memorandum from the superintendent to the school board was exempt under section 7(1)(f) as pre-decisional deliberative material. The Bureau did not address the district's other claimed exemptions for the draft language.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-41667/","full_text":"rT\n\nAF(n:.1.77\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJune 30, 2016\n\nVia electronic mail\n\nMs. Diane Rado\n\nEducation Reporter\nChicago Tribune\n\ndrado @chicagotribune. com\n\nVia electronic mail\n\nMs. Jessica Riddick\nHodges, Loizzi, Eisenhammer,\nRodick & Kohn LLP\n\n[street address redacted for site publication -- see original PDF]\njriddick @hlerk. com\n\nRE: FOIA Request for Review— 2016 PAC 41667\n\nDear Ms. Rado and Ms. Riddick:\n\nThis determination is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2014)). For the reasons explained below, the\nPublic Access Bureau concludes that Community Consolidated School District 15 (District) did\nnot improperly withhold records responsive to Ms. Diane Rado's April 18, 2016, FOIA request.\n\nOn that date, Ms. Rado, on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to the District seeking copies of the following documents relating to an agreement\nbetween the District and its teachers' union:\n\nThe full contract, or a draft of the full contract, or any pages or\nparts of the contract, including drafts. This information should be\navailable, given that the contract was approved.\n\nThe salary schedule over the full length of the contract, including\nall steps and lanes (if that method is being used), as well as\nadditional dollars or stipends for extracurricular duties.\n\nAny documents, both print and electronic, conveying whether the\nunion and school board will have to negotiate again during the\nlength of the contract, such as in 3- year intervals.\n\nAny documents, both print and electronic, related to the contract,\nincluding abbreviated talking points or any information of any\nkind, that board members received and were able to review at a\npublic board meeting.\n\nAny documents, both print and electronic, related to why and how\nthe board and union chose to enter into a 10- year contract. hl\nEmphasis omitted.)\n\nOn April 25, 2016, the District provided a written response granting in part and\ndenying in part Ms. Rado's request. The District stated that a summary of the contract's major\nterms is available on the Board of Education's (Board) website and provided a link to that\nsummary. The District also stated that it was still working with the Classroom Teachers Council\nto finalize the language of the written contract. The District asserted that it was not required to\npublicly disclose drafts of detailed contract\nlanguage under FOIA \" because the legislature has\nrecognized that this could mislead the public and cause unnecessary labor disputes both in the\nimmediate and long- term.\" 2 (Emphasis omitted.) The District also asserted that that the\nremaining records responsive to Ms. Rado's request are exempt from disclosure under sections\n7(1)(f), 7(1)(m), and 7(1)(p) of FOIA (5 ILCS 140/ 7(1)(amended by Public Acts 99- 298, effective August 6, 2015; 99- 346, effective January 1, 2016).\n\nf), (1)(m), (I)(p) (West 2014), as\n\nOn April 29, 2016, Ms. Rado submitted this Request\n\nfor Review to the Public\n\nAccess Bureau contesting the partial denial of her FOIA request by the District. Ms. Rado\nasserted that the District should provide copies of the draft contract documents and salary\nschedules following its vote to approve the contract. On May 6, 2016, the Public Access Bureau\nsent a copy of Ms. Rado's Request for Review to the District asking that it provide copies of the\nwithheld records for our confidential review and requesting that it provide a detailed legal and\n\nFOIA request\nConsolidated School District 15(April 18, 2016).\n\nfrom Diane Rado, Education Reporter, Chicago Tribune, to Community\n\nDiane Rado, [ Education Reporter, Chicago Tribune] (April 25, 2016).\n\n2 Letter from Scott B. Thompson, Ed. D., Superintendent of Schools, CCSD 15 FOIA Officer, to\n\nfactual basis for its assertion of sections 7(1)(District provided copies of the withheld records and a written response stating that the final\ncontract did not exist at the time of Ms. Rado's request. The District contended that a\n\nf), 7(1)(m), and 7(1)(p). On May 17, 2016,\n\nthe\n\nconfidential memorandum to the Board about the contract and preliminary drafts of the contract\nare exempt under section 7(1)(f) of FOIA because \" these documents were predecisional and/ or\ndraft documents, and none of these documents have been publicly cited and identified by the\nBoard President. i3 The District asserted that preliminary drafts of the written contract are also\nexempt under section 7(1)(p) of FOIA because the documents included the Board's positions in\nnegotiations. The District further asserted that the confidential memorandum is exempt under\nsection 7(1)(m) of FOIA as confidential communication containing legal advice from the Board's\nattorney. On May 19, 2016, this office sent the District's written response to Ms. Rado; she did\n\nnot reply.\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2014); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2014).\n\nSection 7(1)(f) of FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7(1)(0 of FOIA exempts from disclosure \"[ p] reliminary drafts, notes,\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\" \"[ A] s a\nf) exempts from disclosure predecisional materials used by a\nmatter of public policy, section 7(1)(public body in its deliberative process.\" Harwood v. McDonough, 344 III. App. 3d 242, 248 (1st\nDist. 2003). The exemption is \" intended to protect the communications process and encourage\n\nfrank and open discussion among agency employees before a final decision is made.\" Harwood,\n344 Ill. App. 3d at 248. However, the exemption does not extend to communications between\npublic bodies and private third parties who are not consultants. Department ofInterior v.\nKlamath Water Users Protective Ass' n, 532 U. S. 1, 13, 121 S. Ct. 1060, 1069 (2001)\n\ncommunications with third parties that have independent interests and that stand to benefit from\n\nthe public body's final decision cannot be characterized as intra- agency communications under\n\nin the federal FOIA(5 U. S. C. § 552(b)(5) (West 2000)); 4\n\nthe exemption for deliberative material\nLevy v. United States Postal Service, 567 F. Supp. 2d 162, 166 (D. D. C. 1982) (\" Information\nconcerning an interactive process between an agency and an outside third party is not\ndeliberative in nature, because such information is no longer secret and cannot advance the\npolicy objectives that Exemption 5 is intended to serve.\");\nLtr. 26456, issued December 31, 2013, at 3 (general contractor's draft proposals for a\nconstruction project do not constitute a city's pre- decisional deliberative material).\n\nsee also Ill. Att'y Gen. PAC Req. Rev.\n\nThe District's response to this office asserted the following:\n\nIn the instant case, the contract has not yet been finalized\n\nand remains in draft form; therefore, the draft contract proposals\n\nmay be characterized as preliminary and properly fall within the\nprovisions of 7(1)(drafted to provide analysis and input into the Board's decision\n\nf). Similarly, the confidential memorandum was\n\nwhether to ratify the agreement. This memorandum exemplifies\nthe deliberative process contemplated by Harwood v. McDonough,\nsupra. 5\n\nThis office has reviewed the responsive records, which are draft proposals and\n\nlanguage exchanged between the District and the Classroom Teachers\nto the Board. The\n\npreliminary contract\nCouncil as well as a confidential memorandum from the superintendent\nminutes of the Board's April 13, 2016, meeting state that the Board voted to approve the contract\nas presented.\" 6 A video of the meeting posted on the District's website shows that the District's\nsuperintendent presented a summary of the terms of the agreements that is consistent with the\nsummary of terms posted on the District's website.7 At the time of Ms. Rado's FOIA request,\nthe Board had approved the general terms of the contract, but the draft of the final contract and\n\nproposed contract\n\nlanguage had not been finalized. The Public Access Bureau has previously\n\n4 Federal FOR Exemption 5 applies to \" inter- agency or intra- agency memorandums or letters\n\nwhich would not be available by law to a party other than an agency in litigation with the agency[.]\"\n\n5 Letter from Jessica J. Riddick, Hodges, Loizzi, Eisenhammer, Rodick& Kohn LLP, to Matt\n\nHartman, Assistant Attorney General, Public Access Bureau(May 17, 2016), at 3.\n\nBoard of Education of Community Consolidated School District 15, Regular Meeting, April 13,\n\n2016, Minutes 3.\n\n2016, available at\n\nBoard of Education of Community Consolidated School District 15, Regular Meeting, April 13,\n\nhttp:// ccsd 15. granicus. com/ MediaPlayer. php? clip_ id= l3l& embed= l& auto_ start= 0& stamime= 0& stoptime= 7498&\n\nf) of\n\nconcluded that a draft teacher contract was exempt as a preliminary draft under section 7(1)(FOIA where the school board had approved the contract, but had not finalized the language of\nthe contract. Ill. Att'y Gen. PAC Req. Rev. Ltr. 20502, issued July 19, 2012. Although the draft\nproposals and preliminary contract\nlanguage were generated in the process of developing the\nteachers' contract, those records do not constitute inter- agency pre- decisional and deliberative\nmaterial. Rather, those records were exchanged between the District and representatives of the\nClassroom Teachers Council, a third party with a private interest\nBecause representatives of the Classroom Teachers Council are a third party, the draft proposals\nand language exchanged between the District and the Classroom Teachers Council do not\nconstitute inter- agency or intra- agency pre- decisional deliberative material. Accordingly, we\nconclude that the District has not sustained its burden of demonstrating that the draft proposals\nand draft contract language are exempt from disclosure pursuant to section 7(1)(f) of FOIA.\n\nin the teachers' contract.\n\nConversely, the confidential memorandum to the Board is an intra- agency\n\ncommunication that contains the superintendent's analysis of the proposed contract as well as an\noverview of the recommendations of the District's attorney concerning the proposed terms. Such\nin nature, and there is no indication that it has been cited or\na communication is pre- decisional\npublicly identified by the head of the public body. Accordingly, we conclude that the District\nhas sustained its burden of demonstrating that the confidential memorandum is exempt from\ndisclosure pursuant to section 7(1)(f) of FOIA. Because that determination is dispositive, we\ndecline to address the District's assertion that the memorandum is exempt\nsection 7(1)(m) of FOIA.\n\nfrom disclosure under\n\nSection 7(1)(p) of FOIA\n\nThe District also asserted that the draft proposals and preliminary contract\nlanguage are exempt from disclosure pursuant to section 7(1)(p) of FOIA, which exempts\n\nr]ecords relating to collective negotiating matters between public bodies and their employees\nor representatives, except that any final contract or agreement shall be subject to inspection and\ncopying.\"\n\nThe District's response to this office asserted that the draft proposals and\n\npreliminary contract\nlanguage contain the Board's positions on the items subject to negotiations\nwith the Classroom Teachers Council. This office reviewed the draft proposals and preliminary\ndraft contract language, which contain both the District's and the Classroom Teachers Council's\npositions on items discussed during negotiations on the proposed contract. Because the draft\nproposals and preliminary contract\nlanguage constitute the substance of the District's ongoing\ncollective negotiations with the teachers' representatives concerning a proposed contract, those\nrecords are exempt\nAccordingly, we conclude the District has sustained its burden of demonstrating that the draft\n\nproposals and preliminary contract language are exempt from disclosure pursuant to section\n7(1)(p) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, you may contact me at (217) 782- 9054 or the Springfield address listed on\nthe first page of this letter.\n\nVery truly yours,\n\nM TT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n41667 71f proper improper 71p proper sd"}
{"id":881,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-08-24","case_number":null,"request_numbers":["42018"],"title":"Illinois AG's Office conducted reasonable search, properly applied 7(1)(f) exemption","filename":"42018, issued August 24, 2016.pdf","rel_path":null,"word_count":2682,"summary":"The Energy & Environment Legal Institute and the Free Market Environmental Law Clinic requested correspondence between the Illinois Attorney General's Office and the New York Attorney General's Office. The PAC determined that the Attorney General's Office conducted a reasonable search and properly withheld records under the deliberative process exemption.","plain_summary":"Two legal groups, the Energy & Environment Legal Institute and the Free Market Environmental Law Clinic, jointly requested emails and correspondence between the Illinois and New York Attorney General offices. The Public Access Bureau (PAC) reviewed the request and concluded that the Illinois Attorney General's Office conducted a reasonable search for the records and did not improperly withhold records that it asserted were exempt under FOIA.","holding":"The Attorney General's Office conducted a reasonable search and did not improperly withhold records it asserted were exempt under FOIA.","legal_question":"Whether the Attorney General's Office conducted a reasonable search for responsive records and properly applied the deliberative process exemption under section 7(1)(f) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Office of the Illinois Attorney General","requesting_party":"Energy & Environment Legal Institute (E&E Legal) and the Free Market Environmental Law Clinic","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request sought correspondence between the Illinois and New York Attorney General offices regarding environmental litigation and policy.","ocr_status":"ok","ocr_quality":90.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Inter-agency-communications/42018%2C%20issued%20August%2024%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["deliberative process","reasonable search","FOIA exemption","attorney general"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nAugust 24,  2016\n\nVia electronic mail\n\nMr.  Matthew D.  Hardin\n\nAttorney - at -Law\n314 West Grace Street,  Suite 304\n\n[street address redacted for site publication -- see original PDF]\nMatthewDHardin@gmail.\n\ncom\n\nVia electronic mail\n\nMs.  Caitlin Q.  Knutte\nAssistant Attorney General and FOIA Officer\nIllinois Attorney General' s Office\n500 South 2nd Street\n\nSpringfield,  Illinois 62706\nfoiaofficer@atg. state. il.us\n\nRE:  FOIA Request for Review — 2016 PAC 42018\n\nDear Mr.  Hardin and Ms.  Knutte: \n\nThis determination is issued pursuant to section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2014)).  For the reasons discussed below,  the\n\nPublic Access Bureau concludes that the Office of the Illinois Attorney General ( Attorney\nGeneral' s Office)  conducted a reasonable search for records responsive to an April 11,  2016, \n\nFOIA request\n\njointly submitted by the Energy &  Environment Legal Institute ( E &  E Legal)  and\n\nthe Free Market Environmental Law Clinic (Law Clinic).  The Public Access Bureau further\nconcludes that the Attorney General' s Office did not improperly withhold records that it asserted\nare exempt\n\nfrom disclosure under FOIA. \n\nOn April\n\n11,  2016,  E &  E Legal and the Law Clinic submitted a FOIA request to\nthe Attorney General' s Office seeking various records including \" all correspondence between the\nIllinois Attorney General,  or the Office' s Environmental Division Office,  except\n\nsecretarial/ administrative and paralegal staff, and employees of the New York Attorney General' s\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Matthew D.  Hardin\n\nMs.  Caitlin Q.  Knutte\nAugust 24,  2016\n\nPage 2\n\nOffice,  dated from March 20,  2016 through March 30,  2016.\" 1 ( Emphasis in original.)  On May\n2,  2016,  the Attorney' s General' s Office denied that portion of the request pursuant to sections\nf) of FOIA ( 5 ILCS 140/ 7( 1)( d)( i), ( 1)( f) (West 2015 Supp.)).  On May 20, \n7( 1)( d)( i)  and 7( 1)(\n\n2016,  the Law Clinic submitted a Request for Review on behalf of itself and E &  E Legal\n\nin\n\nwhich it claims that the cited exemptions are inapplicable and questions whether the Attorney\nGeneral' s Office conducted an adequate search for responsive records. \n\nOn June 1,  2016,  the Public Access Bureau sent a copy of the Request\n\nfor Review\n\nto the Attorney General' s Office' s FOIA Officer and requested: (\nwere withheld under section 7( 1)( d)( i)  and 7( 1)(\n\nf); ( 2)  a detailed explanation of the factual and\n\n1)  copies of the records that\n\nlegal bases for the applicability of those exemptions;  and ( 3)  a description of the specific\nmeasures that were taken to search for responsive records.  On June 17,  2016,  the Attorney\nGeneral' s Office furnished those materials.  On June 21,  2016,  the Public Access Bureau sent\n\nthe\n\nnon -confidential portions of the Attorney General' s Office' s response to the Law Clinic;  it did not\nreply. \n\nANALYSIS\n\nFOIA requires a public body to conduct a \" reasonable search tailored to the nature\n\nof a particular request.\"  Campbell v.  United States Dept of Justice,  164 F. 3d 20,  28 ( D. C.  Cir. \n1998).  A public body is not required to \" search every record system[,]\"  but it \" cannot\nsearch to only one record system if there are others that are likely to turn up the requested\ninformation.\"  Oglesby v.  United States Dep' t of the Army,  920 F. 2d 57,  68 ( D. C.  Cir.  1990).  The\nadequacy of a FOIA search is generally determined not by the fruits of the search,  but by the\nappropriateness of the methods used to carry out the search.\"  Jturralde v.  Comptroller of\nCurrency,  315 F. 3d 311,  315 ( D. C.  Cir. 2003);  see also Lahr v.  National Transportation Safety\nBoard,  569 F. 3d 964,  988 ( 9th Cir. 2009) (\" the failure to produce or identify a few isolated\ndocuments cannot by itself prove the searches inadequate.\"). \n\nlimit its\n\nIn its Request for Review,  the Law Clinic asserted that the Attorney General' s\n\nOffice either improperly withheld non- exempt records or did not conduct an adequate search for\nresponsive records.  In support of its assertion that the search was inadequate, the Law Clinic\n\ninvitation to a social event,  dated March 25,  2016,  that was sent\n\nreferenced a copy of an e- mail\nby a member of the Office of the New York Attorney General to various individuals,  including a\nmember of the Attorney General' s Office.  The Law Clinic stated that the Attorney General' s\nOffice did not disclose that record in its May 2,  2016,  response to the FOIA request. \nresponse to the Public Access Bureau,  the Attorney General' s Office stated that because it had\nnot located that record in its initial search,  it asked the Division Chief and Environmental\n\nIn its\n\nCounsel of the Environmental Law and Asbestos Litigation Division to conduct a second search. \n\nfor the Free Market Environmental Law Clinic,  to Illinois Attorney General' s Office ( April\n\n11,  2016). \n\nLetter from Craig E.  Richardson, Executive Director, E &  E Legal,  and Christopher C.  Horner, \n\n\fMr. Matthew D.  Hardin\n\nMs.  Caitlin Q.  Knutte\nAugust 24,  2016\n\nPage 3\n\nThe Attorney General' s Office then provided the e- mail\nLaw Clinic in a supplemental response dated June 17,  2016, which was also provided to the\n\ninvitation and additional\n\nrecords to the\n\nPublic Access Bureau.  The disclosure of those records by the Attorney General' s Office resolves\nthe Law Clinic' s complaint that the Attorney General' s Office failed to provide the records in its\nMay 2,  2016,  response.  See Duncan Publishing, Inc. v. City of Chicago,  304 Ill. App.  3d 778, \n782 ( 1st Dist.  1999) (\" Once an agency produces all records related to a plaintiffs request,  the\nmerits of a plaintiffs claim for relief, in the form of production of information, becomes moot.\") \n\nWith respect to the adequacy of its efforts to locate responsive records,  the\n\nAttorney General' s Office' s response to the Public Access Bureau explained that it: ( 1) \nrequested\nand obtained from its Human Resources Bureau a list of the names of all attorneys employed in\n\nthe Environmental Law and Asbestos Litigation Division in March 2016; ( 2)  requested that its\n\nInformation Technology Bureau search the e- mail archives of those attorneys during the time\nframe referenced in the FOIA request for e- mails sent to or received from anyone with the Office\n\nof the New York Attorney General' s domain ( @ag. ny. gov); ( 3)  notified the Bureau Chiefs of the\nEnvironmental Law Bureau in Springfield and Chicago of the request and that the search was\n\nbeing conducted by the Information Technology Bureau; ( 4)  asked the Division Chief and\nEnvironmental Counsel of the Environmental Law and Asbestos Litigation Division as well as\n\nthe Bureau Chiefs of the Environmental Law Bureaus in Springfield and Chicago and the Bureau\n\nChief of the Environmental Crimes Bureau to search for responsive records; ( 5)  obtained and\n\nreviewed records from the Information Technology Bureau and the Division Chief and\nEnvironmental Counsel of the Environmental Law and Asbestos Litigation Division,  and\n\nprovided non- exempt portions of the records to E &  E Legal and the Law Clinic; the above- \n\nmentioned Bureau Chiefs did not locate responsive records. \n\nThe measures taken appear to be reasonably calculated to locate all records\n\nresponsive to the request.  Further,  apart from a portion of an e- mail that was redacted pursuant\n\nto section 7( 1)( f) and a copy of a final version of a brief filed with a federal appellate court\nwhich is a matter of public record in that case,  most of the additional records that were provided\nresponse to the request primarily relate to\nin the Attorney General' s Office' s supplemental\nscheduling and other logistical matters rather than substantive communications concerning\npublic business.  The omission of these records from the initial response to the FOIA request did\n\nnot render the Attorney General' s Office' s search inadequate.  Rather,  the available information\nindicates that the Attorney General' s Office consulted the relevant staff members and searched\nthe recordkeeping systems that were likely to contain responsive records.  Accordingly,  this\noffice concludes that the Attorney General' s Office conducted an adequate search for records\n\nresponsive\n\nto the Law Clinic' s April 11,  2016,  FOIA request. \n\n\fMr. Matthew D.  Hardin\n\nMs.  Caitlin Q.  Knutte\nAugust 24,  2016\n\nPage 4\n\nRedacted and Withheld Records\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2014);  see also Southern Illinoisan v. \nIllinois Dept.  of Public Health,  218 I11.  2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/\n\n1. 2 ( West 2014). \n\nSection 7( 1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations,  memoranda and other records in which opinions are expressed, or policies or\n\nf) exemption is equivalent to the deliberative process exemption in the Federal\n\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 7( 1)(\nFOIA ( 5 U. S. C. § 552( b)( 5) ( 2012)),  which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" ( Emphasis added.)  Harwood v.  McDonough,  344 I11.  App.  3d 242,  247\n1st Dist.  2003).  The exemption is \" intended to protect\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood,  344 Ill. App.  3d at 248;  see also Kalven v.  City of Chicago,  2013 IL App ( 1st)  121846, \n24,  7 N. E. 3d 741,  748 ( 2013),  quoting Public Citizen,  Inc.  v. Office of Management &  Budget, \n598 F. 3d 865,  876 ( D. C.  Cir. 2010) (\" Only those portions of a predecisional document\nreflect the give and take of the deliberative process may be withheld.\"). \n\nthe communications process and\n\nthat\n\nThe response of the Attorney General' s Office' s FOIA officer to the Public Access\n\nBureau described the records withheld pursuant to sections 7( 1)( d)( i)  and 7( 1)( f) as follows: \n\n1)  A handout and related records provided to attendees of a March 29,  2016, \n\nmeeting of several Attorneys General and Attorneys General staff and others who \" were invited\nto provide analysis [ of] various environmental\nmeeting for participating in a confidential strategy and briefing session related to possible\ninvestigations and legal actions that could be taken with regard to identified environmental\nissues.\" \n\nissues.  All of the attendees were invited to the\n\n2)  E- mail exchanges involving the offices of several state Attorneys General,  the\n\nDistrict of Columbia, and local governmental entities that \"joined together to file a brief in\nsupport of the Respondents in\"  a case pending before a federal appeals court. \n\n3)  E- mails exchanged by members of the Attorney General' s Office and the\n\nOffice of the New York Attorney general concerning the above -referenced March 29,  2016, \nmeeting or filing of the brief which \" discuss the logistics of the meeting as they relate to\nspecified substantive areas of law,  and solicit information related to specific environmental\nissues contemplated or taken by the participating offices,  and contain draft records shared with\nthe stakeholders.\" \n\n\fMr.  Matthew D.  Hardin\n\nMs.  Caitlin Q.  Knutte\nAugust 24,  2016\n\nPage 5\n\n4)  Draft agreements exchanged by the Attorney General' s Office and \" other\ngovernment agencies,  including a draft common interest agreement applicable to the above\nreferenced multistate working group' s activities with respect\nvarious environmental\n\nto investigating and prosecuting\nissues and a draft brief related to\"  the case pending before the federal\n\nappeals court? \n\nThe Attorney General' s Office asserted that the handout and related records\n\nprovided to the attendees of the March 29,  2016,  meeting are \" exempt under the rationale that\npublic bodies must be able to evaluate information internally,  as well as with other government\nagencies that may be similarly affected by the information,  to explore possible courses of action\nconfidentially before making final determinations that should be shared with the public. i3 The\nAttorney General' s Office provided the Public Access Bureau with additional confidential\ninformation that we are prohibited from disclosing in this determination.  See 5 ILCS 140/ 9. 5( d) \nWest 2014). \n\nBased on this office' s review, the withheld records related to the March 29,  2016, \n\nmeeting include records expressing opinions and recommendations which constitute inter -agency\npre -decisional communications within the scope of section 7( 1)( f). Certain other materials that\n\ninformation such as topics of discussion also are predecisional and deliberative in\ninto matters under consideration at the meeting. \n\nidentify factual\nnature because disclosure would provide insight\nSee Judicial Watch, Inc.  v.  U.S. Dep't of Commerce,  90 F.  Supp.  2d 9,  14 ( D. D. C.  2000) \nproposed meeting agendas that are replete with outstanding issues and questions to be\n\nconsidered\"  in connection with trade missions were exempt from disclosure under the\n\ndeliberative process exemption in Federal FOIA4);  Missouri Coalition v. Environment v.  United\nStates Army Corps of Engineers,  No. 4: 05CV02039FRB,  2007 WL 869487,  at * 7 ( E.D.  Mo. \nMar. 20,  2007) ( federal district court agreed with federal agency' s assertion that agenda and\nminutes of task force meetings were exempt\nprocess exemption because they \" evidence the issues the [ task force]  considered worthy of\ndiscussion,  and as such evidence the thought processes and issues of the [ task force]  members.\") \n\nfrom disclosure under the federal deliberative\n\nThe remaining records that were withheld consist of preliminary drafts or e- mails\n\n2Letter from Caitlin Q.  Knutte,  Assistant Attorney General,  FOIA Officer, Office of the Attorney\nGeneral,  to Steve Silverman,  Assistant Bureau Chief,  Public Access Bureau,  Office of the Illinois Attorney General\nJune 17,  2016),  at 4- 7,  9. \n\n3Letter from Caitlin Q.  Knutte,  Assistant Attorney General,  FOIA Officer,  Office of the Attorney\nGeneral,  to Steve Silverman,  Assistant Bureau Chief, Public Access Bureau,  Office of the Illinois Attorney General\nJune 17,  2016),  at 5. \n\n4The deliberative process exemption in Federal FOIA applies to \" inter -agency or intra -agency\nmemorandums or letters that would not be available by law to a party other than an agency in litigation with the\nagency,  provided that the deliberative process privilege shall not apply to records created 25 years or more before\nthe date on which the records were requested[.]\" \n\n\fr. Matthew D.  Hardin\n\nMs.  Caitlin Q.  Knutte\nAugust 24,  2016\n\nPage 6\n\nthat reflect opinions,  recommendations,  or otherwise provide insight\nAttorney General' s Office and one or more governmental entities to jointly formulate actions. \nSuch records are pre -decisional\nthe records related to the March 29,  2016,  meeting were publicly cited or identified by the\nAttorney General.  Accordingly,  the Public Access Bureau concludes that the Attorney General' s\nOffice has sustained its burden of demonstrating that the records at issue are exempt from\ndisclosure pursuant to section 7( 1)(\ndecline to address the applicability of section 7( 1)( d)( i)  of FOIA. \n\nin nature,  and there is no indication that any of those records or\n\nf) of FOIA.  Because that determination is dispositive,  we\n\ninto the process used by the\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  If you have any questions,  please contact me at\n312)  814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n42018 f 3d search 71f proper\n\nsa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Correspondence between state attorneys general on environmental policy","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-42018/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nAugust 24, 2016\n\nVia electronic mail\n\nMr. Matthew D. Hardin\n\nAttorney - at -Law\n314 West Grace Street, Suite 304\n\n[street address redacted for site publication -- see original PDF]\nMatthewDHardin@gmail.\n\ncom\n\nVia electronic mail\n\nMs. Caitlin Q. Knutte\nAssistant Attorney General and FOIA Officer\nIllinois Attorney General's Office\n500 South 2nd Street\n\nSpringfield, Illinois 62706\nfoiaofficer@atg. state. il.us\n\nRE: FOIA Request for Review — 2016 PAC 42018\n\nDear Mr. Hardin and Ms. Knutte: \n\nThis determination is issued pursuant to section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2014)). For the reasons discussed below, the\n\nPublic Access Bureau concludes that the Office of the Illinois Attorney General (Attorney\nGeneral's Office) conducted a reasonable search for records responsive to an April 11, 2016, \n\nFOIA request\n\njointly submitted by the Energy & Environment Legal Institute (E & E Legal) and\n\nthe Free Market Environmental Law Clinic (Law Clinic). The Public Access Bureau further\nconcludes that the Attorney General's Office did not improperly withhold records that it asserted\nare exempt\n\nfrom disclosure under FOIA. \n\nOn April\n\n11, 2016, E & E Legal and the Law Clinic submitted a FOIA request to\nthe Attorney General's Office seeking various records including \" all correspondence between the\nIllinois Attorney General, or the Office's Environmental Division Office, except\n\nsecretarial/ administrative and paralegal staff, and employees of the New York Attorney General's\n\nOffice, dated from March 20, 2016 through March 30, 2016.\" 1 (Emphasis in original.) On May\n2, 2016, the Attorney's General's Office denied that portion of the request pursuant to sections\nf) of FOIA (5 ILCS 140/ 7(1)(d)(i), (1)(f) (West 2015 Supp.)). On May 20, \n7(1)(d)(i) and 7(1)(2016, the Law Clinic submitted a Request for Review on behalf of itself and E & E Legal\n\nin\n\nwhich it claims that the cited exemptions are inapplicable and questions whether the Attorney\nGeneral's Office conducted an adequate search for responsive records. \n\nOn June 1, 2016, the Public Access Bureau sent a copy of the Request\n\nfor Review\n\nto the Attorney General's Office's FOIA Officer and requested: (were withheld under section 7(1)(d)(i) and 7(1)(f); (2) a detailed explanation of the factual and\n\n1) copies of the records that\n\nlegal bases for the applicability of those exemptions; and (3) a description of the specific\nmeasures that were taken to search for responsive records. On June 17, 2016, the Attorney\nGeneral's Office furnished those materials. On June 21, 2016, the Public Access Bureau sent\n\nthe\n\nnon -confidential portions of the Attorney General's Office's response to the Law Clinic; it did not\nreply. \n\nANALYSIS\n\nFOIA requires a public body to conduct a \" reasonable search tailored to the nature\n\nof a particular request.\" Campbell v. United States Dept of Justice, 164 F. 3d 20, 28 (D. C. Cir. \n1998). A public body is not required to \" search every record system[,]\" but it \" cannot\nsearch to only one record system if there are others that are likely to turn up the requested\ninformation.\" Oglesby v. United States Dep' t of the Army, 920 F. 2d 57, 68 (D. C. Cir. 1990). The\nadequacy of a FOIA search is generally determined not by the fruits of the search, but by the\nappropriateness of the methods used to carry out the search.\" Jturralde v. Comptroller of\nCurrency, 315 F. 3d 311, 315 (D. C. Cir. 2003); see also Lahr v. National Transportation Safety\nBoard, 569 F. 3d 964, 988 (9th Cir. 2009) (\" the failure to produce or identify a few isolated\ndocuments cannot by itself prove the searches inadequate.\"). \n\nlimit its\n\nIn its Request for Review, the Law Clinic asserted that the Attorney General's\n\nOffice either improperly withheld non- exempt records or did not conduct an adequate search for\nresponsive records. In support of its assertion that the search was inadequate, the Law Clinic\n\ninvitation to a social event, dated March 25, 2016, that was sent\n\nreferenced a copy of an e- mail\nby a member of the Office of the New York Attorney General to various individuals, including a\nmember of the Attorney General's Office. The Law Clinic stated that the Attorney General's\nOffice did not disclose that record in its May 2, 2016, response to the FOIA request. \nresponse to the Public Access Bureau, the Attorney General's Office stated that because it had\nnot located that record in its initial search, it asked the Division Chief and Environmental\n\nIn its\n\nCounsel of the Environmental Law and Asbestos Litigation Division to conduct a second search. \n\nfor the Free Market Environmental Law Clinic, to Illinois Attorney General's Office (April\n\n11, 2016). \n\nLetter from Craig E. Richardson, Executive Director, E & E Legal, and Christopher C. Horner, \n\nThe Attorney General's Office then provided the e- mail\nLaw Clinic in a supplemental response dated June 17, 2016, which was also provided to the\n\ninvitation and additional\n\nrecords to the\n\nPublic Access Bureau. The disclosure of those records by the Attorney General's Office resolves\nthe Law Clinic's complaint that the Attorney General's Office failed to provide the records in its\nMay 2, 2016, response. See Duncan Publishing, Inc. v. City of Chicago, 304 Ill. App. 3d 778, \n782 (1st Dist. 1999) (\" Once an agency produces all records related to a plaintiffs request, the\nmerits of a plaintiffs claim for relief, in the form of production of information, becomes moot.\") \n\nWith respect to the adequacy of its efforts to locate responsive records, the\n\nAttorney General's Office's response to the Public Access Bureau explained that it: (1) \nrequested\nand obtained from its Human Resources Bureau a list of the names of all attorneys employed in\n\nthe Environmental Law and Asbestos Litigation Division in March 2016; (2) requested that its\n\nInformation Technology Bureau search the e- mail archives of those attorneys during the time\nframe referenced in the FOIA request for e- mails sent to or received from anyone with the Office\n\nof the New York Attorney General's domain (@ag. ny. gov); (3) notified the Bureau Chiefs of the\nEnvironmental Law Bureau in Springfield and Chicago of the request and that the search was\n\nbeing conducted by the Information Technology Bureau; (4) asked the Division Chief and\nEnvironmental Counsel of the Environmental Law and Asbestos Litigation Division as well as\n\nthe Bureau Chiefs of the Environmental Law Bureaus in Springfield and Chicago and the Bureau\n\nChief of the Environmental Crimes Bureau to search for responsive records; (5) obtained and\n\nreviewed records from the Information Technology Bureau and the Division Chief and\nEnvironmental Counsel of the Environmental Law and Asbestos Litigation Division, and\n\nprovided non- exempt portions of the records to E & E Legal and the Law Clinic; the above- \n\nmentioned Bureau Chiefs did not locate responsive records. \n\nThe measures taken appear to be reasonably calculated to locate all records\n\nresponsive to the request. Further, apart from a portion of an e- mail that was redacted pursuant\n\nto section 7(1)(f) and a copy of a final version of a brief filed with a federal appellate court\nwhich is a matter of public record in that case, most of the additional records that were provided\nresponse to the request primarily relate to\nin the Attorney General's Office's supplemental\nscheduling and other logistical matters rather than substantive communications concerning\npublic business. The omission of these records from the initial response to the FOIA request did\n\nnot render the Attorney General's Office's search inadequate. Rather, the available information\nindicates that the Attorney General's Office consulted the relevant staff members and searched\nthe recordkeeping systems that were likely to contain responsive records. Accordingly, this\noffice concludes that the Attorney General's Office conducted an adequate search for records\n\nRedacted and Withheld Records\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 (West 2014); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/\n\n1. 2 (West 2014). \n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nf) exemption is equivalent to the deliberative process exemption in the Federal\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(FOIA (5 U. S. C. § 552(b)(5) (2012)), which applies to \" inter- and intra -agency predecisional and\ndeliberative material.\" (Emphasis added.) Harwood v. McDonough, 344 I11. App. 3d 242, 247\n1st Dist. 2003). The exemption is \" intended to protect\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood, 344 Ill. App. 3d at 248; see also Kalven v. City of Chicago, 2013 IL App (1st) 121846, \n24, 7 N. E. 3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of Management & Budget, \n598 F. 3d 865, 876 (D. C. Cir. 2010) (\" Only those portions of a predecisional document\nreflect the give and take of the deliberative process may be withheld.\"). \n\nthe communications process and\n\nthat\n\nThe response of the Attorney General's Office's FOIA officer to the Public Access\n\nBureau described the records withheld pursuant to sections 7(1)(d)(i) and 7(1)(f) as follows: \n\n1) A handout and related records provided to attendees of a March 29, 2016, \n\nmeeting of several Attorneys General and Attorneys General staff and others who \" were invited\nto provide analysis [ of] various environmental\nmeeting for participating in a confidential strategy and briefing session related to possible\ninvestigations and legal actions that could be taken with regard to identified environmental\nissues.\" \n\nissues. All of the attendees were invited to the\n\n2) E- mail exchanges involving the offices of several state Attorneys General, the\n\nDistrict of Columbia, and local governmental entities that \"joined together to file a brief in\nsupport of the Respondents in\" a case pending before a federal appeals court. \n\n3) E- mails exchanged by members of the Attorney General's Office and the\n\nOffice of the New York Attorney general concerning the above -referenced March 29, 2016, \nmeeting or filing of the brief which \" discuss the logistics of the meeting as they relate to\nspecified substantive areas of law, and solicit information related to specific environmental\nissues contemplated or taken by the participating offices, and contain draft records shared with\n\n4) Draft agreements exchanged by the Attorney General's Office and \" other\ngovernment agencies, including a draft common interest agreement applicable to the above\nreferenced multistate working group's activities with respect\nvarious environmental\n\nto investigating and prosecuting\nissues and a draft brief related to\" the case pending before the federal\n\nappeals court? \n\nThe Attorney General's Office asserted that the handout and related records\n\nprovided to the attendees of the March 29, 2016, meeting are \" exempt under the rationale that\npublic bodies must be able to evaluate information internally, as well as with other government\nagencies that may be similarly affected by the information, to explore possible courses of action\nconfidentially before making final determinations that should be shared with the public. i3 The\nAttorney General's Office provided the Public Access Bureau with additional confidential\ninformation that we are prohibited from disclosing in this determination. See 5 ILCS 140/ 9. 5(d) \nWest 2014). \n\nBased on this office's review, the withheld records related to the March 29, 2016, \n\nmeeting include records expressing opinions and recommendations which constitute inter -agency\npre -decisional communications within the scope of section 7(1)(f). Certain other materials that\n\ninformation such as topics of discussion also are predecisional and deliberative in\ninto matters under consideration at the meeting. \n\nidentify factual\nnature because disclosure would provide insight\nSee Judicial Watch, Inc. v. U.S. Dep't of Commerce, 90 F. Supp. 2d 9, 14 (D. D. C. 2000) \nproposed meeting agendas that are replete with outstanding issues and questions to be\n\nconsidered\" in connection with trade missions were exempt from disclosure under the\n\ndeliberative process exemption in Federal FOIA4); Missouri Coalition v. Environment v. United\nStates Army Corps of Engineers, No. 4: 05CV02039FRB, 2007 WL 869487, at * 7 (E.D. Mo. \nMar. 20, 2007) (federal district court agreed with federal agency's assertion that agenda and\nminutes of task force meetings were exempt\nprocess exemption because they \" evidence the issues the [ task force] considered worthy of\ndiscussion, and as such evidence the thought processes and issues of the [ task force] members.\") \n\nfrom disclosure under the federal deliberative\n\nThe remaining records that were withheld consist of preliminary drafts or e- mails\n\n2 Letter from Caitlin Q. Knutte, Assistant Attorney General, FOIA Officer, Office of the Attorney\nGeneral, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General\nJune 17, 2016), at 4- 7, 9. \n\n3 Letter from Caitlin Q. Knutte, Assistant Attorney General, FOIA Officer, Office of the Attorney\nGeneral, to Steve Silverman, Assistant Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General\nJune 17, 2016), at 5. \n\n4 The deliberative process exemption in Federal FOIA applies to \" inter -agency or intra -agency\nmemorandums or letters that would not be available by law to a party other than an agency in litigation with the\nagency, provided that the deliberative process privilege shall not apply to records created 25 years or more before\n\nthat reflect opinions, recommendations, or otherwise provide insight\nAttorney General's Office and one or more governmental entities to jointly formulate actions. \nSuch records are pre -decisional\nthe records related to the March 29, 2016, meeting were publicly cited or identified by the\nAttorney General. Accordingly, the Public Access Bureau concludes that the Attorney General's\nOffice has sustained its burden of demonstrating that the records at issue are exempt from\ndisclosure pursuant to section 7(1)(decline to address the applicability of section 7(1)(d)(i) of FOIA. \n\nin nature, and there is no indication that any of those records or\n\nf) of FOIA. Because that determination is dispositive, we\n\ninto the process used by the\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n42018 f 3d search 71f proper\n\nsa"}
{"id":882,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-07-06","case_number":null,"request_numbers":["43086"],"title":"Metropolitan Water Reclamation District properly withheld proposed agreement under 7(1)(h)","filename":"43086, issued July 6, 2017.pdf","rel_path":null,"word_count":1156,"summary":"The requester sought a copy of a proposed 'off-take' agreement between the Metropolitan Water Reclamation District and BP, which the District withheld as a preliminary draft. The PAC determined that the District did not improperly withhold the document under FOIA.","plain_summary":"Mr. Archey requested a copy of a proposed 'offtake' agreement between the Metropolitan Water Reclamation District of Greater Chicago and BP. The District refused to provide it, claiming it was exempt from disclosure under section 7(1)(h) of FOIA because it was a proposal and no award or final selection had been made. The Public Access Bureau of the Illinois Attorney General's office concluded that the District did not violate FOIA by withholding the document, as the plain language of the exemption permits withholding until a final selection or award is made.","holding":"The Metropolitan Water Reclamation District of Greater Chicago did not improperly withhold the requested proposed agreement.","legal_question":"Whether the Metropolitan Water Reclamation District properly withheld a proposed agreement under the preliminary draft exemption of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(h)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":"Mr. Michael Archey","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(h)","subject_description":"The request concerned a proposed biogas production and beneficial use agreement between a public water district and a private corporation.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_h/43086%2C%20issued%20July%206%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","contract","biogas","exemption 7(1)(h)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 6,  2017\n\nVia electronic mail\n\nMr. Michael Archey\nGTM Strategies\n\nmdarchey@mdarcheyllc.\n\ncom\n\nVia electronic mail\n\nMs. Helen Shields -Wright\n\nHead Assistant Attorney\nMetropolitan Water Reclamation District\n\nOf Greater Chicago\n\n100 East Erie Street\n\n[street address redacted for site publication -- see original PDF]\nfoiarequest@mwrd. org\n\nRE:  FOIA Request for Review — 2016 PAC 43086\n\nDear Mr. Archey and Ms.  Shields -Wright: \n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District\n\nof Greater Chicago did not improperly withhold a proposed agreement responsive to Mr. \nMichael Archey' s July 8,  2016,  FOIA request. \n\nof \"the ' off take'  agreement between the District and BP for the Calumet biogas production and\n\nOn that date,  Mr. Archey submitted a FOIA request\n\nto the District seeking a copy\n\nbeneficial use project[.]\"\n\nI On July 18,  2016,  the District responded that because it has not\n\nexecuted an agreement,  the responsive agreement\n\n7( 1)( h)  of FOIA ( 5 ILCS 140/ 7(\n\nto section\n1)( h) ( West 2015 Supp.)).  Mr. Archey disputes that response. \n\nfrom disclosure pursuant\n\nis exempt\n\nOu August 2,  2016,  this office sent a copy of the Request\n\nfor Review to the\n\nJuly 8,  2016). \n\nFOIA request submitted by Michael Archey to Metropolitan Water District of Greater Chicago\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • ( 312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Michael Archey\nMs.  Helen Shields -Wright\n\nJuly 6,  2017\nPage 2\n\nDistrict and asked it to provide a copy of the record that the District withheld together with a\ndetailed explanation of the factual and legal bases for the applicability of section 7( 1)( h).  On\nAugust 18,  2016,  the District\n11,  2016,  Mr. Archey\nreplied to the District' s written response. \n\nfurnished those materials.  On November\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying ( 5 ILCS 140/ 1. 2 ( West 2016)),  and exemptions to disclosure\nare to be narrowly construed.  Lieber v.  Board of Trustees of Southern Illinois Univ.,  176 Ill. 2d\n401,  408 ( 1997);  see also 5 ILCS 140/ 1 ( West 2016).  A public body \" has the burden of proving\nby clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS 140/ 1. 2\nWest 2016). \n\nSection 7( 1)( h)  of FOIA exempts from disclosure: \n\nProposals and bids for any contract,  grant, or agreement, \n\nincluding information which if it were disclosed would frustrate\nprocurement or give an advantage to any person proposing to enter\ninto a contractor agreement with the body,  until an award or final\nselection is made.  Information prepared by or for the body in\npreparation of a bid solicitation shall be exempt until an award or\n\nfinal selection is made. ( Emphasis added.) \n\nWhen construing the meaning of a statutory provision,  the primary objective is to\n\nascertain the intent of the legislature.  See,  e. g., DeLuna v. Burciaga, 223 I11.  2d 49,  59 ( 2006). \nThe plain language of the statute is the best indication of that intent,  and if that language is clear\nand unambiguous, \n2d 444,  452 ( 2012).  The plain language of section 7( 1)( h)  exempts \" proposals and bids\"  from\ndisclosure only \" until an award or final selection is made.\" \n\nit must be given effect.\"  People v.  Rinehart,  2012 IL 111719, ¶ 24,  962 N. E. \n\nMr. Archey' s Request for Review asserts that the record in question is \" an\nagreement'  of some form and substance that is being relied on by the District to make\nresource allocation decisions.\" ( Emphasis added.)  The District' s response to this office\nexplained that after reviewing another company' s proposed agreement\nofftake agreement with the sale of the biomethane gas and attributes going to BP,\" * * * \nDistrict determined that more favorable terms could be established\n\nif the District contracted\n\nthe\n\nthat included \" a long- term\n\n\fr. Michael Archey\nMs.  Helen Shields -Wright\n\nJuly 6,  2017\nPage 3\n\ndirectly with BP.\" 2 The District further explained that although the District is actively\nt] he District has not yet sought, and the Board of\nnegotiating an agreement with BP, \"[\nCommissioners has not yet granted,  authority for the District to enter into an offtake agreement\nwith BP. i3 The District' s response included correspondence documenting that the District\ncontinued to negotiate terms of the agreement with BP after Mr. Archey submitted his Request\nfor Review.  Mr. Archey replied to the District' s response by criticizing the District' s\nprocurement process and by questioning its authority to engage in negotiations with BP while\ndenying his firm a similar opportunity. 4\n\nBased on the available information,  the District had not made a final award or\n\nselection on the proposed agreement with BP at the time Mr. Archey submitted his FOIA\nInstead,  the District was in the process of negotiating contract terms as a precondition to\nrequest. \nseeking approval\nfrom the District' s Board of Commissioner' s to enter into an agreement. \nBecause the plain language of section 7( 1)( h)  permits the District to withhold a proposed\nagreement until a final selection or award is made,  this office concludes that the District response\n\nto Mr.  Archey' s request did not violate FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at ( 312)  814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n43086 f 71h proper spd\n\n2Letter from Helen Shields - Wright,  Head Assistant Attorney,  Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Steve Silverman,  Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral,  State of Illinois ( August\n\n18,  2016),  at 2- 3. \n\nLetter from Helen Shields -Wright, Head Assistant Attorney,  Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Steve Silverman,  Bureau Chief, Public Access Bureau,  Office of the Attorney\nGeneral,  State of Illinois ( August\n\n18,  2016),  at 3. \n\nThe Public Access Counselor' s authority to limited to reviewing alleged violations of FOIA and\nthe Open Meetings Act ( 5 ILCS 120/ 1 et seq. ( West 2016)).  See 15 ILCS 205/ 7( c) ( West 2016)).  This office does\nnot have authority to review Mr.  Archey' s concerns about the District' s procurement process. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A proposed biogas production agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-43086/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 6, 2017\n\nVia electronic mail\n\nMr. Michael Archey\nGTM Strategies\n\nmdarchey@mdarcheyllc.\n\ncom\n\nVia electronic mail\n\nMs. Helen Shields -Wright\n\nHead Assistant Attorney\nMetropolitan Water Reclamation District\n\nOf Greater Chicago\n\n100 East Erie Street\n\n[street address redacted for site publication -- see original PDF]\nfoiarequest@mwrd. org\n\nRE: FOIA Request for Review — 2016 PAC 43086\n\nDear Mr. Archey and Ms. Shields -Wright: \n\nThis determination is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District\n\nof Greater Chicago did not improperly withhold a proposed agreement responsive to Mr. \nMichael Archey's July 8, 2016, FOIA request. \n\nof \"the ' off take' agreement between the District and BP for the Calumet biogas production and\n\nOn that date, Mr. Archey submitted a FOIA request\n\nto the District seeking a copy\n\nbeneficial use project[.]\"\n\nI On July 18, 2016, the District responded that because it has not\n\nexecuted an agreement, the responsive agreement\n\n7(1)(h) of FOIA (5 ILCS 140/ 7(to section\n1)(h) (West 2015 Supp.)). Mr. Archey disputes that response. \n\nfrom disclosure pursuant\n\nis exempt\n\nOu August 2, 2016, this office sent a copy of the Request\n\nfor Review to the\n\nJuly 8, 2016). \n\nFOIA request submitted by Michael Archey to Metropolitan Water District of Greater Chicago\n\nDistrict and asked it to provide a copy of the record that the District withheld together with a\ndetailed explanation of the factual and legal bases for the applicability of section 7(1)(h). On\nAugust 18, 2016, the District\n11, 2016, Mr. Archey\nreplied to the District's written response. \n\nfurnished those materials. On November\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are presumed to\nbe open to inspection and copying (5 ILCS 140/ 1. 2 (West 2016)), and exemptions to disclosure\nare to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois Univ., 176 Ill. 2d\n401, 408 (1997); see also 5 ILCS 140/ 1 (West 2016). A public body \" has the burden of proving\nby clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2\nWest 2016). \n\nSection 7(1)(h) of FOIA exempts from disclosure: \n\nProposals and bids for any contract, grant, or agreement, \n\nincluding information which if it were disclosed would frustrate\nprocurement or give an advantage to any person proposing to enter\ninto a contractor agreement with the body, until an award or final\nselection is made. Information prepared by or for the body in\npreparation of a bid solicitation shall be exempt until an award or\n\nfinal selection is made. (Emphasis added.) \n\nWhen construing the meaning of a statutory provision, the primary objective is to\n\nascertain the intent of the legislature. See, e. g., DeLuna v. Burciaga, 223 I11. 2d 49, 59 (2006). \nThe plain language of the statute is the best indication of that intent, and if that language is clear\nand unambiguous, \n2d 444, 452 (2012). The plain language of section 7(1)(h) exempts \" proposals and bids\" from\ndisclosure only \" until an award or final selection is made.\" \n\nit must be given effect.\" People v. Rinehart, 2012 IL 111719, ¶ 24, 962 N. E. \n\nMr. Archey's Request for Review asserts that the record in question is \" an\nagreement' of some form and substance that is being relied on by the District to make\nresource allocation decisions.\" (Emphasis added.) The District's response to this office\nexplained that after reviewing another company's proposed agreement\nofftake agreement with the sale of the biomethane gas and attributes going to BP,\" * * * \n\ndirectly with BP.\" 2 The District further explained that although the District is actively\nt] he District has not yet sought, and the Board of\nnegotiating an agreement with BP, \"[\nCommissioners has not yet granted, authority for the District to enter into an offtake agreement\nwith BP. i3 The District's response included correspondence documenting that the District\ncontinued to negotiate terms of the agreement with BP after Mr. Archey submitted his Request\nfor Review. Mr. Archey replied to the District's response by criticizing the District's\nprocurement process and by questioning its authority to engage in negotiations with BP while\ndenying his firm a similar opportunity. 4\n\nBased on the available information, the District had not made a final award or\n\nselection on the proposed agreement with BP at the time Mr. Archey submitted his FOIA\nInstead, the District was in the process of negotiating contract terms as a precondition to\nrequest. \nseeking approval\nfrom the District's Board of Commissioner's to enter into an agreement. \nBecause the plain language of section 7(1)(h) permits the District to withhold a proposed\nagreement until a final selection or award is made, this office concludes that the District response\n\nto Mr. Archey's request did not violate FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at (312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n43086 f 71h proper spd\n\n2 Letter from Helen Shields - Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (August\n\n18, 2016), at 2- 3. \n\nLetter from Helen Shields -Wright, Head Assistant Attorney, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Steve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney\nGeneral, State of Illinois (August\n\n18, 2016), at 3. \n\nThe Public Access Counselor's authority to limited to reviewing alleged violations of FOIA and\nthe Open Meetings Act (5 ILCS 120/ 1 et seq. (West 2016)). See 15 ILCS 205/ 7(c) (West 2016)). This office does\nnot have authority to review Mr. Archey's concerns about the District's procurement process."}
{"id":883,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-07-17","case_number":null,"request_numbers":["43174"],"title":"Cook County Medical Examiner's Office allowed to charge $5 per page fee for photographs of inquest files","filename":"43174, issued July 17, 2020.pdf","rel_path":null,"word_count":2562,"summary":"A requester sought to photograph historical inquest files from the Cook County Medical Examiner's Office, and the PAC determined the office could charge a fee for those photographs.","plain_summary":"A requester asked to inspect old inquest files at the Cook County Medical Examiner's Office and wanted to photograph them without paying a fee. The Public Access Bureau concluded that the Medical Examiner's Office did not improperly respond to the FOIA request. The Bureau found that the $5.00 per page fee for copies, including photographs, is authorized by section 4-7001 of the Counties Code, which applies to FOIA requests for records from a coroner or medical examiner's office.","holding":"The Medical Examiner's Office did not violate FOIA by assessing a $5.00 per page fee for photographs taken of inquest files, as the fee is authorized by the Counties Code.","legal_question":"Whether a public body may charge a fee for a requester to photograph public records when a separate statute authorizes a fee for copies of those specific records.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Medical Examiner's Office","requesting_party":"Mr. Costin","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought to photograph historical inquest files from 1912 and 1914.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_d/43174%2C%20issued%20July%2017%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","photographing records","medical examiner","copying costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly 17,  2020\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Laura Lechowicz Felicione\n\nSpecial Legal Counsel\n\nFreedom of Information Officer\n\nOffice of the Cook County Board President\n69 West Washington Boulevard,  Suite 1415\n\n[street address redacted for site publication -- see original PDF]\nlaura. lechowicz@cookcountyil. gov\n\nRE:  FOIA Request\n\nfor Review —  2016 PAC 43174\n\nDear\n\nand Ms.  Felicione: \n\nThis determination is issued pursuant\n\nto section 9. 5( f) of the Freedom of . \n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). 1 For the reasons that follow, the\nPublic Access Bureau concludes that the Cook County Medical Examiner' s Office ( Medical\nExaminer' s Office)  did not improperly respond to\n\nJune 26,  2016,  FOIA request. \n\nOn June 26,  2016, \n\nsubmitted a FOIA request\n\nto the Medical\n\nExaminer' s Office seeking to inspect the inquest files concerning the deaths of Mr. Thomas Kelly\nin 1912 and Mr.  Andrew Kelly in 1914. \nExaminer' s Office that he intended to take photographs while inspecting the records.  On July 12, \n\ninformed the Medical\n\nIn his FOIA request, \n\nIn issuing this letter, we recognize that it is coming long after the FOIA dispute took place. \nBecause it raises a legal question that may reoccur,  however,  this letter is intended to provide guidance to the\nrequester and public body. \n\n500 South Second Street,  Springfield,  Illinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Laura Lechowicz Felicione\n\nJuly 17,  2020\nPage 2\n\n2016,  the Medical Examiner' s Office responded by stating that if\ncopies of the records, \n\nthe cost would be $ 655. 00 pursuant\n\nto section 4- 7001 of the Counties Code\n\nwished to receive., \n\n55 ' ILCS 5/ 4- 7001 ( West 2016)),  which authorized a coroner' s office to charge $ 5. 00 per page\nfor transcripts of sworn testimony.  The Medical Examiner's Office stated that if\nwished to inspect the records,  he should contact its office to schedule a time for inspection; \nhowever,  he would not be permitted to photograph the records during the inspection. \ncontacted the Medical Examiner' s Office seeking clarification of the basis for prohibiting\nphotography during inspection.  On July 19,  2016,  the Medical Examiner's Office responded by\ntook photographs of the records,  it would assess the $ 5. 00 per page fee\nstating that if\nauthorized by section 4- 7001 of the Counties Code because photographs are the same as copies. \nOn July 26,  2016, \nMedical Examiner' s Office' s refusal to allow him to photograph the records during inspection\n\nsubmitted a Request for Review to this office contesting the\n\nwithout charge. \n\nOn August\n\n1,  2016,  this office sent a copy of the Request for Review to the\n\nMedical Examiner' s Office and asked it to respond to\n\nallegations.  On August 15, \n\n2016,  Legal Affairs for the Office of the Cook County Board President provided this office with\na written answer on behalf of the Medical Examiner' s Office.  On August 17,  2016,  this office • \nsent a copy of the Medical Examiner' s Office' s answer to\n2017. \n\nhe replied on July 25, \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\nit is exempt.\" \n5 ILCS\n140/ 1. 2 ( West 2016).  FOIA requires that \"[ e] ach public body shall make available to any person\nfor inspection or copying all public records,  except as otherwise provided in Sections 7 and 8. 5\nof this Act.\"  5 ILCS 140/ 3( a) ( West 2016). \" Copying\"  is defined in section 2( d)  of FOIA ( 5\nILCS 140/ 2( d) ( West 2016))  as \" the reproduction of any public record by means of any\nphotographic,  electronic,  mechanical or other. process,  device or means now known or hereafter\ndeveloped and available to the public body.\"  Section 3( b)  of FOIA ( 5 ILCS 140/ 3( b) ( West\n2016))  states: \" Subject to the fee provisions of Section 6 of this Act, each public body shall\npromptly provide,  to any person who submits a request,  a copy of any public record required to\nbe disclosed by subsection ( a)  of this Section[.]\" . \n\nSection 6( b)  of FOIA ( 5 ILCS 140/ 6( b) ( West 2016))  provides,  in pertinent part: \n\nExcept when a fee is otherwise fixed by statute,  each\n\npublic body may charge fees reasonably calculated to reimburse its\n\n\fMs.  Laura Lechowicz Felicione\n\nJuly 17,  2020\nPage 3\n\nactual cost for reproducing and certifying public records and for\nthe use,  by any person,  of the equipment of the public body to copy\nrecords.  No fees shall be charged for the first 50 pages of black and\nwhite,  letter or legal sized copies requested by a requester.  The fee\nfor black and white,  letter or legal sized copies shall not exceed 15\n\ncents per page. ( Emphasis added.) \n\nSection 4- 7001 of the Counties Code provides: \n\nCoroner' s fees.  The fees of the coroner' s office shall be as follows: \n\n1.  For a copy of a transcript of sworn testimony: $ 5. 00 per page. \n\n2.  For a copy of an autopsy report ( if not included in transcript): \n\n50. 00. \n\n3.  For a copy of the verdict of a coroner' s jury: $ 5. 00. \n\n4.  For a copy of a toxicology report: $ 25. 00. \n\n5.  For a print of or an electronic file containing a picture obtained\nby the coroner:  actual cost or $ 3. 00,  whichever is greater. \n\n6.  For each copy of miscellaneous reports,  including artist' s\ndrawings but not including police reports:  actual cost or $ 25. 00, \nwhichever is greater. \n\n7.  For a coroner' s or medical examiner'\n\ns permit\n\nto cremate a dead\n\nhuman body: $ 50. 00.  The coroner may waive,  at his or her\ndiscretion,  the permit\nfee if the coroner determines that the person\nis indigent and unable to pay the permit fee or under other special\n\ncircumstances. \n\nAll of which fees shall be certified by the court;  in the case\ninstitution,  the fees shall\n\nof inmates of any State charitable or penal\nbe paid by the operating department or commission,  out of the\nState Treasury.  The coroner shall file his or her claim in probate\nfor his or her fees and he or she shall render assistance to the\nState' s attorney in the collection of such fees out of the estate of the\n\n\fMs.  Laura Lechowicz Felicione\n\nJuly 17,  2020\nPage . 4\n\ndeceased.  In counties of less than 1, 000, 000 population,  the State' s\n\nattorney shall collect such fees out of the estate of the deceased. \n\nAll fees under this Section collected by or on behalf of the\ncoroner' s office shall be paid over to the county treasurer and\ndeposited into a special account\nthe special account shall be used solely for the purchase of\nelectronic and forensic identification equipment or other related\n\nin the county treasury.  Moneys in\n\nsupplies and the operating expenses of the coroner' s office. \n\nAlthough section 4- 7001 states that all coroner' s fees \" shall be certified by the\n\ncourt\"  and collected \" out of the estate of the deceased[,]\" \n\nthat statutory language pre -dates FOIA. \nSee,  e. g.,  Laws 1919,  p.  554, § 1.  The subsequent enactment of FOIA by the General Assembly, \nwith its specific reference to fees fixed by statute in section 6( b),  provides guidance on how to\ninterpret the applicability of the fees for coroner' s records in section 4- 7001 of the Counties\nCode.  See Mitsuuchi\n\nv.  City of Chicago,  125 Ill.  2d 489,  497 (.1988) (\" Legislativeenactments\n\nlight on the legislative intent of earlier enacted statutes[.]\"). \n\ncan certainly cast\nAssembly has amended this section of the Counties Code several times to increase the document\nfees charged by coroners,  most recently in 2010.  The legislative history of the latest amendment\nindicates that\n\nthe General Assembly intended to raise revenue for coroners'  offices: \" This is a\n\nThe General\n\nfee increase that they haven' t [ had in]  over 20 years and they' re just trying to bring in more\nrevenue like everybody else.\"  Remarks of Rep.  Phelps,  April 27,  2010,  House Debate on Senate\nBill No.  2529 ( which as Public Act 96- 1161,  effective July 21,  2010,  amended the fee provision\nin question),  at 26.  By amending section 4- 7001 to increase the fee for copies of coroners' \nrecords to fund the operations of the coroners'  offices,  it may be presumed that the General\nAssembly intended those fees to apply generally to all types of information requests.  See People\nv.  McChriston,  2014. IL 115310, ¶ 18,  4 N. E. 3d 29,  34 ( 2014) ( subsequent statutory amendments\nfor determining legislative intent);  see also Remarks of Rep.  Brady,  April 27,  2010, \nare sources\n\nHouse Debate on Senate Bill No.  2529,  at 27- 28 (\" What this particular Bill does,  specifically\ndeals with only the type of information request[ ed]  from a coroner' s office,  probably through a\ncomplex investigation,  and what I was very concerned with was that the funds would go directly\nto a line item within the coroner' s budget for specific operations of that office[.]\"). \n\nIn light of its stated fiscal purpose,  it would make little sense to construe the fee\n\nprovision in section 4- 7001 of the Counties Code as applying only when the records are\nproduced in the course of a probate action and the fee is certified by the court.  The purpose of\nthis fee provision would be defeated if the same records could be obtained by the decedent' s\nsurviving family members or the public through a FOIA request upon payment of the 15 cents\n\n\fMs.  Laura Lechowicz Felicione\n\nJuly 17,  2020\nPage 5\n\nper page fee contemplated by section 6( b)  of FOIA.  See Phoenix Bond &  Indemnity Co.  v. \nPappas,  194 Ill.  2d 99,  106 ( 2000) ( holding that a statute should not be construed in a way that\nwould defeat\n\nits purpose or yield an absurd or unjust result).  Consequently,  this office concludes\n\nthat the fee provision in section 4- 7001 of the Counties Code applies to copies of records\nprovided in response to FOIA requests submitted to a coroner or medical examiner' s office. \n\nTurning to the issue of photographing the inquest records,  in a case decided prior\n\nto the enactment of FOIA that was cited by Mr.  Costin in his Request\nAppellate Court held that the common law right to inspect records included the right to\nphotograph records.  People ex.  rel.  Gibson v.  Peller,  34 I11.  App.  2d 372 ( 1962). \nparents of students enrolled in a school district sought\nAt the time of inspection,  the parents brought a professional photographer to photograph the\nrecords.  The district refused to allow the records to be photographed.  The district asserted that\nthe parents \" have the right to look,  examine and inspect with the naked eye the public records\nand copy by hand these public records,  but they have no right to photograph\n34 Ill. App.  2d at 375.  The court disagreed stating: \n\nfor Review,  the Illinois\n\nthe district' s financial\n\nIn Peller, the\n\nto inspect\n\nrecords. \n\nthe records.\"  Peller, \n\nModern photography is accurate,  harmless,  noiseless,  and time\nsaving.  It does nothing more than capture that which is seen with\nthe naked eye.  Neither defendants nor the public can be harmed by\nthe reproduction of the records exactly as they exist.  The fact that\nmore modern methods of copying are devised should not lessen the\nbasic right given under the common law.  Peller,  34 Ill. App.  2d at\n375. \n\nIn its response to this office,  the Medical Examiner' s Office did not contest\nright to\nmake photographs during his inspection of the inquest files;  rather,  it asserted only that he would\nbe assessed the fee authorized by the Counties Code for any photographs taken of those records. \nThe Medical Examiner' s Office stated that there were. 38 pages of sworn testimony in the\ncoroner' s inquest\nof Andrew A. Kelly.  The Medical Examiner' s Office asserted that the $ 5. 00 fee per page of\nsworn testimony in section 4- 7001 of the Counties Code would applyto any photographs taken\nby\n\nfor the death of Thomas F.  Kelly and 93 pages of sworn testimony for the death\n\nduring his inspection of the records. \n\nIn this matter, \n\nseeks to photograph inquest files for which the Counties\n\nCodes establishes a fixed fee.  A public body may not charge a fee to inspect records;  however, \n\nis not merely seeking to inspect\n\nthe records but to reproduce them.  The court in\n\nPeller recognized that the right to photograph accompanied the right to inspect under common\nlaw.  The General Assembly has since enacted FOIA,  which provides the right to inspection or\ncopying of public records and includes the reproducing of records by photograph within the\n\n\fMs.  Laura Lechowicz Felicione\n\nJuly 17,  2020\nPage 6\n\ndefinition of \"copying\"  in section 2( d)  of FOIA.  In addition,  the General Assembly did notstate\nthat, the statutory fees for copies of public records shall not apply to photographs of those records\nunless expressly provided,  as it did in section 6( a)  of FOIA ( 5 ILCS 140/ 6( a) ( West 2016))  for\nrecords furnished in electronic format. \n\nSection 4- 7001 of the Counties Code does not distinguish between the format of\n\nthe copy or whether the copy is made by the requester or the Medical. Examiner' s Office when\nassessing the $ 5. 00 per page fee for copies.  Further,  unlike fees such as those in section 6( b)  of\nFOIA that are intended to allow a public body to recover its actual cost of reproducing the\nrecord,  the express purpose of the fees in section 4- 7001 of the Counties Code is to provide a\n\nfunding mechanism for a coroner' s office to obtain identification equipment and to cover its\noperating expenses related to death investigations.  Construing the fee provision in the Counties\nto generate his or her own copies by photographing coroner' s records\nCode to allow a requester\nwithout charge would defeat\n\nIndemnity Co., \n194 Ill. 2d at 106.  Accordingly,  under section 6( b)  of FOIA,  the Medical Examiner' s Office did\nnot improperly respond to Mr. Costin' s FOIA request by stating that it would assess a $ 5. 00 per\npage fee for any photographs taken of the inquest files. \n\nthe purpose of this provision.  See Phoenix Bond & \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  Please contact me at ( 217)  782- 9054, \nmhartman@atg. state. il.us,  or the Springfield address on the first page if you have questions. \nThis letter serves to close this file. \n\nVery truly yours, \n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n43174 f 6a fee proper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Historical inquest files from 1912 and 1914","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-43174/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly 17, 2020\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Laura Lechowicz Felicione\n\nSpecial Legal Counsel\n\nFreedom of Information Officer\n\nOffice of the Cook County Board President\n69 West Washington Boulevard, Suite 1415\n\n[street address redacted for site publication -- see original PDF]\nlaura. lechowicz@cookcountyil. gov\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 43174\n\nDear\n\nand Ms. Felicione: \n\nThis determination is issued pursuant\n\nto section 9. 5(f) of the Freedom of. \n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). 1 For the reasons that follow, the\nPublic Access Bureau concludes that the Cook County Medical Examiner's Office (Medical\nExaminer's Office) did not improperly respond to\n\nJune 26, 2016, FOIA request. \n\nOn June 26, 2016, \n\nsubmitted a FOIA request\n\nto the Medical\n\nExaminer's Office seeking to inspect the inquest files concerning the deaths of Mr. Thomas Kelly\nin 1912 and Mr. Andrew Kelly in 1914. \nExaminer's Office that he intended to take photographs while inspecting the records. On July 12, \n\ninformed the Medical\n\nIn his FOIA request, \n\nIn issuing this letter, we recognize that it is coming long after the FOIA dispute took place. \nBecause it raises a legal question that may reoccur, however, this letter is intended to provide guidance to the\nrequester and public body. \n\n2016, the Medical Examiner's Office responded by stating that if\ncopies of the records, \n\nthe cost would be $ 655. 00 pursuant\n\nto section 4- 7001 of the Counties Code\n\nwished to receive., \n\n55 ' ILCS 5/ 4- 7001 (West 2016)), which authorized a coroner's office to charge $ 5. 00 per page\nfor transcripts of sworn testimony. The Medical Examiner's Office stated that if\nwished to inspect the records, he should contact its office to schedule a time for inspection; \nhowever, he would not be permitted to photograph the records during the inspection. \ncontacted the Medical Examiner's Office seeking clarification of the basis for prohibiting\nphotography during inspection. On July 19, 2016, the Medical Examiner's Office responded by\ntook photographs of the records, it would assess the $ 5. 00 per page fee\nstating that if\nauthorized by section 4- 7001 of the Counties Code because photographs are the same as copies. \nOn July 26, 2016, \nMedical Examiner's Office's refusal to allow him to photograph the records during inspection\n\nsubmitted a Request for Review to this office contesting the\n\nwithout charge. \n\nOn August\n\n1, 2016, this office sent a copy of the Request for Review to the\n\nMedical Examiner's Office and asked it to respond to\n\nallegations. On August 15, \n\n2016, Legal Affairs for the Office of the Cook County Board President provided this office with\na written answer on behalf of the Medical Examiner's Office. On August 17, 2016, this office • \nsent a copy of the Medical Examiner's Office's answer to\n2017. \n\nhe replied on July 25, \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\nit is exempt.\" \n5 ILCS\n140/ 1. 2 (West 2016). FOIA requires that \"[ e] ach public body shall make available to any person\nfor inspection or copying all public records, except as otherwise provided in Sections 7 and 8. 5\nof this Act.\" 5 ILCS 140/ 3(a) (West 2016). \" Copying\" is defined in section 2(d) of FOIA (5\nILCS 140/ 2(d) (West 2016)) as \" the reproduction of any public record by means of any\nphotographic, electronic, mechanical or other. process, device or means now known or hereafter\ndeveloped and available to the public body.\" Section 3(b) of FOIA (5 ILCS 140/ 3(b) (West\n2016)) states: \" Subject to the fee provisions of Section 6 of this Act, each public body shall\npromptly provide, to any person who submits a request, a copy of any public record required to\n\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. (Emphasis added.) \n\nSection 4- 7001 of the Counties Code provides: \n\nCoroner's fees. The fees of the coroner's office shall be as follows: \n\n1. For a copy of a transcript of sworn testimony: $ 5. 00 per page. \n\n2. For a copy of an autopsy report (if not included in transcript): \n\n50. 00. \n\n3. For a copy of the verdict of a coroner's jury: $ 5. 00. \n\n4. For a copy of a toxicology report: $ 25. 00. \n\n5. For a print of or an electronic file containing a picture obtained\nby the coroner: actual cost or $ 3. 00, whichever is greater. \n\n6. For each copy of miscellaneous reports, including artist's\ndrawings but not including police reports: actual cost or $ 25. 00, \nwhichever is greater. \n\n7. For a coroner's or medical examiner's permit\n\nto cremate a dead\n\nhuman body: $ 50. 00. The coroner may waive, at his or her\ndiscretion, the permit\nfee if the coroner determines that the person\nis indigent and unable to pay the permit fee or under other special\n\ncircumstances. \n\nAll of which fees shall be certified by the court; in the case\ninstitution, the fees shall\n\nof inmates of any State charitable or penal\nbe paid by the operating department or commission, out of the\nState Treasury. The coroner shall file his or her claim in probate\nfor his or her fees and he or she shall render assistance to the\nState's attorney in the collection of such fees out of the estate of the\n\nMs. Laura Lechowicz Felicione\n\nJuly 17, 2020\nPage. 4\n\ndeceased. In counties of less than 1, 000, 000 population, the State's\n\nattorney shall collect such fees out of the estate of the deceased. \n\nAll fees under this Section collected by or on behalf of the\ncoroner's office shall be paid over to the county treasurer and\ndeposited into a special account\nthe special account shall be used solely for the purchase of\nelectronic and forensic identification equipment or other related\n\nin the county treasury. Moneys in\n\nsupplies and the operating expenses of the coroner's office. \n\nAlthough section 4- 7001 states that all coroner's fees \" shall be certified by the\n\ncourt\" and collected \" out of the estate of the deceased[,]\" \n\nthat statutory language pre -dates FOIA. \nSee, e. g., Laws 1919, p. 554, § 1. The subsequent enactment of FOIA by the General Assembly, \nwith its specific reference to fees fixed by statute in section 6(b), provides guidance on how to\ninterpret the applicability of the fees for coroner's records in section 4- 7001 of the Counties\nCode. See Mitsuuchi\n\nv. City of Chicago, 125 Ill. 2d 489, 497 (.1988) (\" Legislativeenactments\n\nlight on the legislative intent of earlier enacted statutes[.]\"). \n\ncan certainly cast\nAssembly has amended this section of the Counties Code several times to increase the document\nfees charged by coroners, most recently in 2010. The legislative history of the latest amendment\nindicates that\n\nthe General Assembly intended to raise revenue for coroners' offices: \" This is a\n\nThe General\n\nfee increase that they haven' t [ had in] over 20 years and they' re just trying to bring in more\nrevenue like everybody else.\" Remarks of Rep. Phelps, April 27, 2010, House Debate on Senate\nBill No. 2529 (which as Public Act 96- 1161, effective July 21, 2010, amended the fee provision\nin question), at 26. By amending section 4- 7001 to increase the fee for copies of coroners' \nrecords to fund the operations of the coroners' offices, it may be presumed that the General\nAssembly intended those fees to apply generally to all types of information requests. See People\nv. McChriston, 2014. IL 115310, ¶ 18, 4 N. E. 3d 29, 34 (2014) (subsequent statutory amendments\nfor determining legislative intent); see also Remarks of Rep. Brady, April 27, 2010, \nare sources\n\nHouse Debate on Senate Bill No. 2529, at 27- 28 (\" What this particular Bill does, specifically\ndeals with only the type of information request[ ed] from a coroner's office, probably through a\ncomplex investigation, and what I was very concerned with was that the funds would go directly\nto a line item within the coroner's budget for specific operations of that office[.]\"). \n\nIn light of its stated fiscal purpose, it would make little sense to construe the fee\n\nprovision in section 4- 7001 of the Counties Code as applying only when the records are\nproduced in the course of a probate action and the fee is certified by the court. The purpose of\nthis fee provision would be defeated if the same records could be obtained by the decedent's\n\nper page fee contemplated by section 6(b) of FOIA. See Phoenix Bond & Indemnity Co. v. \nPappas, 194 Ill. 2d 99, 106 (2000) (holding that a statute should not be construed in a way that\nwould defeat\n\nits purpose or yield an absurd or unjust result). Consequently, this office concludes\n\nthat the fee provision in section 4- 7001 of the Counties Code applies to copies of records\nprovided in response to FOIA requests submitted to a coroner or medical examiner's office. \n\nTurning to the issue of photographing the inquest records, in a case decided prior\n\nto the enactment of FOIA that was cited by Mr. Costin in his Request\nAppellate Court held that the common law right to inspect records included the right to\nphotograph records. People ex. rel. Gibson v. Peller, 34 I11. App. 2d 372 (1962). \nparents of students enrolled in a school district sought\nAt the time of inspection, the parents brought a professional photographer to photograph the\nrecords. The district refused to allow the records to be photographed. The district asserted that\nthe parents \" have the right to look, examine and inspect with the naked eye the public records\nand copy by hand these public records, but they have no right to photograph\n34 Ill. App. 2d at 375. The court disagreed stating: \n\nfor Review, the Illinois\n\nthe district's financial\n\nIn Peller, the\n\nto inspect\n\nrecords. \n\nthe records.\" Peller, \n\nModern photography is accurate, harmless, noiseless, and time\nsaving. It does nothing more than capture that which is seen with\nthe naked eye. Neither defendants nor the public can be harmed by\nthe reproduction of the records exactly as they exist. The fact that\nmore modern methods of copying are devised should not lessen the\nbasic right given under the common law. Peller, 34 Ill. App. 2d at\n375. \n\nIn its response to this office, the Medical Examiner's Office did not contest\nright to\nmake photographs during his inspection of the inquest files; rather, it asserted only that he would\nbe assessed the fee authorized by the Counties Code for any photographs taken of those records. \nThe Medical Examiner's Office stated that there were. 38 pages of sworn testimony in the\ncoroner's inquest\nof Andrew A. Kelly. The Medical Examiner's Office asserted that the $ 5. 00 fee per page of\nsworn testimony in section 4- 7001 of the Counties Code would applyto any photographs taken\nby\n\nfor the death of Thomas F. Kelly and 93 pages of sworn testimony for the death\n\nduring his inspection of the records. \n\nIn this matter, \n\nseeks to photograph inquest files for which the Counties\n\nCodes establishes a fixed fee. A public body may not charge a fee to inspect records; however, \n\nis not merely seeking to inspect\n\nthe records but to reproduce them. The court in\n\nPeller recognized that the right to photograph accompanied the right to inspect under common\nlaw. The General Assembly has since enacted FOIA, which provides the right to inspection or\n\ndefinition of \"copying\" in section 2(d) of FOIA. In addition, the General Assembly did notstate\nthat, the statutory fees for copies of public records shall not apply to photographs of those records\nunless expressly provided, as it did in section 6(a) of FOIA (5 ILCS 140/ 6(a) (West 2016)) for\nrecords furnished in electronic format. \n\nSection 4- 7001 of the Counties Code does not distinguish between the format of\n\nthe copy or whether the copy is made by the requester or the Medical. Examiner's Office when\nassessing the $ 5. 00 per page fee for copies. Further, unlike fees such as those in section 6(b) of\nFOIA that are intended to allow a public body to recover its actual cost of reproducing the\nrecord, the express purpose of the fees in section 4- 7001 of the Counties Code is to provide a\n\nfunding mechanism for a coroner's office to obtain identification equipment and to cover its\noperating expenses related to death investigations. Construing the fee provision in the Counties\nto generate his or her own copies by photographing coroner's records\nCode to allow a requester\nwithout charge would defeat\n\nIndemnity Co., \n194 Ill. 2d at 106. Accordingly, under section 6(b) of FOIA, the Medical Examiner's Office did\nnot improperly respond to Mr. Costin's FOIA request by stating that it would assess a $ 5. 00 per\npage fee for any photographs taken of the inquest files. \n\nthe purpose of this provision. See Phoenix Bond & \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at (217) 782- 9054, \nmhartman@atg. state. il.us, or the Springfield address on the first page if you have questions. \nThis letter serves to close this file. \n\nVery truly yours, \n\nMATT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n43174 f 6a fee proper co"}
{"id":884,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-01","case_number":null,"request_numbers":["44377"],"title":"Illinois State Board of Investment improperly redacted consultant report shared at open meeting","filename":"44377, issued February 1, 2017.pdf","rel_path":null,"word_count":4745,"summary":"The Illinois State Board of Investment partially denied a FOIA request for investment-related records, and the PAC determined that the Board failed to meet its burden of proof for certain claimed exemptions.","plain_summary":"A journalist requested nine categories of investment records from a public pension investment board, three of which he sought review of after the board denied or redacted them. The PAC found the board's refusal to answer a vague question about a specific investment did not violate FOIA, but that most of the board's trade-secret and privacy redactions to a consultant's report were improper given the report had already been shared at an open meeting, and that a private accounting firm's audit report did not qualify as an internal-audit record exempt from disclosure. The board was directed to release the improperly withheld and redacted records.","holding":"The source finds that (1) the Board's response to the second request did not violate FOIA; (2) for the fourth request, the Bureau did not address pages the Board agreed to release; (3) no final holding is stated for the ninth request (KPMG audit report) in the provided text.","legal_question":"Whether the Illinois State Board of Investment properly invoked FOIA exemptions to withhold investment-related reports and audit documents.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Illinois State Board of Investment","requesting_party":"Mr. Barry B. Burr (Pensions & Investments)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"investment records","subject_description":"The request sought various records and audit reports pertaining to the Board's real estate and other investment activities.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Internal-audits/44377%2C%20issued%20February%201%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["investment records","FOIA denial","audit report","burden of proof"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"|\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 1, 2017\n\nMr. Barry B. Burr\n\nEditorial Page Editor\nPensions & Investments |\n\n150 North Michigan Avenue, Floor 19\nChicago, Illinois 60618 |\nbburr@pionline.com\n\n|\nt\nVia electronic mail |\nt\n\nVia electronic mail\nMs. Tondalaya Lloyd\nInvestment Compliance Officer\nIllinois State Board of Investment\n[street address redacted for site publication -- see original PDF]\ntondalaya. lloyd@illinois. gov\"\nRE: FOIA Request for Review — 2016 PAC 44377\n\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n3\nDear Mr. Burr and Ms. Loyd: |\n|\nThis determindtion is issued pursuant to section)9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons explained below, the\nPublic Access Bureau concludes that the Illinois State Board of Investment (Board) improperly\nwithheld certain information responsive to the request made by Mr. Barry Burr on behalf of\nPensions & Investments.\n\nOn September'19, 2016, Mr. Burr submitted a FOIA request to the Board seeking\nnine records or categories of records pertaining to the Board's real estate and other investments.\nOn September 23, 2016, the Board partially denied Mr. Burr's Tequest. In his Request for\nReview, Mr. Burr sought review of three of the Board's responses. First, he challenged the\nBoard’ 's denial of his second request, for \"[dJetails about the North Dakota housing investing that\nthe board discussed at last Thursday’ 's morning [sic]? In which Clarion fund is that North Dakota\n\n500 South Second Street, Springfield, Illinois 62706 + (217) 782-1090 * TTY: (217) 785 -2771 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois, 60601 + (312) 814-3000 * TTY: (312) 814-3374 + Fax: (312) 814-3806\n1001 East Main, , Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (618) 529-6403 + Fax: (618) 529-6416\n\n|\n\nI\n\nl\n\nl\n\nMr. Barry Burr |\nMs. Tondalaya Lloyd\nFebruary 1, 2017 |\n|\n\n|\n\n|\n\nPage 2\n\ninvestment?” The Board responded that it is not required to answer questions posed by a FOIA\nTequester and asserted that it did not possess any responsive documents. The Board noted that\nMr. Burr might find relevant information in the September 15, 12016, Investment Policy\nCommittee meeting minutes, once they are ratified and made public. Second, regarding his\nfourth request, Mr. Burr sought review of the redactions to the!Courtland Partners, LTD. report\nunider section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g) (West 201 5 Supp.), as amended by Public\nAct 99-642, effective July 28, 2016). Third, regarding his ninth request, Mr. Burr challenged the\nBoard’ 's decision to withhold the KPMG audit report pursuant to section 7(1)(m) of FOIA (5\nILCS 140/7(1)(m) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28,\n\n2016). |\n\nOn October 14, 2016, the Public Access Bureau sent a copy of the Request for\nReview to the Board and asked it to provide a description of the measures it took to search for\nrecords responsive to Mr. Burt's second request, including the specifi c recordkeeping systems\nthat were searched and the individuals who were consulted. Further, we asked the Board to\nprovide the Public Access Bureau with un-redacted copies of records responsive to Mr. Burr's\nfourth and ninth requests and|to submit a detailed explanation of the factual and legal bases for\nthe applicability of the section 7(1)(g) and 7(1)(m) exemptions to the information that was\nwithheld. |\n\n|\nOn October 24, 2016, the Board furnished a written response and an un-redacted\ncopy of the Courtland Partners, LTD. report. On December 1, 2016, the Board provided an un-\nredacted copy of the KPMG audit report. On December 23, 2016, the Board provided a\n\nsupplemental response to the Public Access Bureau. Mr. Burr did not reply.\n\n| !\n; DETERMINATION |\n\n| |\nSecond Request: North Dakota Investment\n|\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2014) provides that “[a]ll records in\n\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nHowever, \"[a] request to inspect or copy must reasonably identify a public record[.]\" Chicago\n\nTribune Co. v. Department of, Financial and Professional Regulation, 2014 IL App (4th)\n\n130427, 433, 8 N.E.3d 11, 19) (2014). A FOIA request \"reasonably describes records if ‘the\nagency is able to determine precisely what records are being requested. \" Kowalczyk y.\nDepartment of Justice, 73 F. 3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement\n\nAdmin., 678 F.2d 315, 326 ©. C. Cir. 1982)). Public bodies aré not required to search beyond\nthe four corners of a FOIA request, nor are they required to divine the requester's intent. Manna\nv. United States Department of Justice, 106 F. Supp. 3d 16, 19\\(D.D.C. 2015).\n\n| ‘E-mail from Barty Burr, Editorial Page Editor, Pensions Investments, to William Atwood\n(September 19, 2016). |\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 3\n\nThe first part of Mr. Burr's second request sought \"[dletails about the North\nDakota housing investing that|the board discussed at last Thursday's morning [sic].\" Although\nnot framed as a question, seeking \"details\" about a topic does not reasonably identify a public\nrecord. Not only does the request fail to make clear the records that are being requested, the\nrequest requires the Board to interpret its records and determine what information could be\nconsidered a \"detail\" about the investment, a subjective exercise that is beyond the requirements\nin FOIA. |\n\n| The second part of Mr. Burr's second request asked \"[i]Jn which Clarion fund is\nthat North Dakota investment?\" This request is plainly a question rather than a request fora\nrecord. A public body is not required to answer questions in response to a FOTA request\n(Kenyon y. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989)); nor is a public body required to\ncreate new records in response to a FOIA request. Krohn v. Department of Justice, 628 F.2d\n195, 198 (D.C. Cir. 1980). |\n\nAccordingly, this office finds that the Board's response to Mr. Burr's second\nrequest did not violate FOIA.! Mr. Burr may wish to submit a revised FOIA request seeking\nspecific records maintained by the Board from which he could obtain the details about the North\nDakota housing investments that he seeks.\nt\n\nFourth Request: Courtland Partners, LTD. Report\n\nIn response to Mr. Burr's fourth request, the Board redacted information from ten\npages of the Courtland Partners, LTD. report (Courtland report) prepared by Courtland Partners,\nLTD., (Courtland) as trade secrets pursuant to section 7(1)(g) of FOIA. The Board also argued\nin its response to the Public Access Bureau that information on page four is exempt pursuant to\nboth section 7(1)(g) and section 7(1)(r) (5 ILCS 140/7(1)(r) (West 2015 Supp.), as amended by\nPublic Act 99-642, effective iy 28, 2016) of FOIA.\n\n‘ In its respons¢ to the Public Access Bureau, the Board indicated that it is willing\nto provide to Mr. Burr the information on pages two, four, ten, and 11 of the Courtland report's\nExecutive Summary. Accordingly, the Public Access Bureau will not address whether those\npages were properly withheld in the Board's response to Mr. Burr.\n\n' i\n\n. t\n\n' |\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 4\n\nSection 70)(g)\n\n\\\nt\n|\n1\n|\n'\ni\n|\n\nSection 7(1}(g) exempts from disclosure:\n\n(g) Trade secrets and commercial or fi nancial information\nobtained from! a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. |\n\n|\n\nThe information included under this exemption includes all\ntrade secrets and commercial or financial information obtained by\na public body, including a public pension fund,' from a private\nequity fund or a privately held company within|the investment\nportfolio of a private equity fund as a result of éither investing or\nevaluating a potential investment of public funds in a private\nequity fund. The exemption contained in this item does not apply\nto the aggregate financial performance information of a private\nequity fund, nor to the identity of the fund's managers or general\npartners. The exemption contained in this item does not apply to\nthe identity ofa privately held company within/the investment\nportfolio of a private equity fund, unless the disclosure of the\nidentity of a privately held company may cause competitive harm.\n\n|\n\nTrade secrets and commercial or financial information in the context of FOIA is \"confidential\nonly if disclosure would either inflict substantial competitive harm on the supplier of the\ninformation or impair the recipient agency's ability to induce people to submit similar\ninformation to it in the future.\" Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007,\n1013 (Ist Dist. 1994); see also BlueStar Energy Services, Inc. . Illinois Commerce Commission,\n374 Il. App. 3d 990, 995 (1st Dist. 2007). \"To show substantial competitive harm, the agency\nmust show by specific factual or evidentiary material that: (1) the person or entity from which\ninformation was obtained actually faces competition; and (2) substantial harm to a competitive\nposition would likely result from disclosure of the information i in the agency's records.'\" Cooper,\n266 Ill. App. 3d at 1013 (quoting Calhoun v. Lyng, 864 F.2d 34, 36 (Sth Cir. 1988)). \"Parties\nopposing disclosure need not demonstrate actual competitive harm; instead, they need only show\nactual competition and a likelihood of substantial competitive|injury in order to bring [that]\ncommercial information within the realm of confidentiality.\"\" New Hampshire Right to Life v.\n\nUnited States Department of Health & Human Services, 778 F .3d 43, 50 (1st Cir. 2015) (quoting\n\n[\n|\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 5\n\nPublic Citizen Health Research Group v. Food & Drug A dministration, 704 F.2d 1280, 1291\n(DIC. Cir, 1983).\n\nIn discussing the potential competitive harm that would result from disclosure of\nthe redacted sections of the Courtland report, the Board addressed the competitive interests of (1)\n\nCourtland, (2) the funds mentioned in the report, and (3) itself. | Courtland is a consultant that the\nBoard pays for investment advice, which includes researching funds and recommending funds to\nthe Board for consideration of future investment. The Board paid for the Courtland report,\n\nwhich contains information provided by Courtland as well as information Courtland obtained\nfrom private equity funds. The Board confirmed in an e-mail to an Assistant Attorney General in\nthe Public Access Bureau that the Courtland report was presented i in full at the September 15,\n\n2016, Investment Policy Committee meeting. The publically available minutes of the meeting\n\nindicate that a representative from Courtland led the discussion! of the report.” The meeting was\nopen to the public and in addition to the Board's Investment Policy Committee members, Board\nmembers, and staff, members of the public were present, including Mr. Burr and a representative\n\nfrom Financial News. |\n' |\n\nThe Board asserted that Courtland could be harmed by disclosure of the\ninformation on page five of the report. The Board has not argued directly that the Courtland\nreport was furnished under a claim that it contained proprietary, privileged or confidential\n\ninformation, but the Board contended that information Provided by Courtland is proprietary.\n\n|\n\nIn Cooper, the Illinois Appellate Court considered whether a list of vendors of\nlottery tickets and a \"media plan developed by Bozell Inc. (the ‘Bozell Plan’) to advertise and\npromote the Illinois State Lottery\" were exempt from disclosure pursuant to section 7(1)(g).\nCooper, 266 Ill. App. 3d at 1010. The Illinois Department of the Lottery contended that\ndisclosure of the Bozell Plan would cause competitive harm to Bozell. Cooper, 266 Ill. App. 3d\n\nat 1013. The court, however, concluded that \"to the extent that! [the Department of the Lottery]\nis reluctant to release the disputed material on Bozell's behalf rather than its own behalf, the\nexemption on which it relies is inapplicable. * * * [T]he Bozell! ‘Plan, commissioned and paid for\nby [the Department of the Lottery], is not the type of confi dential business information that\nsection 7(1)(g) exempts.\" Cooper, 266 Ill. App. 3d at 1013. The court further explained that the\n\nDepartment:\n\nassumes that ‘Bozell has a proprietary interest in ithe ideas and\nrecommendations it developed,’ when, in fact, if anyone has a\n‘proprietary’ interest in the Bozell plan, it is the [Department of the\nLottery] who commissioned and paid for the plan. Unlike the\nusual 7(1)(g) case, where a third party's trade secrets are submitted\nin the course of bidding on a government proj ect or in response to\n\"Investment Policy Committee, Meeting, September 15, sb Minutes 3.\n\n| ;\n\n|\n|\n[\ni\n|\n\n\nMr. Barry Burr !\nMs. Tondalaya Lloyd\nFebruary 1, 2017 |\nPage 6 |\n|\n|\n\nan agency's investigation, the ‘business strategies and information'\n* * * are those of [the Department of the Lottery] and not Bozell.\nCooper, 266 ib. App. 3d at 1014.\n\nCourtland created the Courtland report at the request of the Board. Thus, the\nreport is proprietary information of the Board rather than of Courtland and the information on\npage five may not be withheld on the basis of Courtland's interests pursuant to section 7(1)(g) of\nFOIA. See Cooper, 266 Ill. App. 3d at 1013-14. Moreover, the Board's arguments regarding\nany potential harm to Courtland are conclusory, stating only that \"Courtland faces competition\nfor its consulting services, which include researching funds and recommending such funds to\n[the Board] for consideration of future investment\" and that the pipeline of investments that\nCourtland i is monitoring is \"proprietary and disclosure would cause competitive harm to\"\nCourtland and \"would impair,its competitive position.\" 3 Not only is the competitive harm\nargument unsupported by facts, it is further diminished by the Board! 's confirmation that the\nreport was presented in full at the September 15, 2016, meeting. A review of the publically\navailable minutes from the meeting confirms that a representative from Courtland presented the\nreport during an open meeting. See General Electric Co. v. United States Nuclear Regulatory\nCammission, 750 F.2d 1394, 1403 (7th Cir. 1984) (noting that the fact that some of the\ninformation at issue was revealed during congressional hearings undercuts a finding that the third\nparty could be harmed severely by the record's further disclosure). Were there a serious concern\nabout competitive harm resulting from disclosure of the information on page five, Courtland\n\nlikely would have taken precautions before sharing that information with members of the press\n\nand the general public. | |\n\nThe Board also contended that its own competitive interests could be harmed by\ndisclosure of information on pages three, four, and five, and pages eight, 12, and 13 of the\nExecutive Summary. Regarding the redactions on page three of the Courtland report, the Board\nexplained that the redacted information included \"reference to specific pending investments as\nwell as future investment plans which are confidential and its disclosure would cause\ncompetitive harm to [the Board]. \"A comparison of the disclosures on the Board's website to\nthe redacted information reveals that the investments that were: withheld on page three are no\nlonger pending.» The Board confirmed for an Assistant Attorney General in the Public Access\n\nBureau that once the investments are made, the redacted information i is no longer confidential.\n\n|\n| | |\n3Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 3 (October 24, 2016). |\n\n|\n‘Letter from chs Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 3 (October 24, 2016). |\n\n5See Illinois State Board of Investment, Reporting and Disclosures,\nhttps://www. illinois.gov/isbi/Pages/Reporting.aspx (last visited February 1, 2017).\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017 '\nPage 7 ;\nt\ni\nAccordingly, the Board no longer has a valid claim of confidentiality over the information on\npage three and should release the information to Mr. Burr.\n\nWith respect to pages four and five, and pages eight, 12, and 13 of the Executive\nSummary, an analysis of a public body's interests in the trade secret context begins with a\ndetermination of whether disclosure of the information would \"make it more difficult for the\nagency to induce people to submit similar information in the future.\" BlueStar Energy Services,\nInc., 374 Ul. App. 3d at 995; see also Cooper, 266 Ill. App. 3dlat 1013. Nowhere in its response\nto|the Public Access Bureau has the Board argued that disclosure of the information in the\nCourtland report would make it difficult for it to obtain similar consultant reports in the future.\nInjany event, such an argument would strain credulity, as the report was disclosed by Courtland\nitself at the open meeting of the Board's Investment Policy Committee, suggesting that Courtland\n\nhad no objection to the disclosure of the information in that setting. Given that the disclosure\n\nwas made to members of the public, including members of the press, it is reasonable to expect\nthat the disclosure at an open meeting could lead to a wider dissemination of the information in\n\nthe report. ;\n\nThe Board also repeatedly asserted that it would suffer competitive harm from\ndisclosure of the redacted information i in the Courtland report.| In addition to the two-part test for\ntrade secret confidentiality articulated by the courts in Cooper|and BlueStar Energy Services, that\ninlorder to be exempt, disclosure would have to (1) \"either inflict substantial competitive harm\non the supplier of the information or [(2)] impair the recipient agency's ability to induce people\nto|submit similar information to it in the future\" (Cooper, 266 'Ill. App. 3d at 1013), some courts\nhave recognized that there might be other governmental interests protected by the trade secret\nexemption to FOIA. See Critical Mass Energy Project v. Nuclear Regulatory Commission, 975\nF, 2d 871, 879 (D.C. Cir. 1992); 9 to 5 Organization v. Board of Governors of the Federal\nReserve, 721 F.2d 1 (1st Cir.'1983). A public body's claim that it would face competitive harm\nfrom disclosure of a trade secret is an interest that courts may consider. See News Group Boston,\nIne. vy. National Railroad Passenger Corp., 799 F. Supp. 1264, 1268-69 (D. Mass. 1992)\n(analyzing Amtrak's claim that its interest in its ability to compete in the marketplace would be\n\nharmed by disclosure of a certain record). |\n|\n\nLike the standard for establishing competitive harm to the suppliers of trade\nsecrets, to meet its burden under section 7(1)(g), the Board must demonstrate by specific facts\nand evidence that it faces actual competition and that disclosure would result in a likelihood of\nsubstantial competitive harm, See Cooper, 266 Ill. App. 3d at'1013; New Hampshire Right to\nLife, 778 F.3d at 50; News Group Boston, Inc., 799 F. Supp. at 1268-69. For the redacted\ninformation regarding pending real estate sales on page four, the Board contended that \"[pJublic\ndisclosure of future specific disposition plans would harm ime Board's] ability to retain\n\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\n\nFebruary 1, 2017\n\nPage 8\n\nmaximum negotiating power and contro} over the sale process: 6 Regarding the withheld\ninformation on page five, which included details about potential investments, the Board argued\nthat it \"seeks to make the best investments in funds that are frequently capped and\noversubscribed. Information made public regarding potential [Board] investments would hurt\n[the Board's} ability to invest in these capped funds[. ]\"” For the fund information on pages eight,\n12, and 13 of the Executive Summary, the Board asserted that the redacted information\n\n'reflect[s] current investment strategies paid for by the Board and are therefore proprietary trade\nsecrets that could cause competitive harm to [the Board]. ]\"* These explanations are conclusory\nand are unsupported by facts or evidence that demonstrate how disclosure of the information\nwould result in substantial harm to the Board. In particular, the Board failed to explain what\ncompetition it faces for its real estate dispositions or its investments, Further, its contentions\nregarding competitive harm are vague and do not detail how harm would arise or how substantial\nthe harm would be. Moreover, the Board did not address howlits likelihood of substantial injury\nis affected by the fact that it previously disclosed the information during the Investment Policy\nCommittee meeting. As noted above, it seems likely that any claim of harm would be\ndiminished t by the partial public disclosure. In sum, the Board has failed to demonstrate by clear\nand convincing evidence that the redacted information on pages four and five, and pages eight,\n12, and 13 of the Executive Summary should be withheld on the basis of the potential for\n\ncompetitive harm to its own interests.\n\nThe remaining information in the Courtland report that the Board claims is\nexempt under 7(1)(g) pertains to specific fund information on pages eight, 12, and 13 of the\nExecutive Summary. In its supplemental response to this office, the Board explained that the\nsource of the information on these pages was the fund managers, who then provided the\ninformation to Courtland. Page eight of the Executive Summary contains information on the\nproportions of public equity, private equity, public debt, and private debt within each of the\nfunds in the Board's portfolio. In its response, the Board indicated that it is willing to disclose\nthe names of the funds, but it asserted that the remaining information could cause competitive\nharm to the funds. The information on page eight of the Executive Summary falls within the\nplain language of section 7(1)(g) because it constitutes \"fi nancial information obtained by a\npublic body * * * from a private equity fund[,]\" albeit indirectly, as a result of the public body\ninvesting in the funds. See Ill. Att'y Gen. Req. Rev. Ltr. 9147; issued May 1, 2012, at 6 (finding,\nwithout consideration of competitive harm to the equity fundslat issue, that fair market value\nback- -up information from fund managers falls within the 70S) exemption). Accordingly, the\n\n|\n\n‘Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\n\nAssistant Attomey General, at 3 (October 24, 2016). 1\n|\n| TLetter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAgsistant Attorney General, at 3 (October 24, 2016).\n\n|\n5Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 4 (October 24, 2016).\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 9\n\nPublic Access Bureau conclutles that the Board did not violate|FOIA by withholding the equity\nand debt information on page eight of the Executive Summary!\n\n. |\n| For pages 12 and13 of the Executive Summary,} ithe Board indicated that it is\n\nwilling to provide all information except for the leverage ratios. However, the Board previously\ndisclosed the leverage ratios in its response to Mr. Burr, redacting only the fund names. As the\n\nBoard is no longer asserting that section 7(1)(g) exempts from disclosure the names of the funds\nand because it has previously disclosed the leverage ratios, the Board should release to Mr. Burr\n\npages 12 and 13 in full. ! 1\n\n|\n! 1\nSection 7(1)(r) |\n|\n\n|\n\nIn its response to the Public Access Bureau, the! Board asserted for the first time\nthat the real estate investment information on page four of the Courtland report is exempt under\n7) as information regarding areal estate sale. Section 7) of FOIA exempts from\ninspection and copying \"records, documents, and information relating to real estate purchase\nnegotiations until those negotiations have been completed or otherwise terminated. * * * The\nrecords, documents and information relating to a real estate sale shall be exempt until a sale is\nconsummated. \" | !\n\n|\nIn its supplemental response, the Board clarified that only two of the planned\ndispositions listed on page four were still pending. The names|of the assets qualify as\n“information” relating to a real estate sale and therefore fall within the scope of section 7(1)(r).\nHowever, as described above, the Courtland report was shared in full at the September 15, 2016,\n\n|\n\nmeeting of the Board's Investment Policy Committee. !\n\n|\nA public body|may waive the right to withhold records under FOIA if it has\nvoluntarily disclosed the same records on a previous occasion. | Lieber v. Board of Trustees of\nSouthern Illinois University, | 176 Ill. 2d 401, 412-13 (1997). This \"waiver rule must not be\nmechanically applied whenever there is disclosure of information but, rather, requires\nconsideration of the circumstances related to the disclosure, including the purpose and extent of\nthe disclosure as well as the confidentiality surrounding the disclosure.\" Chicago Alliance for\nNeighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202 (Ist Dist. 2004). In Chicago\nAlliance, the court concluded! that the City did not waive the right to redact the names and\naddresses of people who attended community meetings to prornote neighborhood safety because\nit had disclosed that information on a confidential basis to a public policy research organization\nmonitoring and evaluating the City's alternative policing strategies. Chicago Alliance for\nNeighborhood Safety, 348 Ill: App. 3d at 203. The court emphasized that the disclosure \"was\nmade for consultation purposes and limited to a single entity which treated the names and\naddresses as confidential.\" Chicago Alliance for Neighborhood Safety, 348 Ill. App. 3d at 202.\n\nI\n\n|\n|\n|\n\n\nMr. Barry Burr\nMs. Tondalaya Lloyd |\nFebruary 1, 2017 |\nPage 10 |\n\nIn contrast, the information on page four of the|Courtland Report was disclosed\nduring an open meeting in the presence of members of the public and the media, including the\nrequester. The Board had no reasonable expectation that information disclosed in such a public\nsetting would be maintained confidentially or that its dissemination would be limited in any\nmanner. Accordingly, the Board waived the assertion that the information i is exempt from\ndisclosure pursuant to section 7(1)(r) of FOIA. |\n\n|\n\nNinth Request: KPMG Audit Report\n\n|\nThe Board withheld in full the document responsive to Mr. Burr's ninth request,\nreferred to in the request as the \"KPMG audit report,\" pursuant to section 7(1)(m), which\nexempts from disclosure: | |\n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject to\ndiscovery in litigation, and * * * materials prepared or compiled\nwith respect to internal audits of public bodies, (Emphasis\nadded.)\n\nThe Board contended that the report was created by the Board's auditor\n\nspecifically for and with respect to the Board's upcoming internal audit, and was therefore\nexempt under section 7(1)(m). However, the report in question was prepared for an audit to be\nconducted by KPMG, a private accounting firm. The Public Access Bureau has previously\ndetermined that audits prepared by private firms do not constitute materials prepared or compiled\n\nwith respect to internal audits of public bodies. See Ill Att'y Gen. Req. Rev. Ltr. 17844, issued\nApril 11, 2012 (\"[a]!though the] portion of the audit report [at issue] may pertain to ‘internal\n\ncontrol, that does not mean that it is an internal audit. \"); IL. Att! y Gen. Req. Rev. Ltr. 14434,\nissued September 6, 2011 (distinguishing an internal audit as one prepared by an organization's\npersonnel from an independent audit, which is prepared by anloutside person or firm).\nAccordingly, we conclude that that the Board has not sustained its burden of demonstrating by\nclear and convincing evidence that the record in question is exempt from disclosure under\n\nsection 7(1)(m). |\n|\n|\n| In accordance with. the conclusions expressed in this letter, this office requests\nthat the Board provide Mr. Burr with copies of the records determined not to be exempt from\ndisclosure. The records to be disclosed include the Courtland report, with redactions only to the\ndebt and equity information on page eight of the Executive Summary, in response to Mr. Burr's\n\nfourth request, and the KPMG audit report in response to Mr. eum s ninth request.\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017\nPage 11\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact'me at the Springfield address on the first page of this letter.\n\nVery truly yours, |\n\nLAURA S. HARTER\nAssistant Attorney General\nPublic Access Bureau\n\n|\n44377 f 7(1)(g) improper proper 7(1)(r) improper 7(1)(m) imptoper sa\n\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A journalist requested investment records from the Illinois State Board of Investment. The Board partially denied the request, and the Attorney General's office reviewed three specific requests. It found that the Board's response to the request for details about a North Dakota investment did not violate FOIA because the request did not reasonably identify a public record. For the Courtland Partners report, the Board indicated it would release certain pages, so the Bureau did not address whether those pages were properly withheld. Regarding the KPMG audit report, the Board provided an un-redacted copy to the Bureau, but the source does not state the Bureau's final determination on that request.","card_headline":"Audit reports on a board's real estate and investment activities","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-44377/","full_text":"|\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nFebruary 1, 2017\n\nMr. Barry B. Burr\n\nEditorial Page Editor\nPensions & Investments |\n\n150 North Michigan Avenue, Floor 19\nChicago, Illinois 60618 |\nbburr@pionline.com\n\n|\nt\nVia electronic mail |\nt\n\nVia electronic mail\nMs. Tondalaya Lloyd\nInvestment Compliance Officer\nIllinois State Board of Investment\n[street address redacted for site publication -- see original PDF]\ntondalaya. lloyd@illinois. gov\"\nRE: FOIA Request for Review — 2016 PAC 44377\n\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n|\n3\nDear Mr. Burr and Ms. Loyd: |\n|\nThis determindtion is issued pursuant to section)9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2014)). For the reasons explained below, the\nPublic Access Bureau concludes that the Illinois State Board of Investment (Board) improperly\nwithheld certain information responsive to the request made by Mr. Barry Burr on behalf of\nPensions & Investments.\n\nOn September'19, 2016, Mr. Burr submitted a FOIA request to the Board seeking\nnine records or categories of records pertaining to the Board's real estate and other investments.\nOn September 23, 2016, the Board partially denied Mr. Burr's Tequest. In his Request for\nReview, Mr. Burr sought review of three of the Board's responses. First, he challenged the\nBoard’ 's denial of his second request, for \"[dJetails about the North Dakota housing investing that\nthe board discussed at last Thursday’ 's morning [sic]? In which Clarion fund is that North Dakota\n\n|\n\nI\n\nl\n\nl\n\nMr. Barry Burr |\nMs. Tondalaya Lloyd\nFebruary 1, 2017 |\n|\n\n|\n\n|\n\nPage 2\n\ninvestment?” The Board responded that it is not required to answer questions posed by a FOIA\nTequester and asserted that it did not possess any responsive documents. The Board noted that\nMr. Burr might find relevant information in the September 15, 12016, Investment Policy\nCommittee meeting minutes, once they are ratified and made public. Second, regarding his\nfourth request, Mr. Burr sought review of the redactions to the!Courtland Partners, LTD. report\nunider section 7(1)(g) of FOIA (5 ILCS 140/7(1)(g) (West 201 5 Supp.), as amended by Public\nAct 99-642, effective July 28, 2016). Third, regarding his ninth request, Mr. Burr challenged the\nBoard’ 's decision to withhold the KPMG audit report pursuant to section 7(1)(m) of FOIA (5\nILCS 140/7(1)(m) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28,\n\n2016). |\n\nOn October 14, 2016, the Public Access Bureau sent a copy of the Request for\nReview to the Board and asked it to provide a description of the measures it took to search for\nrecords responsive to Mr. Burt's second request, including the specifi c recordkeeping systems\nthat were searched and the individuals who were consulted. Further, we asked the Board to\nprovide the Public Access Bureau with un-redacted copies of records responsive to Mr. Burr's\nfourth and ninth requests and|to submit a detailed explanation of the factual and legal bases for\nthe applicability of the section 7(1)(g) and 7(1)(m) exemptions to the information that was\nwithheld. |\n\n|\nOn October 24, 2016, the Board furnished a written response and an un-redacted\ncopy of the Courtland Partners, LTD. report. On December 1, 2016, the Board provided an un-\nredacted copy of the KPMG audit report. On December 23, 2016, the Board provided a\n\nsupplemental response to the Public Access Bureau. Mr. Burr did not reply.\n\n| !\n; DETERMINATION |\n\n| |\nSecond Request: North Dakota Investment\n|\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2014) provides that “[a]ll records in\n\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"\nHowever, \"[a] request to inspect or copy must reasonably identify a public record[.]\" Chicago\n\nTribune Co. v. Department of, Financial and Professional Regulation, 2014 IL App (4th)\n\n130427, 433, 8 N.E.3d 11, 19) (2014). A FOIA request \"reasonably describes records if ‘the\nagency is able to determine precisely what records are being requested. \" Kowalczyk y.\nDepartment of Justice, 73 F. 3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement\n\nAdmin., 678 F.2d 315, 326 ©. C. Cir. 1982)). Public bodies aré not required to search beyond\nthe four corners of a FOIA request, nor are they required to divine the requester's intent. Manna\n\nThe first part of Mr. Burr's second request sought \"[dletails about the North\nDakota housing investing that|the board discussed at last Thursday's morning [sic].\" Although\nnot framed as a question, seeking \"details\" about a topic does not reasonably identify a public\nrecord. Not only does the request fail to make clear the records that are being requested, the\nrequest requires the Board to interpret its records and determine what information could be\nconsidered a \"detail\" about the investment, a subjective exercise that is beyond the requirements\nin FOIA. |\n\n| The second part of Mr. Burr's second request asked \"[i]Jn which Clarion fund is\nthat North Dakota investment?\" This request is plainly a question rather than a request fora\nrecord. A public body is not required to answer questions in response to a FOTA request\n(Kenyon y. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989)); nor is a public body required to\ncreate new records in response to a FOIA request. Krohn v. Department of Justice, 628 F.2d\n195, 198 (D.C. Cir. 1980). |\n\nAccordingly, this office finds that the Board's response to Mr. Burr's second\nrequest did not violate FOIA.! Mr. Burr may wish to submit a revised FOIA request seeking\nspecific records maintained by the Board from which he could obtain the details about the North\nDakota housing investments that he seeks.\nt\n\nFourth Request: Courtland Partners, LTD. Report\n\nIn response to Mr. Burr's fourth request, the Board redacted information from ten\npages of the Courtland Partners, LTD. report (Courtland report) prepared by Courtland Partners,\nLTD., (Courtland) as trade secrets pursuant to section 7(1)(g) of FOIA. The Board also argued\nin its response to the Public Access Bureau that information on page four is exempt pursuant to\nboth section 7(1)(g) and section 7(1)(r) (5 ILCS 140/7(1)(r) (West 2015 Supp.), as amended by\nPublic Act 99-642, effective iy 28, 2016) of FOIA.\n\n‘ In its respons¢ to the Public Access Bureau, the Board indicated that it is willing\nto provide to Mr. Burr the information on pages two, four, ten, and 11 of the Courtland report's\nExecutive Summary. Accordingly, the Public Access Bureau will not address whether those\n\nSection 70)(g)\n\n\\\nt\n|\n1\n|\n'\ni\n|\n\nSection 7(1}(g) exempts from disclosure:\n\n(g) Trade secrets and commercial or fi nancial information\nobtained from! a person or business where the trade secrets or\ncommercial or financial information are furnished under a claim\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. |\n\n|\n\nThe information included under this exemption includes all\ntrade secrets and commercial or financial information obtained by\na public body, including a public pension fund,' from a private\nequity fund or a privately held company within|the investment\nportfolio of a private equity fund as a result of éither investing or\nevaluating a potential investment of public funds in a private\nequity fund. The exemption contained in this item does not apply\nto the aggregate financial performance information of a private\nequity fund, nor to the identity of the fund's managers or general\npartners. The exemption contained in this item does not apply to\nthe identity ofa privately held company within/the investment\nportfolio of a private equity fund, unless the disclosure of the\nidentity of a privately held company may cause competitive harm.\n\n|\n\nTrade secrets and commercial or financial information in the context of FOIA is \"confidential\nonly if disclosure would either inflict substantial competitive harm on the supplier of the\ninformation or impair the recipient agency's ability to induce people to submit similar\ninformation to it in the future.\" Cooper v. Department of the Lottery, 266 Ill. App. 3d 1007,\n1013 (Ist Dist. 1994); see also BlueStar Energy Services, Inc.. Illinois Commerce Commission,\n374 Il. App. 3d 990, 995 (1st Dist. 2007). \"To show substantial competitive harm, the agency\nmust show by specific factual or evidentiary material that: (1) the person or entity from which\ninformation was obtained actually faces competition; and (2) substantial harm to a competitive\nposition would likely result from disclosure of the information i in the agency's records.'\" Cooper,\n266 Ill. App. 3d at 1013 (quoting Calhoun v. Lyng, 864 F.2d 34, 36 (Sth Cir. 1988)). \"Parties\nopposing disclosure need not demonstrate actual competitive harm; instead, they need only show\nactual competition and a likelihood of substantial competitive|injury in order to bring [that]\ncommercial information within the realm of confidentiality.\"\" New Hampshire Right to Life v.\n\nUnited States Department of Health & Human Services, 778 F.3d 43, 50 (1st Cir. 2015) (quoting\n\nPublic Citizen Health Research Group v. Food & Drug A dministration, 704 F.2d 1280, 1291\n(DIC. Cir, 1983).\n\nIn discussing the potential competitive harm that would result from disclosure of\nthe redacted sections of the Courtland report, the Board addressed the competitive interests of (1)\n\nCourtland, (2) the funds mentioned in the report, and (3) itself. | Courtland is a consultant that the\nBoard pays for investment advice, which includes researching funds and recommending funds to\nthe Board for consideration of future investment. The Board paid for the Courtland report,\n\nwhich contains information provided by Courtland as well as information Courtland obtained\nfrom private equity funds. The Board confirmed in an e-mail to an Assistant Attorney General in\nthe Public Access Bureau that the Courtland report was presented i in full at the September 15,\n\n2016, Investment Policy Committee meeting. The publically available minutes of the meeting\n\nindicate that a representative from Courtland led the discussion! of the report.” The meeting was\nopen to the public and in addition to the Board's Investment Policy Committee members, Board\nmembers, and staff, members of the public were present, including Mr. Burr and a representative\n\nfrom Financial News. |\n' |\n\nThe Board asserted that Courtland could be harmed by disclosure of the\ninformation on page five of the report. The Board has not argued directly that the Courtland\nreport was furnished under a claim that it contained proprietary, privileged or confidential\n\ninformation, but the Board contended that information Provided by Courtland is proprietary.\n\n|\n\nIn Cooper, the Illinois Appellate Court considered whether a list of vendors of\nlottery tickets and a \"media plan developed by Bozell Inc. (the ‘Bozell Plan’) to advertise and\npromote the Illinois State Lottery\" were exempt from disclosure pursuant to section 7(1)(g).\nCooper, 266 Ill. App. 3d at 1010. The Illinois Department of the Lottery contended that\ndisclosure of the Bozell Plan would cause competitive harm to Bozell. Cooper, 266 Ill. App. 3d\n\nat 1013. The court, however, concluded that \"to the extent that! [the Department of the Lottery]\nis reluctant to release the disputed material on Bozell's behalf rather than its own behalf, the\nexemption on which it relies is inapplicable. * * * [T]he Bozell! ‘Plan, commissioned and paid for\nby [the Department of the Lottery], is not the type of confi dential business information that\nsection 7(1)(g) exempts.\" Cooper, 266 Ill. App. 3d at 1013. The court further explained that the\n\nDepartment:\n\nassumes that ‘Bozell has a proprietary interest in ithe ideas and\nrecommendations it developed,’ when, in fact, if anyone has a\n‘proprietary’ interest in the Bozell plan, it is the [Department of the\nLottery] who commissioned and paid for the plan. Unlike the\nusual 7(1)(g) case, where a third party's trade secrets are submitted\nin the course of bidding on a government proj ect or in response to\n\"Investment Policy Committee, Meeting, September 15, sb Minutes 3.\n\n|;\n\n|\n|\n[\ni\n|\n\nMr. Barry Burr !\nMs. Tondalaya Lloyd\nFebruary 1, 2017 |\nPage 6 |\n|\n|\n\nan agency's investigation, the ‘business strategies and information'\n* * * are those of [the Department of the Lottery] and not Bozell.\nCooper, 266 ib. App. 3d at 1014.\n\nCourtland created the Courtland report at the request of the Board. Thus, the\nreport is proprietary information of the Board rather than of Courtland and the information on\npage five may not be withheld on the basis of Courtland's interests pursuant to section 7(1)(g) of\nFOIA. See Cooper, 266 Ill. App. 3d at 1013-14. Moreover, the Board's arguments regarding\nany potential harm to Courtland are conclusory, stating only that \"Courtland faces competition\nfor its consulting services, which include researching funds and recommending such funds to\n[the Board] for consideration of future investment\" and that the pipeline of investments that\nCourtland i is monitoring is \"proprietary and disclosure would cause competitive harm to\"\nCourtland and \"would impair,its competitive position.\" 3 Not only is the competitive harm\nargument unsupported by facts, it is further diminished by the Board! 's confirmation that the\nreport was presented in full at the September 15, 2016, meeting. A review of the publically\navailable minutes from the meeting confirms that a representative from Courtland presented the\nreport during an open meeting. See General Electric Co. v. United States Nuclear Regulatory\nCammission, 750 F.2d 1394, 1403 (7th Cir. 1984) (noting that the fact that some of the\ninformation at issue was revealed during congressional hearings undercuts a finding that the third\nparty could be harmed severely by the record's further disclosure). Were there a serious concern\nabout competitive harm resulting from disclosure of the information on page five, Courtland\n\nlikely would have taken precautions before sharing that information with members of the press\n\nand the general public. | |\n\nThe Board also contended that its own competitive interests could be harmed by\ndisclosure of information on pages three, four, and five, and pages eight, 12, and 13 of the\nExecutive Summary. Regarding the redactions on page three of the Courtland report, the Board\nexplained that the redacted information included \"reference to specific pending investments as\nwell as future investment plans which are confidential and its disclosure would cause\ncompetitive harm to [the Board]. \"A comparison of the disclosures on the Board's website to\nthe redacted information reveals that the investments that were: withheld on page three are no\nlonger pending.» The Board confirmed for an Assistant Attorney General in the Public Access\n\nBureau that once the investments are made, the redacted information i is no longer confidential.\n\n|\n| | |\n3 Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 3 (October 24, 2016). |\n\n|\n‘Letter from chs Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAssistant Attorney General, at 3 (October 24, 2016). |\n\n5 See Illinois State Board of Investment, Reporting and Disclosures,\nhttps://www. illinois.gov/isbi/Pages/Reporting.aspx (last visited February 1, 2017).\n\nMr. Barry Burr\n\nMs. Tondalaya Lloyd\nFebruary 1, 2017 '\nPage 7;\nt\ni\nAccordingly, the Board no longer has a valid claim of confidentiality over the information on\npage three and should release the information to Mr. Burr.\n\nWith respect to pages four and five, and pages eight, 12, and 13 of the Executive\nSummary, an analysis of a public body's interests in the trade secret context begins with a\ndetermination of whether disclosure of the information would \"make it more difficult for the\nagency to induce people to submit similar information in the future.\" BlueStar Energy Services,\nInc., 374 Ul. App. 3d at 995; see also Cooper, 266 Ill. App. 3dlat 1013. Nowhere in its response\nto|the Public Access Bureau has the Board argued that disclosure of the information in the\nCourtland report would make it difficult for it to obtain similar consultant reports in the future.\nInjany event, such an argument would strain credulity, as the report was disclosed by Courtland\nitself at the open meeting of the Board's Investment Policy Committee, suggesting that Courtland\n\nhad no objection to the disclosure of the information in that setting. Given that the disclosure\n\nwas made to members of the public, including members of the press, it is reasonable to expect\nthat the disclosure at an open meeting could lead to a wider dissemination of the information in\n\nthe report.;\n\nThe Board also repeatedly asserted that it would suffer competitive harm from\ndisclosure of the redacted information i in the Courtland report.| In addition to the two-part test for\ntrade secret confidentiality articulated by the courts in Cooper|and BlueStar Energy Services, that\ninlorder to be exempt, disclosure would have to (1) \"either inflict substantial competitive harm\non the supplier of the information or [(2)] impair the recipient agency's ability to induce people\nto|submit similar information to it in the future\" (Cooper, 266 'Ill. App. 3d at 1013), some courts\nhave recognized that there might be other governmental interests protected by the trade secret\nexemption to FOIA. See Critical Mass Energy Project v. Nuclear Regulatory Commission, 975\nF, 2d 871, 879 (D.C. Cir. 1992); 9 to 5 Organization v. Board of Governors of the Federal\nReserve, 721 F.2d 1 (1st Cir.'1983). A public body's claim that it would face competitive harm\nfrom disclosure of a trade secret is an interest that courts may consider. See News Group Boston,\nIne. vy. National Railroad Passenger Corp., 799 F. Supp. 1264, 1268-69 (D. Mass. 1992)\n(analyzing Amtrak's claim that its interest in its ability to compete in the marketplace would be\n\nharmed by disclosure of a certain record). |\n|\n\nLike the standard for establishing competitive harm to the suppliers of trade\nsecrets, to meet its burden under section 7(1)(g), the Board must demonstrate by specific facts\nand evidence that it faces actual competition and that disclosure would result in a likelihood of\nsubstantial competitive harm, See Cooper, 266 Ill. App. 3d at'1013; New Hampshire Right to\nLife, 778 F.3d at 50; News Group Boston, Inc., 799 F. Supp. at 1268-69. For the redacted\ninformation regarding pending real estate sales on page four, the Board contended that \"[pJublic\n\nmaximum negotiating power and contro} over the sale process: 6 Regarding the withheld\ninformation on page five, which included details about potential investments, the Board argued\nthat it \"seeks to make the best investments in funds that are frequently capped and\noversubscribed. Information made public regarding potential [Board] investments would hurt\n[the Board's} ability to invest in these capped funds[. ]\"” For the fund information on pages eight,\n12, and 13 of the Executive Summary, the Board asserted that the redacted information\n\n'reflect[s] current investment strategies paid for by the Board and are therefore proprietary trade\nsecrets that could cause competitive harm to [the Board]. ]\"* These explanations are conclusory\nand are unsupported by facts or evidence that demonstrate how disclosure of the information\nwould result in substantial harm to the Board. In particular, the Board failed to explain what\ncompetition it faces for its real estate dispositions or its investments, Further, its contentions\nregarding competitive harm are vague and do not detail how harm would arise or how substantial\nthe harm would be. Moreover, the Board did not address howlits likelihood of substantial injury\nis affected by the fact that it previously disclosed the information during the Investment Policy\nCommittee meeting. As noted above, it seems likely that any claim of harm would be\ndiminished t by the partial public disclosure. In sum, the Board has failed to demonstrate by clear\nand convincing evidence that the redacted information on pages four and five, and pages eight,\n12, and 13 of the Executive Summary should be withheld on the basis of the potential for\n\ncompetitive harm to its own interests.\n\nThe remaining information in the Courtland report that the Board claims is\nexempt under 7(1)(g) pertains to specific fund information on pages eight, 12, and 13 of the\nExecutive Summary. In its supplemental response to this office, the Board explained that the\nsource of the information on these pages was the fund managers, who then provided the\ninformation to Courtland. Page eight of the Executive Summary contains information on the\nproportions of public equity, private equity, public debt, and private debt within each of the\nfunds in the Board's portfolio. In its response, the Board indicated that it is willing to disclose\nthe names of the funds, but it asserted that the remaining information could cause competitive\nharm to the funds. The information on page eight of the Executive Summary falls within the\nplain language of section 7(1)(g) because it constitutes \"fi nancial information obtained by a\npublic body * * * from a private equity fund[,]\" albeit indirectly, as a result of the public body\ninvesting in the funds. See Ill. Att'y Gen. Req. Rev. Ltr. 9147; issued May 1, 2012, at 6 (finding,\nwithout consideration of competitive harm to the equity fundslat issue, that fair market value\nback- -up information from fund managers falls within the 70S) exemption). Accordingly, the\n\n|\n\n‘Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\n\nAssistant Attomey General, at 3 (October 24, 2016). 1\n|\n| TLetter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\nAgsistant Attorney General, at 3 (October 24, 2016).\n\n|\n5 Letter from Chris Brannan, General Counsel & Chief Compliance Officer, to Laura S. Harter,\n\nPublic Access Bureau conclutles that the Board did not violate|FOIA by withholding the equity\nand debt information on page eight of the Executive Summary!\n\n. |\n| For pages 12 and13 of the Executive Summary,} ithe Board indicated that it is\n\nwilling to provide all information except for the leverage ratios. However, the Board previously\ndisclosed the leverage ratios in its response to Mr. Burr, redacting only the fund names. As the\n\nBoard is no longer asserting that section 7(1)(g) exempts from disclosure the names of the funds\nand because it has previously disclosed the leverage ratios, the Board should release to Mr. Burr\n\npages 12 and 13 in full. ! 1\n\n|\n! 1\nSection 7(1)(r) |\n|\n\n|\n\nIn its response to the Public Access Bureau, the! Board asserted for the first time\nthat the real estate investment information on page four of the Courtland report is exempt under\n7) as information regarding areal estate sale. Section 7) of FOIA exempts from\ninspection and copying \"records, documents, and information relating to real estate purchase\nnegotiations until those negotiations have been completed or otherwise terminated. * * * The\nrecords, documents and information relating to a real estate sale shall be exempt until a sale is\nconsummated. \" | !\n\n|\nIn its supplemental response, the Board clarified that only two of the planned\ndispositions listed on page four were still pending. The names|of the assets qualify as\n“information” relating to a real estate sale and therefore fall within the scope of section 7(1)(r).\nHowever, as described above, the Courtland report was shared in full at the September 15, 2016,\n\n|\n\nmeeting of the Board's Investment Policy Committee. !\n\n|\nA public body|may waive the right to withhold records under FOIA if it has\nvoluntarily disclosed the same records on a previous occasion. | Lieber v. Board of Trustees of\nSouthern Illinois University, | 176 Ill. 2d 401, 412-13 (1997). This \"waiver rule must not be\nmechanically applied whenever there is disclosure of information but, rather, requires\nconsideration of the circumstances related to the disclosure, including the purpose and extent of\nthe disclosure as well as the confidentiality surrounding the disclosure.\" Chicago Alliance for\nNeighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202 (Ist Dist. 2004). In Chicago\nAlliance, the court concluded! that the City did not waive the right to redact the names and\naddresses of people who attended community meetings to prornote neighborhood safety because\nit had disclosed that information on a confidential basis to a public policy research organization\nmonitoring and evaluating the City's alternative policing strategies. Chicago Alliance for\nNeighborhood Safety, 348 Ill: App. 3d at 203. The court emphasized that the disclosure \"was\nmade for consultation purposes and limited to a single entity which treated the names and\naddresses as confidential.\" Chicago Alliance for Neighborhood Safety, 348 Ill. App. 3d at 202.\n\nI\n\n|\n|\n|\n\nMr. Barry Burr\nMs. Tondalaya Lloyd |\nFebruary 1, 2017 |\nPage 10 |\n\nIn contrast, the information on page four of the|Courtland Report was disclosed\nduring an open meeting in the presence of members of the public and the media, including the\nrequester. The Board had no reasonable expectation that information disclosed in such a public\nsetting would be maintained confidentially or that its dissemination would be limited in any\nmanner. Accordingly, the Board waived the assertion that the information i is exempt from\ndisclosure pursuant to section 7(1)(r) of FOIA. |\n\n|\n\nNinth Request: KPMG Audit Report\n\n|\nThe Board withheld in full the document responsive to Mr. Burr's ninth request,\nreferred to in the request as the \"KPMG audit report,\" pursuant to section 7(1)(m), which\nexempts from disclosure: | |\n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject to\ndiscovery in litigation, and * * * materials prepared or compiled\nwith respect to internal audits of public bodies, (Emphasis\nadded.)\n\nThe Board contended that the report was created by the Board's auditor\n\nspecifically for and with respect to the Board's upcoming internal audit, and was therefore\nexempt under section 7(1)(m). However, the report in question was prepared for an audit to be\nconducted by KPMG, a private accounting firm. The Public Access Bureau has previously\ndetermined that audits prepared by private firms do not constitute materials prepared or compiled\n\nwith respect to internal audits of public bodies. See Ill Att'y Gen. Req. Rev. Ltr. 17844, issued\nApril 11, 2012 (\"[a]!though the] portion of the audit report [at issue] may pertain to ‘internal\n\ncontrol, that does not mean that it is an internal audit. \"); IL. Att! y Gen. Req. Rev. Ltr. 14434,\nissued September 6, 2011 (distinguishing an internal audit as one prepared by an organization's\npersonnel from an independent audit, which is prepared by anloutside person or firm).\nAccordingly, we conclude that that the Board has not sustained its burden of demonstrating by\nclear and convincing evidence that the record in question is exempt from disclosure under\n\nsection 7(1)(m). |\n|\n|\n| In accordance with. the conclusions expressed in this letter, this office requests\nthat the Board provide Mr. Burr with copies of the records determined not to be exempt from\ndisclosure. The records to be disclosed include the Courtland report, with redactions only to the\ndebt and equity information on page eight of the Executive Summary, in response to Mr. Burr's\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact'me at the Springfield address on the first page of this letter.\n\nVery truly yours, |\n\nLAURA S. HARTER\nAssistant Attorney General\nPublic Access Bureau\n\n|\n44377 f 7(1)(g) improper proper 7(1)(r) improper 7(1)(m) imptoper sa"}
{"id":885,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-12-02","case_number":null,"request_numbers":["44649"],"title":"City of Collinsville properly classified online publisher as recurrent requester, not news media","filename":"44649, issued December 2, 2016.pdf","rel_path":null,"word_count":2290,"summary":"A requester challenged the City of Collinsville's classification of them as a 'recurrent requester' under FOIA, arguing they qualified as 'news media.' The PAC determined the requester did not meet the statutory definition of news media and that no further action was warranted.","plain_summary":"A citizen requested public records from the City of Collinsville, but the City treated them as a 'recurrent requester,' which allows for longer response times. The citizen argued they should be exempt from this status because they act as 'news media.' The Attorney General's office reviewed the evidence and decided the citizen did not qualify as news media, meaning the City's original decision was appropriate.","holding":"The PAC concluded that the requester failed to demonstrate they are a member of the 'news media' as defined by FOIA, thereby upholding the City's classification of the requester as a recurrent requester.","legal_question":"Does a requester who publishes local government findings online qualify as 'news media' under 5 ILCS 140/2(f) to exempt them from the recurrent requester provisions of 5 ILCS 140/3.2?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/2","5 ILCS 140/3.2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Collinsville","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The requester sought City cellular phone bills and credit card expenditures while disputing their status as a recurrent requester.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_f/44649%2C%20issued%20December%202%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","news media","FOIA response time","public records"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nDecember 2,  2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request for Review — 2016 PAC 44649\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)).  For the reasons that follow, the\nPublic Access Bureau concludes that no further action is warranted as to this matter. \n\nOn October 13,  2016,  you submitted a FOIA request to the City of Collinsville\n\nCity)  seeking a digital copy of City cellular telephone bills for the months of July,  August,  and\nSeptember,  2016,  and copies of all City credit card expenditures and receipts for the same period. \nYou asserted that you are \" a member of the press. i' \n\nOn October 20,  2016,  the City responded by stating that it had examined your\n\npress credentials\"  issued by the website CFAPA. org and that it had determined that you are not\na \" news media\"  requester as defined by section 2( f) of FOIA (5 ILCS 140/ 2( 0 (West 2015\nSupp.)).  Therefore,  the City stated that it would continue to classify you as a recurrent requester\nunder section 3. 2 of FOIA ( 5 ILCS 140/ 3. 2 ( West 2014))  and respond to your requests within the\ntime period allowed for recurrent\n\nrequesters. \n\nIn this Request\n\nfor Review,  you contend that the City has misinterpreted section\n\n2( f) of FOIA because you \" regularly and periodically electronically publish [ your]  FOIA\nfindings with commentary for residents;  for many it is the only way they get local news since\nthere is not a local community paper covering local municipal city government. i2 You also\n\nE- mail\n\nfrom\n\nto Kimberly Wasser ( October 13,  2016). \n\n2E -mail from\n\nto Public Access [ Bureau] ( October 21,  2016). \n\n500 South Second Street,  Springfield Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217) 782- 7046\n100 West Randolph Street,  Chicago, ;Illinois,  60601 • (\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312) 814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fDecember 2,  2016\nPage 2\n\nargue that Internet journalists should be treated like print media,  citing the New Hampshire\nSupreme Court's decision in Mortgage Specialists, Inc. v. Implode -Explode Heavy Industries, \nInc.,  160 N.H. 227,  999 A.2d 184 ( N.H. 2010). \n\nOn October 26,  2016,  an Assistant Attorney General\n\nin the Public Access Bureau\n\nasked you to provide an example of your electronic publications.  In response,  you furnished\naddresses of the websites www. collinsvillemalcontents. com and www. madisontaxpayer. com. \nOn November 3,  2016,  you also sent this office a photograph of press credentials issued to you\nby the Madison County Sheriff's Office.  During a telephone conversation with an Assistant\nAttorney General on November 3,  2016,  you stated that you published\nwww.collinsvillemalcontents. com, and you and other members of the public posted information\non www. madisontaxpayer.\n\ncom. \n\nDETERMINATION\n\nrequester\"  as: \n\nSection 2( g)  of FOIA ( 5 ILCS 140/ 2( g) ( West 2015 Supp.),  defines a \" recurrent\n\na person that, in the 12 months immediately preceding the request, \nhas submitted to the same public body ( i)  a minimum of 50\nrequests for records, ( ii)  a minimum of 15 requests for records\nwithin a 30 -day period,  or ( iii) a minimum of 7 requests for records\nwithin a 7 -day period.  For purposes of this definition,  requests\nmade by news media and non-profit, scientific, or academic\norganizations shall not be considered in calculating the number\nof requests made in the time periods in this definition when the\nprincipal purpose of the requests is ( i)  to access and disseminate\ninformation concerning news and current or passing events, ( ii) for\narticles of opinion or features of interest\nthe purpose of academic,  scientific,  or public research or\neducation. ( Emphasis added.) \n\nto the public,  or ( iii) for\n\nSection 2( 0 defines \" news media'  in relevant part as a \" newspaper or other periodical\nregular intervals whether in print or electronic format, a news service whether in print or\nelectronic format[.]\" \n\nissued at\n\n\fDecember 2,  2016\n\nPage 3\n\nThe Public Access Bureau has previously determined that the plain language of\n\nsection 2( f) limits the definition of \"news media\" to a medium such as a \" newspaper,\" \nperiodical,\"  or a \" news service,\"  or an electronic version thereof. 3 See Ill. Att'y Gen. PAC Req. \nRev.  Ltr. 35187,  35393,  issued May 27,  2015,  at 3.  With respect to a self -published website,  this\noffice has concluded that the statutory definition requires more than simply establishing a\n\nwebsite as a means to communicate: \n\nMerely disseminating information or criticism electronically\nthough a website,  for via e- mail,  does not meet the statutory\ndefinition of \"news media.\"  If it did,  then any person who chose to\npost an opinion or, comment on a matter of public interest\nelectronically would become a news medium,  which was clearly\nnot the intent of the General Assembly when it enacted the\nexception.  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 33323,  issued\nFebruary 13,  2015,  at 4. \n\nThe Illinois appellate courts have not analyzed whether the statutory definition of \"news media\" \nin FOIA or an analogous statutory definition such as \" news medium\"  contained in the \" reporter's\nprivilege act\" 4 may apply to individuals or entities that self -publish material on the Internet. \nHowever,  courts in other jurisdictions have recognized that \" self-appointed journalists or\nentities\"  who claim statutory protection under reporter shield laws as media members \" require\nmore scrutiny\"  than traditional newspaper or television reporters.  Too Much Media, LLC v. \nHale,  206 N.J.  209,  242,  20 A.3d 364,  383 ( N.J.  2011). \n\nIn Too Much Media,  the New Jersey Supreme Court reviewed whether the\ndefinition of \"news media\"  contained in New Jersey' s reporter shield law included blogger\npostings on an on- line bulletin board.  The shield law defined \" news media\"  as \" newspapers, \nmagazines, press associations,  wire services, radio, television or other similar printed, \nphotographic,  mechanical or electronic means of disseminating news to the general public.\"  Too\n\n3The definition of \"news media\"  also includes radio stations,  television stations,  television\n\nnetworks,  community antenna television services,  or persons or corporations engaged in making news reels or other\nmotion picture news for public showing This Request for Review does not suggest that either online publication\nconstitutes one of these types of media. \n\nnews medium\"  as: \n\n4Section 8- 902( b)  of the Code of Civil Procedure ( 735 ILCS 5/ 8- 902( b) ( West 2014))  defines\n\nissued at regular intervals whether in print or\n\nany newspaper or other periodical\nelectronic format and having a general circulation; a news service whether in\nprint or electronic format;  a radio station;  a television station;  a television\nnetwork; a community antenna television service;  and any person or corporation\nengaged in the making of news reels or other motion picture news for public\nshowing. \n\n\fDecember 2,  2016\n\nPage 4\n\nMuch Media,  206 N.J.  at 229,  20 A.3d at 376.  The court focused its analysis on whether the\nmaterial was \" similar\"  to those produced by traditional media sources,  and concluded that the\nblogger had not demonstrated that she was \" news media\"  because the posted content was\nunedited personal commentary that was not sufficiently similar to a newspaper or other\ntraditional media.  Too Much Media,  206 N.J.  at 234- 37,  20 A.3d at 378- 80. \n\nSimilarly,  in Obsidian Finance Group,  LLC v.  Cox,  CV - 11 - 57 -HZ,  2011 WL\n\n5999334, at * 1 ( D.  Or. Nov. 30,  2011),  a federal district court rejected an internet blogger's claim\nthat she was protected under the Oregon reporter shield law,  which defined a \" medium of\ncommunication\"  as \" any newspaper,  magazine or other periodical,  book,  pamphlet,  news service, \nwire service,  news or feature syndicate,  broadcast station or network,  or cable television system.\" \nThe court identified several factors relevant to its determination that the blogger was not a\nmember of the media: (\n1)  education in journalism; ( 2)  credentials or proof of an affiliation with\na recognized news entity; ( 3)  proof of adherence to journalistic standards such as editing,  fact - \nchecking,  or disclosures of conflicts of interest; ( 4)  keeping notes of conversations and\ninterviews conducted; ( 5)  mutual understanding or agreement of confidentiality with sources; ( 6) \ncreation of an independent product rather than assembling writings and posting of others;  and ( 7) \ncontacting both sides of a story.  Obsidian Finance Group,  2011 WL 5999334,  at * 5.  The court\nconcluded that \"[ w] ithout evidence of this nature,  defendant\n\nis not ' media.'\" \n\nIn contrast,  in O'Grady v. Superior Court,  139 Cal.  App. 4th 1423,  44 Cal.  Rptr. \n3d 72 ( Cal.  Ct. App. 2006),  the California Court of Appeals held that the \" reporter shield\"  in the\nCalifornia Constitution and a related statute protected two websites from being held in contempt\nof court based on the websites'  similarities to the types of media specified in those constitutional\nlanguage that extended protection\nand statutory provisions.  Both provisions contained identical\nto a \" publisher,  editor,  reporter,  of other person connected with or employed upon a newspaper, \nmagazine,  or other periodical publication,  or by a press association or wire service,  or any person\nwho has been so connected or employed,\"  and a \" radio or television news reporter or other\nperson connected with or employed by a radio or television station,  or any person who has been\nso connected or employed[.]\"  Cal.  Const.  Art.  1, § 2( b);  Cal.  Evid.  Code §  1070( a) ( West 2006). \nThe court emphasized that the websites \" reflect a kind and degree of editorial control that makes\nthem resemble a newspaper or magazine far more closely than\"  web -based bulletin boards and\nreasoned that \" the open and deliberate publication in a news -oriented Web site of news gathered\nfor that purpose by the site' s operators * * * \npublishing a newspaper[.]\"  O' Grady,  139 Cal. App. 4th at 1450,  1459,  44 Cal. Rptr. 3d at 91, \n99. \n\nappears conceptually indistinguishable from\n\nAs you cited, the New Hampshire Supreme Court also held that a website was\n\nsubject to its constitutional newsgathering privilege.  Mortgage Specialists,  160 N. H.  at 234,  999\nA.2d at 189.  Notably, the court was construing the provision of the New Hampshire Constitution\nN.H. Const.  Part 1,  Art. 22))  that generally provides for freedom of speech and freedom of the\npress without defining covered press entities or otherwise limiting its application to certain types\n\n\fDecember 2,  2016\nPage 5\n\nof media,  as section 2( f) of FOIA does.  In addition,  the court accepted the trial court' s findings\nthat the website at issue was \" a legitimate publisher of information and a member of the press.\" \nMortgage Specialists,  160 N.H. at 233- 34,  999 A.2d at 189.  Accordingly,  Mortgage Specialists\nis not instructive on the issue of how section 2( f) applies to the websites at issue in this matter. \n\nAs described in the other cases discussed above,  in order to be considered a\n\nmember of the news media covered by reporter shield statutes,  an individual or entity that self - \npublishes information on the Internet generally must demonstrate some adherence to recognized\njournalistic standards such as editorial oversight or the creation of original content similar to that\nof traditional media.  These courts'  rationales are consistent with the plain statutory language of\nsection 2( t) of FOIA that limits its application to a \" newspaper,\" \" periodical\"  or \" news service\" \nand their electronic versions.  The General Assembly has not expanded the definition in FOIA to\ninclude other individuals or entities apart from those traditional media sources and their\n\nelectronic\n\nversions. \n\nThis office has reviewed the websites you provided.  The website\n\nwww.collinsvillemalcontents consists of links to public records that it appears were obtained\nthrough FOIA or public court files.  The website www.madisontaxpayer.com consists of links to\nnews publications.  Neither website contains original content or credits particular authors with\nany material posted on them.  Given the absence of features such as editorial oversight and\noriginalincontent, \n\nthe websites do riot resemble a \" newspaper,\" \" periodical,\"  or \" news service\"  in\n\nt\n\nan\n\nform\n\nYou also have provided evidence of both your credentials and education.  As\n\ndescribed by the City, the website CFAPA. org and its operator the Constitution First\nAmendment Press Association also do not appear to be news media, but rather a means to issue\npress \" credentials\"  to those who request them via the website.  The press \" credentials\"  issued by\nthe Madison County Sheriffs Office identifies that you are associated with the\nwww.madisontaxpayer. com website discussed above.  Neither set of \"credentials,\"  however, \ndemonstrates a connection with one of the \" news media\"  described in section 2(0 of FOIA. \nLikewise, your degree in mass communications,  standing on its own, does not demonstrate you\nare currently working as a member of the \" news media.\" \n\n\fDecember 2,  2016\nPage 6\n\nAccordingly, this Office concludes thatou are not exempted bythe\nexception from the recurrent requester provision of FOIA,  and that no further action is warranted\nas to this matter.  If you have any questions,  please contact me at ( 217)  782- 9078. \n\nnews - media\n\nY\n\np\n\nVery truly yours, \n\nNEIL P.  OLSON\n\nDeputy Public Access Counselor\nAssistant Attorney General,  Public Access Bureau\n\n44649 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs.  Kim Wasser\nFreedom of Information Officer\nCity of Collinsville\n125 South Center Street\nCollinsville,  Illinois 62234\nkwasser@collinsvilleil. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Cellular phone bills and credit card expenditures","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-44649/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nDecember 2, 2016\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2016 PAC 44649\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action is warranted as to this matter. \n\nOn October 13, 2016, you submitted a FOIA request to the City of Collinsville\n\nCity) seeking a digital copy of City cellular telephone bills for the months of July, August, and\nSeptember, 2016, and copies of all City credit card expenditures and receipts for the same period. \nYou asserted that you are \" a member of the press. i' \n\nOn October 20, 2016, the City responded by stating that it had examined your\n\npress credentials\" issued by the website CFAPA. org and that it had determined that you are not\na \" news media\" requester as defined by section 2(f) of FOIA (5 ILCS 140/ 2(0 (West 2015\nSupp.)). Therefore, the City stated that it would continue to classify you as a recurrent requester\nunder section 3. 2 of FOIA (5 ILCS 140/ 3. 2 (West 2014)) and respond to your requests within the\ntime period allowed for recurrent\n\nrequesters. \n\nIn this Request\n\nfor Review, you contend that the City has misinterpreted section\n\n2(f) of FOIA because you \" regularly and periodically electronically publish [ your] FOIA\nfindings with commentary for residents; for many it is the only way they get local news since\nthere is not a local community paper covering local municipal city government. i2 You also\n\nE- mail\n\nfrom\n\nto Kimberly Wasser (October 13, 2016). \n\n2E -mail from\n\nto Public Access [ Bureau] (October 21, 2016). \n\nargue that Internet journalists should be treated like print media, citing the New Hampshire\nSupreme Court's decision in Mortgage Specialists, Inc. v. Implode -Explode Heavy Industries, \nInc., 160 N.H. 227, 999 A.2d 184 (N.H. 2010). \n\nOn October 26, 2016, an Assistant Attorney General\n\nin the Public Access Bureau\n\nasked you to provide an example of your electronic publications. In response, you furnished\naddresses of the websites www. collinsvillemalcontents. com and www. madisontaxpayer. com. \nOn November 3, 2016, you also sent this office a photograph of press credentials issued to you\nby the Madison County Sheriff's Office. During a telephone conversation with an Assistant\nAttorney General on November 3, 2016, you stated that you published\nwww.collinsvillemalcontents. com, and you and other members of the public posted information\non www. madisontaxpayer.\n\ncom. \n\nDETERMINATION\n\nrequester\" as: \n\nSection 2(g) of FOIA (5 ILCS 140/ 2(g) (West 2015 Supp.), defines a \" recurrent\n\na person that, in the 12 months immediately preceding the request, \nhas submitted to the same public body (i) a minimum of 50\nrequests for records, (ii) a minimum of 15 requests for records\nwithin a 30 -day period, or (iii) a minimum of 7 requests for records\nwithin a 7 -day period. For purposes of this definition, requests\nmade by news media and non-profit, scientific, or academic\norganizations shall not be considered in calculating the number\nof requests made in the time periods in this definition when the\nprincipal purpose of the requests is (i) to access and disseminate\ninformation concerning news and current or passing events, (ii) for\narticles of opinion or features of interest\nthe purpose of academic, scientific, or public research or\neducation. (Emphasis added.) \n\nto the public, or (iii) for\n\nSection 2(0 defines \" news media' in relevant part as a \" newspaper or other periodical\nregular intervals whether in print or electronic format, a news service whether in print or\n\nThe Public Access Bureau has previously determined that the plain language of\n\nsection 2(f) limits the definition of \"news media\" to a medium such as a \" newspaper,\" \nperiodical,\" or a \" news service,\" or an electronic version thereof. 3 See Ill. Att'y Gen. PAC Req. \nRev. Ltr. 35187, 35393, issued May 27, 2015, at 3. With respect to a self -published website, this\noffice has concluded that the statutory definition requires more than simply establishing a\n\nwebsite as a means to communicate: \n\nMerely disseminating information or criticism electronically\nthough a website, for via e- mail, does not meet the statutory\ndefinition of \"news media.\" If it did, then any person who chose to\npost an opinion or, comment on a matter of public interest\nelectronically would become a news medium, which was clearly\nnot the intent of the General Assembly when it enacted the\nexception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 33323, issued\nFebruary 13, 2015, at 4. \n\nThe Illinois appellate courts have not analyzed whether the statutory definition of \"news media\" \nin FOIA or an analogous statutory definition such as \" news medium\" contained in the \" reporter's\nprivilege act\" 4 may apply to individuals or entities that self -publish material on the Internet. \nHowever, courts in other jurisdictions have recognized that \" self-appointed journalists or\nentities\" who claim statutory protection under reporter shield laws as media members \" require\nmore scrutiny\" than traditional newspaper or television reporters. Too Much Media, LLC v. \nHale, 206 N.J. 209, 242, 20 A.3d 364, 383 (N.J. 2011). \n\nIn Too Much Media, the New Jersey Supreme Court reviewed whether the\ndefinition of \"news media\" contained in New Jersey's reporter shield law included blogger\npostings on an on- line bulletin board. The shield law defined \" news media\" as \" newspapers, \nmagazines, press associations, wire services, radio, television or other similar printed, \nphotographic, mechanical or electronic means of disseminating news to the general public.\" Too\n\n3 The definition of \"news media\" also includes radio stations, television stations, television\n\nnetworks, community antenna television services, or persons or corporations engaged in making news reels or other\nmotion picture news for public showing This Request for Review does not suggest that either online publication\nconstitutes one of these types of media. \n\nnews medium\" as: \n\n4 Section 8- 902(b) of the Code of Civil Procedure (735 ILCS 5/ 8- 902(b) (West 2014)) defines\n\nissued at regular intervals whether in print or\n\nMuch Media, 206 N.J. at 229, 20 A.3d at 376. The court focused its analysis on whether the\nmaterial was \" similar\" to those produced by traditional media sources, and concluded that the\nblogger had not demonstrated that she was \" news media\" because the posted content was\nunedited personal commentary that was not sufficiently similar to a newspaper or other\ntraditional media. Too Much Media, 206 N.J. at 234- 37, 20 A.3d at 378- 80. \n\nSimilarly, in Obsidian Finance Group, LLC v. Cox, CV - 11 - 57 -HZ, 2011 WL\n\n5999334, at * 1 (D. Or. Nov. 30, 2011), a federal district court rejected an internet blogger's claim\nthat she was protected under the Oregon reporter shield law, which defined a \" medium of\ncommunication\" as \" any newspaper, magazine or other periodical, book, pamphlet, news service, \nwire service, news or feature syndicate, broadcast station or network, or cable television system.\" \nThe court identified several factors relevant to its determination that the blogger was not a\nmember of the media: (1) education in journalism; (2) credentials or proof of an affiliation with\na recognized news entity; (3) proof of adherence to journalistic standards such as editing, fact - \nchecking, or disclosures of conflicts of interest; (4) keeping notes of conversations and\ninterviews conducted; (5) mutual understanding or agreement of confidentiality with sources; (6) \ncreation of an independent product rather than assembling writings and posting of others; and (7) \ncontacting both sides of a story. Obsidian Finance Group, 2011 WL 5999334, at * 5. The court\nconcluded that \"[ w] ithout evidence of this nature, defendant\n\nis not ' media.'\" \n\nIn contrast, in O'Grady v. Superior Court, 139 Cal. App. 4th 1423, 44 Cal. Rptr. \n3d 72 (Cal. Ct. App. 2006), the California Court of Appeals held that the \" reporter shield\" in the\nCalifornia Constitution and a related statute protected two websites from being held in contempt\nof court based on the websites' similarities to the types of media specified in those constitutional\nlanguage that extended protection\nand statutory provisions. Both provisions contained identical\nto a \" publisher, editor, reporter, of other person connected with or employed upon a newspaper, \nmagazine, or other periodical publication, or by a press association or wire service, or any person\nwho has been so connected or employed,\" and a \" radio or television news reporter or other\nperson connected with or employed by a radio or television station, or any person who has been\nso connected or employed[.]\" Cal. Const. Art. 1, § 2(b); Cal. Evid. Code § 1070(a) (West 2006). \nThe court emphasized that the websites \" reflect a kind and degree of editorial control that makes\nthem resemble a newspaper or magazine far more closely than\" web -based bulletin boards and\nreasoned that \" the open and deliberate publication in a news -oriented Web site of news gathered\nfor that purpose by the site's operators * * * \npublishing a newspaper[.]\" O' Grady, 139 Cal. App. 4th at 1450, 1459, 44 Cal. Rptr. 3d at 91, \n99. \n\nappears conceptually indistinguishable from\n\nAs you cited, the New Hampshire Supreme Court also held that a website was\n\nsubject to its constitutional newsgathering privilege. Mortgage Specialists, 160 N. H. at 234, 999\nA.2d at 189. Notably, the court was construing the provision of the New Hampshire Constitution\nN.H. Const. Part 1, Art. 22)) that generally provides for freedom of speech and freedom of the\npress without defining covered press entities or otherwise limiting its application to certain types\n\nof media, as section 2(f) of FOIA does. In addition, the court accepted the trial court's findings\nthat the website at issue was \" a legitimate publisher of information and a member of the press.\" \nMortgage Specialists, 160 N.H. at 233- 34, 999 A.2d at 189. Accordingly, Mortgage Specialists\nis not instructive on the issue of how section 2(f) applies to the websites at issue in this matter. \n\nAs described in the other cases discussed above, in order to be considered a\n\nmember of the news media covered by reporter shield statutes, an individual or entity that self - \npublishes information on the Internet generally must demonstrate some adherence to recognized\njournalistic standards such as editorial oversight or the creation of original content similar to that\nof traditional media. These courts' rationales are consistent with the plain statutory language of\nsection 2(t) of FOIA that limits its application to a \" newspaper,\" \" periodical\" or \" news service\" \nand their electronic versions. The General Assembly has not expanded the definition in FOIA to\ninclude other individuals or entities apart from those traditional media sources and their\n\nelectronic\n\nversions. \n\nThis office has reviewed the websites you provided. The website\n\nwww.collinsvillemalcontents consists of links to public records that it appears were obtained\nthrough FOIA or public court files. The website www.madisontaxpayer.com consists of links to\nnews publications. Neither website contains original content or credits particular authors with\nany material posted on them. Given the absence of features such as editorial oversight and\noriginalincontent, \n\nthe websites do riot resemble a \" newspaper,\" \" periodical,\" or \" news service\" in\n\nt\n\nan\n\nform\n\nYou also have provided evidence of both your credentials and education. As\n\ndescribed by the City, the website CFAPA. org and its operator the Constitution First\nAmendment Press Association also do not appear to be news media, but rather a means to issue\npress \" credentials\" to those who request them via the website. The press \" credentials\" issued by\nthe Madison County Sheriffs Office identifies that you are associated with the\nwww.madisontaxpayer. com website discussed above. Neither set of \"credentials,\" however, \ndemonstrates a connection with one of the \" news media\" described in section 2(0 of FOIA. \nLikewise, your degree in mass communications, standing on its own, does not demonstrate you\n\nAccordingly, this Office concludes thatou are not exempted bythe\nexception from the recurrent requester provision of FOIA, and that no further action is warranted\nas to this matter. If you have any questions, please contact me at (217) 782- 9078. \n\nnews - media\n\nY\n\np\n\nVery truly yours, \n\nNEIL P. OLSON\n\nDeputy Public Access Counselor\nAssistant Attorney General, Public Access Bureau\n\n44649 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Kim Wasser\nFreedom of Information Officer\nCity of Collinsville\n125 South Center Street\nCollinsville, Illinois 62234\nkwasser@collinsvilleil. org"}
{"id":886,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2016-11-17","case_number":null,"request_numbers":["44651"],"title":"Village of Pingree Grove properly denied unduly burdensome calendar request","filename":"44651, issued November 17, 2016.pdf","rel_path":null,"word_count":1072,"summary":"The requester sought three years of electronic calendars for a village official, and the PAC determined that the Village of Pingree Grove properly denied the request as unduly burdensome under section 3(g) of FOIA.","plain_summary":"A citizen requested three years of calendar records from a village official. The village argued that reviewing nearly 7,000 appointments was too burdensome, and the Attorney General's office agreed, closing the case without requiring the village to provide the records.","holding":"The Village of Pingree Grove did not improperly deny the request because the burden of complying with the categorical request outweighed the public interest in disclosure.","legal_question":"Whether a request for three years of electronic calendars constitutes an unduly burdensome request under section 3(g) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Pingree Grove","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought three years of electronic calendar appointments for a village official.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Categorical-requests/44651%2C%20issued%20November%2017%2C%202016.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","calendar records","FOIA request","public official"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 17,  2016\n\nRE:  FOIA Request for Review — 2016 PAC 44651\n\nDear\n\nThis determination is issued pursuant to section 9. 5( c)  of the Freedom of\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)).  Because it would be unduly\nburdensome for the Village of Pingree Grove ( Village)  to comply with your categorical request, \nthis office has determined that no further action is warranted as to this matter. \n\nOn October 7,  2016,  you submitted a FOIA request to the Village seeking: \n\nAll electronic calendars for Dean Frieders for the period of\n\nSeptember\n\n1,  2013,  to October 31,  2016,  that relate to the business\n\nof the Village of Pingree Grove.  Since Mr. Frieders uses google\n\napps for his email,  if he uses google calendar for his calendar, \n\nplease print the information in agenda format and portrait to\n\nminimize the number of pages.  If Mr. Frieders uses another\n\ncalendar product,  please print out in the week view with each week\nprinted on one page.111\n\nOn October 12,  2016,  the Village responded by asserting that your request is unduly burdensome\nunder section 3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West 2014))  because Mr. Frieders would need to\ngather and review records from 1, 399 calendar days consisting of roughly 6, 995 appointments. \nThe Village offered you the opportunity to narrow your request to more manageable proportions. \n\nFOIA request\n\nto foia@pingreegove. org ( October 7,  2016). \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fNovember 17,  2016\n\nPage 2\n\nOn October 21,  2016,  you submitted this Request\n\nfor Review contesting the\n\nVillage' s response.  Specifically,  you alleged that,  based on the requested format,  the responsive\nrecords should comprise only approximately\n164 pages of Mr. Frieders' s calendar.  Furthermore, \nyou contended that the Village previously provided similar responsive records for other public\nemployees. \n\nSection 3( g)  of FOIA provides,  in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\nin the information.  Before invoking\noutweighs the public interest\nthis exemption,  the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. \n\nThis office has previously determined that a request seeking all records in a category over an\nextended period of time,  which would require a public body to review a large quantity of\nresponsive records,  is unduly burdensome under section 3( g)  of FOIA in the absence of an\nidentified public interest in disclosure of all of the records that outweighs the burden of\ncompliance with the request.  See,  e. g., Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 20002,  issued August\n29,  2012,  at 3 ( a request for all grievance records spanning a 12 -month period was unduly\nburdensome);  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. 21102,  issued November 19,  2012,  at 3- 4 ( a\nrequest for financial records spanning a 5 -year period was unduly burdensome);  see also\nNational Assn of Criminal Defense Lawyers v.  Chicago Police Department,  399 Ill. App.  3d 1, \n17 ( 1st Dist.  2010) (\" A request\nreview, redact and arrange for inspection a vast quantity of material that is largely unnecessary to\nthe [ requester's]  purpose constitutes an undue burden.\"). \n\nthat is overly broad and requires the public body to locate, \n\nIt is clear that compliance with this request would require the Village to review\n\nand redact a vast quantity of material that is largely unnecessary to any purpose pertaining to Mr. \nFrieders's work for the Village, given that Mr. Frieders also works for other clients and attends to\npersonal matters.  You categorically requested 38 months of records without articulating a public\nthat could outweigh the Village' s burden.  Your reason of wanting \" an overview of what\ninterest\nMr. Frieders spends time [ on]  for his compensation of over $ 50, 000 per year\" 2 is insufficient\nfor\nthe Village to be required to review,  redact,  and prepare for disclosure all of the responsive\nrecords,  particularly because your request encompasses records that do not pertain to the public\nbusiness of the Village over an extended period of time.  Moreover,  a careful review of the\n\n2E - mail from\n\nPublic Access ( October 21,  2016). \n\n\fNovember 17,  2016\nPage 3\n\nrecords would be justified to identify portions of the records that are exempt from disclosure\nunder FOIA.  In particular, portions of a public official's calendar that reveal the substance of\nattomey- client communications may be properly withheld under section 7( 1)( m)  of FOIA ( 5\nILCS 140/ 7( 1)( m) ( West 2015 Supp.),  as amended by Public Act 99-642,  effective July 28, \n2016).  See I11.  Att'y Gen.  Pub.  Acc.  Op.  No.  15- 008,  issued September 15,  2016.  And even if\nthe Village has complied with requests for calendars of other public officials in the past,  it is not\nobligated to comply with an unduly burdensome request\navailable information indicates that — under these circumstances —  the Village' s burden of\ncomplying with your request for electronic calendars for a more than three- year period\noutweighs the public interest in disclosure of that information, this office concludes that the\nVillage did not improperly deny that request as unduly burdensome.  Accordingly,  this office has\ndetermined that no further action is warranted as to this matter. \n\nfor a different calendar.  Because the\n\nme at the Springfield address listed on the first page of this letter. \n\nThis letter serves to close this file.  If you have any questions,  you may contact\n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n44651 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Mary Brandes\nDeputy Village Clerk\nVillage of Pingree Grove\n14N042 Reinking Road\nPingree Grove, Illinois 60140\nfoia@pingreegrove.org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village official's electronic calendar appointments","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-44651/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 17, 2016\n\nRE: FOIA Request for Review — 2016 PAC 44651\n\nDear\n\nThis determination is issued pursuant to section 9. 5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2014)). Because it would be unduly\nburdensome for the Village of Pingree Grove (Village) to comply with your categorical request, \nthis office has determined that no further action is warranted as to this matter. \n\nOn October 7, 2016, you submitted a FOIA request to the Village seeking: \n\nAll electronic calendars for Dean Frieders for the period of\n\nSeptember\n\n1, 2013, to October 31, 2016, that relate to the business\n\nof the Village of Pingree Grove. Since Mr. Frieders uses google\n\napps for his email, if he uses google calendar for his calendar, \n\nplease print the information in agenda format and portrait to\n\nminimize the number of pages. If Mr. Frieders uses another\n\ncalendar product, please print out in the week view with each week\nprinted on one page.111\n\nOn October 12, 2016, the Village responded by asserting that your request is unduly burdensome\nunder section 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2014)) because Mr. Frieders would need to\ngather and review records from 1, 399 calendar days consisting of roughly 6, 995 appointments. \nThe Village offered you the opportunity to narrow your request to more manageable proportions. \n\nFOIA request\n\nto foia@pingreegove. org (October 7, 2016). \n\nOn October 21, 2016, you submitted this Request\n\nfor Review contesting the\n\nVillage's response. Specifically, you alleged that, based on the requested format, the responsive\nrecords should comprise only approximately\n164 pages of Mr. Frieders's calendar. Furthermore, \nyou contended that the Village previously provided similar responsive records for other public\nemployees. \n\nSection 3(g) of FOIA provides, in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\nin the information. Before invoking\noutweighs the public interest\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. \n\nThis office has previously determined that a request seeking all records in a category over an\nextended period of time, which would require a public body to review a large quantity of\nresponsive records, is unduly burdensome under section 3(g) of FOIA in the absence of an\nidentified public interest in disclosure of all of the records that outweighs the burden of\ncompliance with the request. See, e. g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 20002, issued August\n29, 2012, at 3 (a request for all grievance records spanning a 12 -month period was unduly\nburdensome); Ill. Att' y Gen. PAC Req. Rev. Ltr. 21102, issued November 19, 2012, at 3- 4 (a\nrequest for financial records spanning a 5 -year period was unduly burdensome); see also\nNational Assn of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n17 (1st Dist. 2010) (\" A request\nreview, redact and arrange for inspection a vast quantity of material that is largely unnecessary to\nthe [ requester's] purpose constitutes an undue burden.\"). \n\nthat is overly broad and requires the public body to locate, \n\nIt is clear that compliance with this request would require the Village to review\n\nand redact a vast quantity of material that is largely unnecessary to any purpose pertaining to Mr. \nFrieders's work for the Village, given that Mr. Frieders also works for other clients and attends to\npersonal matters. You categorically requested 38 months of records without articulating a public\nthat could outweigh the Village's burden. Your reason of wanting \" an overview of what\ninterest\nMr. Frieders spends time [ on] for his compensation of over $ 50, 000 per year\" 2 is insufficient\nfor\nthe Village to be required to review, redact, and prepare for disclosure all of the responsive\nrecords, particularly because your request encompasses records that do not pertain to the public\n\nrecords would be justified to identify portions of the records that are exempt from disclosure\nunder FOIA. In particular, portions of a public official's calendar that reveal the substance of\nattomey- client communications may be properly withheld under section 7(1)(m) of FOIA (5\nILCS 140/ 7(1)(m) (West 2015 Supp.), as amended by Public Act 99-642, effective July 28, \n2016). See I11. Att'y Gen. Pub. Acc. Op. No. 15- 008, issued September 15, 2016. And even if\nthe Village has complied with requests for calendars of other public officials in the past, it is not\nobligated to comply with an unduly burdensome request\navailable information indicates that — under these circumstances — the Village's burden of\ncomplying with your request for electronic calendars for a more than three- year period\noutweighs the public interest in disclosure of that information, this office concludes that the\nVillage did not improperly deny that request as unduly burdensome. Accordingly, this office has\ndetermined that no further action is warranted as to this matter. \n\nfor a different calendar. Because the\n\nme at the Springfield address listed on the first page of this letter. \n\nThis letter serves to close this file. If you have any questions, you may contact\n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n44651 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Mary Brandes\nDeputy Village Clerk\nVillage of Pingree Grove\n14N042 Reinking Road\nPingree Grove, Illinois 60140\nfoia@pingreegrove.org"}
{"id":887,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-03-07","case_number":null,"request_numbers":["45170"],"title":"Illinois DOC violated FOIA by withholding Gang Renunciation program info under 7(1)(a)","filename":"45170, issued March 7, 2017.pdf","rel_path":null,"word_count":2291,"summary":"The PAC determined that the Illinois Department of Corrections (IDOC) improperly denied a FOIA request for information regarding its Gang Renunciation Program by failing to prove the records were exempt under state law.","plain_summary":"A legal clinic requested general information about the Illinois Department of Corrections' Gang Renunciation program, but the agency denied the request, claiming the information was confidential under state law. The Attorney General's office reviewed the case and found that the IDOC violated FOIA by improperly denying the request. The office also determined that the IDOC failed to provide sufficient evidence to justify the exemption, but the document does not include any order requiring the agency to release the records.","holding":"The IDOC violated FOIA by improperly denying the request, but the source does not state any specific order or remedy.","legal_question":"Whether the IDOC properly invoked FOIA section 7(1)(a) to withhold records based on the confidentiality provisions of section 3-2-5(c) of the Unified Code of Corrections.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois Department of Corrections","requesting_party":"Ms. Alexandra Scott (Mandel Legal Aid Clinic)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"exemption 7(1)(a)","subject_description":"The requester sought general information and structural details regarding the Illinois Department of Corrections' Gang Renunciation program.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_c/45170%2C%20issued%20March%207%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["IDOC","gang renunciation program","denial of records","burden of proof"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nMarch 7,  2017\n\nVia electronic mail\n\nMs.  Alexandra Scott\n\nMandel Legal Aid Clinic\n\n[street address redacted for site publication -- see original PDF]\najscott@uchicago.\n\nedu\n\nVia electronic mail\n\nMr. Joel M. Diers\nFreedom of Information Office\nIllinois Department of Corrections\n1301 Concordia Court\nP. O.  Box 19277\n\nSpringfield, Illinois 62794- 9277\njoel. diers@doc. illinois. gov\n\nRE:  FOIA Request\n\nfor Review — 2016 PAC 45170;  IDOC 16 1110066\n\nDear Ms.  Scott and Mr. Diers: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2014)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the Illinois Department of Corrections ( IDOC)  violated\nFOIA by improperly denying Ms.  Alexandra Scott' s November 10,  2016, FOIA request. \n\nOn that date,  Ms.  Scott,  on behalf of the Mandel Legal Aid Clinic,  submitted a\nFOIA request to IDOC seeking \" information regarding the Illinois Department of Corrections\nGang Renunciation program under the Freedom of Information Act.  I request any general\ninformation you may have,  including, but not limited to the structure of the program.\"'  On\nNovember 14,  2016,  IDOC denied Ms.  Scott' s request pursuant\nILCS 140/ 7( 1)( a) ( West 2015 Supp.),  as amended by Public Act 99- 642,  effective July 28, \n2016),  citing section 3- 2- 5( c)  of the Unified Code of Corrections ( UCC) ( 730 ILCS 5/ 3- 2- 5( c) \n\nto section 7( I)( a)  of FOIA ( 5\n\nWeitekamp, \n\nLetter from Alexandra Scott, Mandel Legal Clinic, to Freedom of Information Officer Lisa\n10,  2016). \n\nIllinois Department of Corrections ( November\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Alexandra Scott\nMr. Joel Diers\n\nMarch 7,  2017\n\nPage 2\n\nWest 2014)),  which exempts information collected and maintained by the gang intelligence unit\nfrom \" disclosure under the Freedom of Information Act as the information contained is highly\nconfidential and may be harmful if disclosed.\" \nIn her Request for Review,  Ms.  Scott disputed\nIDOC' s denial,  arguing that the records she sought pertained to the structure of the Gang\nRenunciation Program, not confidential information about the particularities of inmate gang\npopulations,  and therefore are not prohibited from being disclosed under section 3- 2- 5( c)  of the\nUCC. \n\nOn December 7,  2016, this office forwarded a copy of the Request for Review to\nIDOC and asked it to provide the Public Access Bureau with ( i)  copies of any records responsive\nto Ms. Scott's request and ( ii) a detailed explanation of the factual and legal bases for the\nexemptions asserted, addressing in particular whether the records sought by Ms. Scott pertaining\nto the structure of the Gang Renunciation Program were collected and maintained by the gang\nintelligence unit pursuant to the unit' s responsibilities as described in section 3- 2- 5( c)  of the\nUCC.  On December 8,  2016,  IDOC submitted a written response, but did not provide this office\nwith copies of records responsive to Ms. Scott's request.  Ms. Scott did not reply.  On February\n24,  2017,  an assistant attorney general\nrenewing this office' s request for copies of the records that were withheld for confidential\nreview.  On the same day,  IDOC's legal counsel responded by stating that because the records\ncontain \" highly sensitive\"  information, \" the statute gives IDOC discretion on who this\ninformation gets disseminated to and [ in] this instance we cannot comply with your request.\" 2\n\nin the Public Access Bureau sent an e- mail to IDOC\n\nDETERMINATION\n\nSection 9. 5( c) \n\nreview.  Section 9. 5( c) \n\nAs a threshold matter,  the plain language of section 3- 2- 5( c)  of the UCC cited\nbelow does not address the Request for Review process or give IDOC discretion to refuse to\nprovide copies of records to the Public Access Counselor for confidential\nof FOIA (5 ILCS 140/ 9.5( c) ( West 2014))  expressly and unambiguously provides that each\npublic body \" shall provide copies of records requested and shall otherwise fully cooperate with\nthe Public Access Counselor.\" ( Emphasis added.)  Section 9. 5( c)  does not afford IDOC\ndiscretion to disregard its statutory obligation to fully cooperate with this inquiry.  The General\nAssembly clearly recognized that the Public Access Counselor must have access to all pertinent\nrecords in order to conduct a complete review of a public body' s compliance with FOIA.  The\nfollowing colloquy between Representative Elaine Nekritz and Representative Michael Madigan, \nthe House sponsor of the bill, during the House debate on Senate Bill 189 ( which,  as Public Act\n96- 542, effective January 1,  2010, created the Office of the Public Access Counselor),  evinces\nthe General Assembly's intention to vest the Public Access Counselor with complete authority to\nconduct confidential reviews of records: \n\n2E -mail\n\nfrom Joel M.  Diers to Laura Harter ( February 24,  2017). \n\n\fMs.  Alexandra Scott\nMr. Joel Diers\nMarch 7,  2017\n\nPage 3\n\nI just have some questions * * * \nIt' s my\n\nNekritz:  Thank you Mr.  Speaker. \nto clarify the legislative intent under this. * * * \nunderstanding that under this Bill, an agency' s required to provide\nrecords requested by the public access counselor.  What if some\nother State or Federal Law precludes disclosure of those records to\nsome other party like HIPAA, an IG report or something like that? \nHow does that * * *  get resolved? \n\nMadigan:  Point number one, the Attorney General will review\nthose documents in confidence.  They would be kept confidential. \nPoint number two, if it were a Federal Law in conflict, why, the\nFederal Law would control. \n\nNekritz: [ A] nd if some investigating authority such as the U. S. \nAttorney asked to have that certain records not be disclosed * * * \nwhat would be the result there? \n\nMadigan: * * * [ T] he Office of the U. S.  Attorney could interact\nwith the Office of the Attorney General,  make a request,  but the\nfinal judgment... the final decision would be made by the\nAttorney General. ( Emphasis added.)  Remarks of Rep. Nekritz\nand Rep.  Madigan,  May 27,  2009,  House Debate on Senate Bill\nNo.  189,  at 105. \n\nThe General Assembly clearly did not intend to allow public bodies to decide\n\nwhat records they would or would not submit for the Public Access Counselor' s review.  IDOC' s\nrefusal to provide copies of the records in question undermines the Public Access Counselor's\nduty to conduct the type of comprehensive review that the General Assembly deemed to be\ncrucial when it enacted Public Act 96- 542.  This refusal violates section 9.5( c)  of FOIA (see Ill. \nAtt'y Gen.  Pub.  Acc.  Op. No.  12- 007,  issued April 2,  2012). \n\nDespite IDOC's lack of cooperation, this office will analyze the assertion of\nsection 7( 1)( a)  based on the limited information available for our review.  A court \" need not\nconduct an in camera review where the public body meets its burden of showing that the\nstatutory exemption applies by means of affidavits.\" \nIllinois Education Ass' n v.  Illinois State\nBoard ofEducation,  204 Ill. 2d 456,  469 ( 2003).  However,  such affidavits \" will not suffice if\nthe public body' s claims are conclusory, merely recite statutory standards,  or are too vague or\nsweeping.\"  Illinois Education Ass'n,  204 Ill. 2d at 469.  Because IDOC has refused to provide\nthis office with the records in question for our confidential review,  we will determine whether\nthe response letter submitted by IDOC provides clear and convincing evidence that the withheld\nrecords are exempt from disclosure under section 7( 1)( a). \n\n\fMs. Alexandra Scott\nMr. Joel Diers\nMarch 7,  2017\n\nPage 4\n\nSection 7( 1)( a) \n\nFOIA provides that \"[ a] I1 records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying. \nhas the burden of proving by clear and convincing evidence\"  that a record is exempt from\ndisclosure.  5 ILCS 140/ 1. 2 ( West 2014). \" To meet\nthe public body must\nprovide a detailed justification for its claim of exemption, addressing the requested records\nspecifically and in a manner allowing for adequate adversarial testing.\"  Rockford Police\nBenevolent and Protective Assn,  Unit No. 6 v. Morrissey,  398 Ill. App.  3d 145,  150 ( 2nd Dist. \n2010). \n\n5 ILCS 140/ 1. 2 ( West 2014).  A public body\n\nits burden * * *, \n\nSection 7( I)( a)  of FOIA exempts from inspection and copying \"[ ijnformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\"  The General Assembly \" has authorized exemptions to the\nFOIA's expansive disclosure policy when a given disclosure is not just prohibited 'by federal or\nState law or rules and regulations adopted under federal or State law' but specifically so\nprohibited.\" ( Emphasis in original.)  Better Government Assn v. Blagojevich,  386111.  App. 3d\n808,  814 ( 4th Dist.  2008). \n\nquestion under section 7( 1)( a)  of FOIA.  Section 3- 2- 5( c)  provides: \n\nIDOC cited section 3- 2- 5( c)  of the UCC as its basis for denying the records in\n\nThe Department shall create a gang intelligence unit under\n\nthe supervision of the Director. The unit shall be specifically\ndesigned to gather information regarding the inmate gang\npopulation,  monitor the activities of gangs,  and prevent\nthe\nfurtherance of gang activities through the development and\nimplementation of policies aimed at deterring gang activity.  The\nDirector shall appoint a Corrections Intelligence Coordinator. \n\nAll information collected and maintained by the [ gang\nintelligence]  unit shall be highly confidential,  and access to that\ninformation shall be restricted by [ IDOC]. * * *  Due to the highly\nsensitive nature of the information, the information is exempt from\nrequests for disclosure under the Freedom of Information Act as\nthe information contained is highly confidential and may be\nharmful\n\nif disclosed. ( Emphasis added.) \n\nGenerally, principles of statutory construction interpret the term \"and\"  as conjunctive rather than\ndisjunctive.  City of Carbondale v. Bower, 332 Ill. App. 3d 928,  933 ( 2002),  citing People ex rel. \nAramburu v.  City of Chicago,  73 Ill.  App.  2d 184 ( 1966). \" As a general rule, the use of the\nconjunctive,  as in the word ' and,'  indicates that the legislature intended for all of the listed\n\n\fMs.  Alexandra Scott\n\nMr.  Joel Diers\nMarch 7,  2017\n\nPage 5\n\nrequirements to be met.\"  Byung Moo Soh v.  Target Marketing Systems,  Inc., 353 Ill. App. 3d\n126,  131 ( 2004). \n\nSection 3- 2- 5( c)  of the UCC provides that the gang intelligence unit is \" designed\nto gather information regarding the inmate gang population,  monitor the activities ofgangs, \nand prevent the furtherance of gang activities through the development and implementation of\npolicies aimed at deterring gang activity.\"  Section 3- 2- 5( c)  further provides that \"[ a] ll\ninformation collected and maintained by the [ gang intelligence]  unit shall be highly\nconfidential,  and access to that information shall be restricted by [ IDOC]\". ( Emphasis added.) \n\nMs. Scott does not seek information regarding the inmate gang population or gang\n\ninformation regarding the Gang Renunciation Program\n\nactivities.  Rather,  she seeks general\nincluding,  but not limited to, the structure of that program. \nIDOC' s response to this office stated\nthat the \"[ t] he information regarding renunciation sought by Ms. Scott is maintained by the gang\nintelligence unit.i3 The mere fact that the unit \"maintains\"  such general program information, \nhowever, does not mean that it is exempt from disclosure under section 3- 2- 5( c)  of the UCC. \nThe information must be both \" collected and maintained\"  by the unit to fall within the scope of\nthat provision. \n\nThere is no indication from IDOC' s response that the records it identified as\n\nresponsive to Ms.  Scott' s request included information \" collected\"  by the gang intelligence unit. \nIt seems more likely that the general program information she is seeking would have been\ncreated by the gang intelligence unit or perhaps other divisions of IDOC.  Because IDOC has\nrefused to provide this office with copies of the responsive records,  we are unable to verify the\nrecords'  origins. \nIn light of IDOC' s scant assertions and lack of supporting evidence,  this office\ncannot conclude that IDOC has met its burden of demonstrating by clear and convincing\nevidence that the records Ms. Scott sought are prohibited from being disclosed by section 3- 2- \n5( c)  of the UCC.  Accordingly, this office finds that IDOC violated FOIA by denying Ms.  Scott's\nrequest pursuant to section 7( 1)( a).  This office requests that IDOC provide Ms.  Scott with\nrecords responsive to her request for general information on the Gang Renunciation Program, \nincluding,  but not limited to the structure of the program. \n\nGeneral,  Office of the Illinois Attorney General ( December 8,  2016). \n\nLetter from Joel M.  Diers,  Freedom of Information Office, to Laura Harter, Assistant Attorney\n\n\fs. Alexandra Scott\n\nMr.  Joel Diers\n\nMarch 7,  2017\n\nPage 6\n\nThe Public Access Counselor has determined that resolution of this issue does not\nrequire the issuance of a binding opinion.  This letter shall serve to close the matter.  If you have\nany questions,  please contact me at the Springfield address listed on the first page of this letter. \nThank you. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n45170 f 71a improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A corrections department's gang renunciation program records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-45170/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nMarch 7, 2017\n\nVia electronic mail\n\nMs. Alexandra Scott\n\nMandel Legal Aid Clinic\n\n[street address redacted for site publication -- see original PDF]\najscott@uchicago.\n\nedu\n\nVia electronic mail\n\nMr. Joel M. Diers\nFreedom of Information Office\nIllinois Department of Corrections\n1301 Concordia Court\nP. O. Box 19277\n\nSpringfield, Illinois 62794- 9277\njoel. diers@doc. illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2016 PAC 45170; IDOC 16 1110066\n\nDear Ms. Scott and Mr. Diers: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois Department of Corrections (IDOC) violated\nFOIA by improperly denying Ms. Alexandra Scott's November 10, 2016, FOIA request. \n\nOn that date, Ms. Scott, on behalf of the Mandel Legal Aid Clinic, submitted a\nFOIA request to IDOC seeking \" information regarding the Illinois Department of Corrections\nGang Renunciation program under the Freedom of Information Act. I request any general\ninformation you may have, including, but not limited to the structure of the program.\"' On\nNovember 14, 2016, IDOC denied Ms. Scott's request pursuant\nILCS 140/ 7(1)(a) (West 2015 Supp.), as amended by Public Act 99- 642, effective July 28, \n2016), citing section 3- 2- 5(c) of the Unified Code of Corrections (UCC) (730 ILCS 5/ 3- 2- 5(c) \n\nto section 7(I)(a) of FOIA (5\n\nWeitekamp, \n\nLetter from Alexandra Scott, Mandel Legal Clinic, to Freedom of Information Officer Lisa\n10, 2016). \n\nIllinois Department of Corrections (November\n\nWest 2014)), which exempts information collected and maintained by the gang intelligence unit\nfrom \" disclosure under the Freedom of Information Act as the information contained is highly\nconfidential and may be harmful if disclosed.\" \nIn her Request for Review, Ms. Scott disputed\nIDOC's denial, arguing that the records she sought pertained to the structure of the Gang\nRenunciation Program, not confidential information about the particularities of inmate gang\npopulations, and therefore are not prohibited from being disclosed under section 3- 2- 5(c) of the\nUCC. \n\nOn December 7, 2016, this office forwarded a copy of the Request for Review to\nIDOC and asked it to provide the Public Access Bureau with (i) copies of any records responsive\nto Ms. Scott's request and (ii) a detailed explanation of the factual and legal bases for the\nexemptions asserted, addressing in particular whether the records sought by Ms. Scott pertaining\nto the structure of the Gang Renunciation Program were collected and maintained by the gang\nintelligence unit pursuant to the unit's responsibilities as described in section 3- 2- 5(c) of the\nUCC. On December 8, 2016, IDOC submitted a written response, but did not provide this office\nwith copies of records responsive to Ms. Scott's request. Ms. Scott did not reply. On February\n24, 2017, an assistant attorney general\nrenewing this office's request for copies of the records that were withheld for confidential\nreview. On the same day, IDOC's legal counsel responded by stating that because the records\ncontain \" highly sensitive\" information, \" the statute gives IDOC discretion on who this\ninformation gets disseminated to and [ in] this instance we cannot comply with your request.\" 2\n\nin the Public Access Bureau sent an e- mail to IDOC\n\nDETERMINATION\n\nSection 9. 5(c) \n\nreview. Section 9. 5(c) \n\nAs a threshold matter, the plain language of section 3- 2- 5(c) of the UCC cited\nbelow does not address the Request for Review process or give IDOC discretion to refuse to\nprovide copies of records to the Public Access Counselor for confidential\nof FOIA (5 ILCS 140/ 9.5(c) (West 2014)) expressly and unambiguously provides that each\npublic body \" shall provide copies of records requested and shall otherwise fully cooperate with\nthe Public Access Counselor.\" (Emphasis added.) Section 9. 5(c) does not afford IDOC\ndiscretion to disregard its statutory obligation to fully cooperate with this inquiry. The General\nAssembly clearly recognized that the Public Access Counselor must have access to all pertinent\nrecords in order to conduct a complete review of a public body's compliance with FOIA. The\nfollowing colloquy between Representative Elaine Nekritz and Representative Michael Madigan, \nthe House sponsor of the bill, during the House debate on Senate Bill 189 (which, as Public Act\n96- 542, effective January 1, 2010, created the Office of the Public Access Counselor), evinces\nthe General Assembly's intention to vest the Public Access Counselor with complete authority to\n\nI just have some questions * * * \nIt's my\n\nNekritz: Thank you Mr. Speaker. \nto clarify the legislative intent under this. * * * \nunderstanding that under this Bill, an agency's required to provide\nrecords requested by the public access counselor. What if some\nother State or Federal Law precludes disclosure of those records to\nsome other party like HIPAA, an IG report or something like that? \nHow does that * * * get resolved? \n\nMadigan: Point number one, the Attorney General will review\nthose documents in confidence. They would be kept confidential. \nPoint number two, if it were a Federal Law in conflict, why, the\nFederal Law would control. \n\nNekritz: [ A] nd if some investigating authority such as the U. S. \nAttorney asked to have that certain records not be disclosed * * * \nwhat would be the result there? \n\nMadigan: * * * [ T] he Office of the U. S. Attorney could interact\nwith the Office of the Attorney General, make a request, but the\nfinal judgment... the final decision would be made by the\nAttorney General. (Emphasis added.) Remarks of Rep. Nekritz\nand Rep. Madigan, May 27, 2009, House Debate on Senate Bill\nNo. 189, at 105. \n\nThe General Assembly clearly did not intend to allow public bodies to decide\n\nwhat records they would or would not submit for the Public Access Counselor's review. IDOC's\nrefusal to provide copies of the records in question undermines the Public Access Counselor's\nduty to conduct the type of comprehensive review that the General Assembly deemed to be\ncrucial when it enacted Public Act 96- 542. This refusal violates section 9.5(c) of FOIA (see Ill. \nAtt'y Gen. Pub. Acc. Op. No. 12- 007, issued April 2, 2012). \n\nDespite IDOC's lack of cooperation, this office will analyze the assertion of\nsection 7(1)(a) based on the limited information available for our review. A court \" need not\nconduct an in camera review where the public body meets its burden of showing that the\nstatutory exemption applies by means of affidavits.\" \nIllinois Education Ass' n v. Illinois State\nBoard ofEducation, 204 Ill. 2d 456, 469 (2003). However, such affidavits \" will not suffice if\nthe public body's claims are conclusory, merely recite statutory standards, or are too vague or\nsweeping.\" Illinois Education Ass'n, 204 Ill. 2d at 469. Because IDOC has refused to provide\nthis office with the records in question for our confidential review, we will determine whether\nthe response letter submitted by IDOC provides clear and convincing evidence that the withheld\n\nSection 7(1)(a) \n\nFOIA provides that \"[ a] I1 records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying. \nhas the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/ 1. 2 (West 2014). \" To meet\nthe public body must\nprovide a detailed justification for its claim of exemption, addressing the requested records\nspecifically and in a manner allowing for adequate adversarial testing.\" Rockford Police\nBenevolent and Protective Assn, Unit No. 6 v. Morrissey, 398 Ill. App. 3d 145, 150 (2nd Dist. \n2010). \n\n5 ILCS 140/ 1. 2 (West 2014). A public body\n\nits burden * * *, \n\nSection 7(I)(a) of FOIA exempts from inspection and copying \"[ ijnformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" The General Assembly \" has authorized exemptions to the\nFOIA's expansive disclosure policy when a given disclosure is not just prohibited 'by federal or\nState law or rules and regulations adopted under federal or State law' but specifically so\nprohibited.\" (Emphasis in original.) Better Government Assn v. Blagojevich, 386111. App. 3d\n808, 814 (4th Dist. 2008). \n\nquestion under section 7(1)(a) of FOIA. Section 3- 2- 5(c) provides: \n\nIDOC cited section 3- 2- 5(c) of the UCC as its basis for denying the records in\n\nThe Department shall create a gang intelligence unit under\n\nthe supervision of the Director. The unit shall be specifically\ndesigned to gather information regarding the inmate gang\npopulation, monitor the activities of gangs, and prevent\nthe\nfurtherance of gang activities through the development and\nimplementation of policies aimed at deterring gang activity. The\nDirector shall appoint a Corrections Intelligence Coordinator. \n\nAll information collected and maintained by the [ gang\nintelligence] unit shall be highly confidential, and access to that\ninformation shall be restricted by [ IDOC]. * * * Due to the highly\nsensitive nature of the information, the information is exempt from\nrequests for disclosure under the Freedom of Information Act as\nthe information contained is highly confidential and may be\nharmful\n\nif disclosed. (Emphasis added.) \n\nGenerally, principles of statutory construction interpret the term \"and\" as conjunctive rather than\ndisjunctive. City of Carbondale v. Bower, 332 Ill. App. 3d 928, 933 (2002), citing People ex rel. \nAramburu v. City of Chicago, 73 Ill. App. 2d 184 (1966). \" As a general rule, the use of the\nconjunctive, as in the word ' and,' indicates that the legislature intended for all of the listed\n\nrequirements to be met.\" Byung Moo Soh v. Target Marketing Systems, Inc., 353 Ill. App. 3d\n126, 131 (2004). \n\nSection 3- 2- 5(c) of the UCC provides that the gang intelligence unit is \" designed\nto gather information regarding the inmate gang population, monitor the activities ofgangs, \nand prevent the furtherance of gang activities through the development and implementation of\npolicies aimed at deterring gang activity.\" Section 3- 2- 5(c) further provides that \"[ a] ll\ninformation collected and maintained by the [ gang intelligence] unit shall be highly\nconfidential, and access to that information shall be restricted by [ IDOC]\". (Emphasis added.) \n\nMs. Scott does not seek information regarding the inmate gang population or gang\n\ninformation regarding the Gang Renunciation Program\n\nactivities. Rather, she seeks general\nincluding, but not limited to, the structure of that program. \nIDOC's response to this office stated\nthat the \"[ t] he information regarding renunciation sought by Ms. Scott is maintained by the gang\nintelligence unit.i3 The mere fact that the unit \"maintains\" such general program information, \nhowever, does not mean that it is exempt from disclosure under section 3- 2- 5(c) of the UCC. \nThe information must be both \" collected and maintained\" by the unit to fall within the scope of\nthat provision. \n\nThere is no indication from IDOC's response that the records it identified as\n\nresponsive to Ms. Scott's request included information \" collected\" by the gang intelligence unit. \nIt seems more likely that the general program information she is seeking would have been\ncreated by the gang intelligence unit or perhaps other divisions of IDOC. Because IDOC has\nrefused to provide this office with copies of the responsive records, we are unable to verify the\nrecords' origins. \nIn light of IDOC's scant assertions and lack of supporting evidence, this office\ncannot conclude that IDOC has met its burden of demonstrating by clear and convincing\nevidence that the records Ms. Scott sought are prohibited from being disclosed by section 3- 2- \n5(c) of the UCC. Accordingly, this office finds that IDOC violated FOIA by denying Ms. Scott's\nrequest pursuant to section 7(1)(a). This office requests that IDOC provide Ms. Scott with\nrecords responsive to her request for general information on the Gang Renunciation Program, \nincluding, but not limited to the structure of the program. \n\nGeneral, Office of the Illinois Attorney General (December 8, 2016). \n\nLetter from Joel M. Diers, Freedom of Information Office, to Laura Harter, Assistant Attorney\n\nThe Public Access Counselor has determined that resolution of this issue does not\nrequire the issuance of a binding opinion. This letter shall serve to close the matter. If you have\nany questions, please contact me at the Springfield address listed on the first page of this letter. \nThank you. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n45170 f 71a improper sa"}
{"id":888,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-02-09","case_number":null,"request_numbers":["45372"],"title":"Chicago Police Department lawfully charged copying fee after initially deeming request unduly burdensome","filename":"45372, issued February 9, 2017.pdf","rel_path":null,"word_count":1650,"summary":"A requester challenged the Chicago Police Department's imposition of a $334 copying fee for crime scene photographs, arguing the fee was improper. The PAC determined that the Department properly charged for the copies under section 6(b) of FOIA after initially treating the request as unduly burdensome.","plain_summary":"A requester asked the Chicago Police Department for numerous complaint records and crime scene photos. The Department initially denied the request as too large but later offered to provide the photos for a $334 copying fee, which the requester challenged. The Attorney General's office found that the Department followed the law and was permitted to charge the actual cost of reproducing the requested photographs.","holding":"The Chicago Police Department did not improperly impose copying fees for the requested records.","legal_question":"Whether a public body may charge a fee for the reproduction of records after initially asserting that a request was unduly burdensome.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Police Department","requesting_party":"an inmate at Pontiac Correctional Center","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester challenged the imposition of copying fees for crime scene photographs provided by the police department.","ocr_status":"ok","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/45372%2C%20issued%20February%209%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","copying costs","unduly burdensome","police records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nFebruary 9,  2017\n\nPontiac Correctional Center\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\nMsl Charise Valente,  General Counsel\nChicago Police Department\n\npacola@chicagopolice. org\n\nRE:  Request\n\nfor Review — 2016 PAC 45372\n\nDear\nI ' \n\nand Ms.  Valente: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2014)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the Chicago Police Department (CPD)  did not improperly\nimpose copying fees in response to a FOIA request from\n\nOn October 17,  2016, \n\nsubmitted a FOIA request to CPD seeking all\ncomplaint registers ( CR) filed againstnine specified officers and all crime scene photographs of\nthe homicides at 6120 South Hermitage,  Chicago,  Illinois 60636 on April 4,  2008.  On October\nrequest as unduly burdensome under section 3( g)  of FOIA\n26,  2016, CPD denied\n5 ILCS 140/ 3( g) ( West 2014)).  CPD stated that there are 154 CR log numbers responsive to his\nrequest and each log number averages 5- 100 pages of records.  CPD provided\nwith\ncopies of 18 pages of CR report listings and forms to assist him should he choose to narrow his\nrequest.  CPD also stated thai it had forwarded his request for crime scene: photographs to its lab\nin the forensic division and would notify him if it located any photographs responsive to his\nrequest.  On November 7,  2016,  CPD notified\nthat were available to him and that it would provide\nupon receipt of a check or money order for $334. 00.  On December 5,  2016, \nsubmitted this Request for Review asserting that CPD was prohibited from imposing a fee for\ncopies of the 334 photographs because it did not respond to his request within 5 business days\n\nthat it had located 334 photographs\nwith copies of the photographs\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 2 7)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 3 2) 814- 3374..  Fax: ( 312) 814-3806\n100 West Randolph Street,  Chicago,  Illinois, 60601 • (\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Charise Valente\nFebruary 9,  2017\nPage 2\n\ni\n\nafter receipt of his request. \nCPD' s responses to his FOIA request.  The envelopes showed that CPD' s October 26,  2016,  letter\nwas postmarked on October 28,  2016, and CPD' s November 7,  2016,  letter was postmarked on\nNovember 10,  2016.' \n\nalso enclosed copies of the envelopes that contained\n\nOn December 19,  2016,  this office forwarded a copy of the Request for Review to\n\nrequest,  and requested\n\nwas due on October 28,  2016.  CPD stated that it denied\n\nCPD,  requested that it explain its receipt and handling of\nthat it clarify the date CPD received the request.  On January 29,  2017,  CPD responded by\nstating that it received\n\nFOIA request on October 21,  2016,  and that its response to\nFOIA request\nwithin 5 business days of receiving his request.  CPD stated that sent its November 7,  2016,  letter\nlisting the \" number of photographs and [ the]  fee that would be charged[ ]  to assist\nto\nhim in narrowing his request\nnarrowing his request.. Ori.February 1,  2016,  this\nreceived any correspondence from\noffice forwarded a copy of the CPR's response to\nHe replied on February 6, 2016, \nasserting that CPD only denied Part 1 of his FOIA request as unduly burdensome,  and that it did\nnot respond to Parts 2 and 3 of his request within 5 business days. \nasserted that CPD\nshould have extended the time for response by 5 business days under section 3( e)  of FOIA ( 5\nILLS 140/ 3( e) ( West 2014))  if it needed additional time to respond to Parts 2 and 3 of his\n\nto Parts 2 and 3 if he wished to do so.\"'  CPD stated it had not\n\nrequest. -. \n\nDETERMINATION. \n\nSection 3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2014))  provides that \"[ e] ach public\n\nbody shall make available to any person for inspection or copying all public records, except as\notherwise provided in Sections 7 and' 8. 5 `of this Act.\"  Section 3( d)  of FOIA ( 5 ILCS 140/ 3( d) \nWest 2014))  states that a public body shall \" either comply with or deny, a request for public\nrecords within 5 business days after ifs receipt of the request[.]\" \n\nSection 3( d)  further states that\na]  public body that fails to respond to a request within the requisite periods in this Section but\n\nthereafter provides the requester with copies of the requested public records may not impose a\nfee for such copies.\"  Section 6( b)  of FOIA ( 5 ILCS 140/ 6( b) ( West 2014)),  which concerns fees\nfor copies,  provides,  in pertinent; part: ; \n\ndemonstrated that the\nresponse letter was not postmarked until October 28,  2016.  Accordingly,  for the purposes of this determination, \noffice will refer to CPD' s letter by the date it ivaspostmarked. \n\n1CPD states that its response was sent on October 26,  2016. \n\nthis\n\nAffairs,  to Matt Hartman,  Assistant Attorney General,  Public Access Bureau ( January 29,  2017),  at 1. \n\n2Letter from Wendi P.  Lis's,  Associate Staff Attorney,  Chicago Police Department,  Office of Legal\n\n\fMs. Charise Valente\n\nFebruary 9,  2017\nPage 3\n\nExcept when a fee is otherwise fixed by statute,  each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person,  of the equipment of the public body to copy\nrecords.  No fees shall be charged for the first 50 pages of black\nand white,  letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall not\nexceed 15 cents per page.  If a public body provides copies in color\nor in a size other than letter or legal,  the public body may not\ncharge more than its actual cost for reproducing the records. \n\nasserted that CPD may not impose a fee for copies of the crime scene\n\nphotographs because it failed to respond to that portion of his request within 5 business days\nafter receiving his request.  It is undisputed that CPD denied Part 1 of\nrequest as unduly burdensome under section 3( g)  of FOIA within 5 business days of receiving\nthe request.  The resolution of this matter hinges on whether CPD' s October 28,  2016,  unduly\nburdensome denial applied to Parts 2 and 3 of\n\nrequest. \n\nFOIA\n\nSection 3( g)  of,FOIA provides: \n\nRequests calling for all records falling within a category\n\nshall be complied withrunless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information.  Before invoking\nthis exemption,; the .public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions.  If any public body\nresponds to a categorical request by stating that compliance would\nunduly burden its operation and the conditions described above are\nmet,  it shall do so in writing,  specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance, will so\nburden the operations of the public body.  Such a response shall be\ntreated as a denial of the request\n\nfor information. \n\nThe plain language of section 3( g)  of FOIA states that a public body may treat a\nFOIA request as unduly burdensome if it is categorical and if the burden on the public body of\ncomplying with the request outweighs the public interest\nin the information.  Section 3( g)  does\nnot require a public body to individually assess whether each portion a request seeking\nmultiple types of records is unduly burdensome.  Instead,  if compliance with the request as a\n\n\fMs. Charise Valente\nFebruary 9,  2017\nPage 4\n\nis unduly burdensome, \nwhole or any portion of the request\nunder section 3( g)  of FOIA.  CPD' s October 28,  2016,  response letter recites the entire text of\n\nthen the entire request may be denied\n\nFOIA request and then states \"[ y]our request was reviewed by the undersigned and\nthe Bureau of Internal Affairs ( BIA).  Your request as written is unduly burdensome,  as the BIA\ndetermined that there are over 500 pages of records responsive to your request. i3 Thus,  CPD' s\ndenial of\nrequest under section 3( g)  applied to his, entire request.  Accordingly, \nCPD' s subsequent correspondence to\nresponse to his request, but an attempt to assist him with narrowing his request.  Because CPD\nresponded to the request for crime scene photographs and other records within 5 business days\nafter its receipt,  we conclude that CPD, may impose fees for copies in accordance with section\n6( b)  of FOIA.  If\nwishes to receive copies of the cnme scene photographs,  he may\nwish to submit a narrowed request to CPD and tender the appropriate sum to reimburse CPD's\nactual cost of reproducing the photographs. \n\nof photographs was not a late\n\nabout the\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter serves to close this file.  If you have\nany questions,  please contact me at ( 217)  782- 9054 listed on the first page of this letter. \n\nVery truly ours, \n\n1\" 1 I RTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n45372 6b fee proper pd\n\nof Legal Affairs,  to\n\nOctober 28,  2016),  at 1. \n\n3Letter from P.O. Sanders # 13769, Freedom of Information Officer, Department of Police, Office\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Copying fees for crime scene photographs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-45372/","full_text":"FFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nFebruary 9, 2017\n\nPontiac Correctional Center\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\nMsl Charise Valente, General Counsel\nChicago Police Department\n\npacola@chicagopolice. org\n\nRE: Request\n\nfor Review — 2016 PAC 45372\n\nDear\nI ' \n\nand Ms. Valente: \n\nThis determination letter is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) did not improperly\nimpose copying fees in response to a FOIA request from\n\nOn October 17, 2016, \n\nsubmitted a FOIA request to CPD seeking all\ncomplaint registers (CR) filed againstnine specified officers and all crime scene photographs of\nthe homicides at 6120 South Hermitage, Chicago, Illinois 60636 on April 4, 2008. On October\nrequest as unduly burdensome under section 3(g) of FOIA\n26, 2016, CPD denied\n5 ILCS 140/ 3(g) (West 2014)). CPD stated that there are 154 CR log numbers responsive to his\nrequest and each log number averages 5- 100 pages of records. CPD provided\nwith\ncopies of 18 pages of CR report listings and forms to assist him should he choose to narrow his\nrequest. CPD also stated thai it had forwarded his request for crime scene: photographs to its lab\nin the forensic division and would notify him if it located any photographs responsive to his\nrequest. On November 7, 2016, CPD notified\nthat were available to him and that it would provide\nupon receipt of a check or money order for $334. 00. On December 5, 2016, \nsubmitted this Request for Review asserting that CPD was prohibited from imposing a fee for\ncopies of the 334 photographs because it did not respond to his request within 5 business days\n\nthat it had located 334 photographs\nwith copies of the photographs\n\ni\n\nafter receipt of his request. \nCPD's responses to his FOIA request. The envelopes showed that CPD's October 26, 2016, letter\nwas postmarked on October 28, 2016, and CPD's November 7, 2016, letter was postmarked on\nNovember 10, 2016.' \n\nalso enclosed copies of the envelopes that contained\n\nOn December 19, 2016, this office forwarded a copy of the Request for Review to\n\nrequest, and requested\n\nwas due on October 28, 2016. CPD stated that it denied\n\nCPD, requested that it explain its receipt and handling of\nthat it clarify the date CPD received the request. On January 29, 2017, CPD responded by\nstating that it received\n\nFOIA request on October 21, 2016, and that its response to\nFOIA request\nwithin 5 business days of receiving his request. CPD stated that sent its November 7, 2016, letter\nlisting the \" number of photographs and [ the] fee that would be charged[ ] to assist\nto\nhim in narrowing his request\nnarrowing his request.. Ori.February 1, 2016, this\nreceived any correspondence from\noffice forwarded a copy of the CPR's response to\nHe replied on February 6, 2016, \nasserting that CPD only denied Part 1 of his FOIA request as unduly burdensome, and that it did\nnot respond to Parts 2 and 3 of his request within 5 business days. \nasserted that CPD\nshould have extended the time for response by 5 business days under section 3(e) of FOIA (5\nILLS 140/ 3(e) (West 2014)) if it needed additional time to respond to Parts 2 and 3 of his\n\nto Parts 2 and 3 if he wished to do so.\"' CPD stated it had not\n\nrequest. -. \n\nDETERMINATION. \n\nSection 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2014)) provides that \"[ e] ach public\n\nbody shall make available to any person for inspection or copying all public records, except as\notherwise provided in Sections 7 and' 8. 5 `of this Act.\" Section 3(d) of FOIA (5 ILCS 140/ 3(d) \nWest 2014)) states that a public body shall \" either comply with or deny, a request for public\nrecords within 5 business days after ifs receipt of the request[.]\" \n\nSection 3(d) further states that\na] public body that fails to respond to a request within the requisite periods in this Section but\n\nthereafter provides the requester with copies of the requested public records may not impose a\nfee for such copies.\" Section 6(b) of FOIA (5 ILCS 140/ 6(b) (West 2014)), which concerns fees\nfor copies, provides, in pertinent; part:; \n\ndemonstrated that the\nresponse letter was not postmarked until October 28, 2016. Accordingly, for the purposes of this determination, \noffice will refer to CPD's letter by the date it ivaspostmarked. \n\n1CPD states that its response was sent on October 26, 2016. \n\nthis\n\nAffairs, to Matt Hartman, Assistant Attorney General, Public Access Bureau (January 29, 2017), at 1. \n\n2 Letter from Wendi P. Lis's, Associate Staff Attorney, Chicago Police Department, Office of Legal\n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\nand white, letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall not\nexceed 15 cents per page. If a public body provides copies in color\nor in a size other than letter or legal, the public body may not\ncharge more than its actual cost for reproducing the records. \n\nasserted that CPD may not impose a fee for copies of the crime scene\n\nphotographs because it failed to respond to that portion of his request within 5 business days\nafter receiving his request. It is undisputed that CPD denied Part 1 of\nrequest as unduly burdensome under section 3(g) of FOIA within 5 business days of receiving\nthe request. The resolution of this matter hinges on whether CPD's October 28, 2016, unduly\nburdensome denial applied to Parts 2 and 3 of\n\nrequest. \n\nFOIA\n\nSection 3(g) of,FOIA provides: \n\nRequests calling for all records falling within a category\n\nshall be complied withrunless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption,; the.public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body\nresponds to a categorical request by stating that compliance would\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance, will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request\n\nfor information. \n\nThe plain language of section 3(g) of FOIA states that a public body may treat a\nFOIA request as unduly burdensome if it is categorical and if the burden on the public body of\ncomplying with the request outweighs the public interest\nin the information. Section 3(g) does\nnot require a public body to individually assess whether each portion a request seeking\nmultiple types of records is unduly burdensome. Instead, if compliance with the request as a\n\nis unduly burdensome, \nwhole or any portion of the request\nunder section 3(g) of FOIA. CPD's October 28, 2016, response letter recites the entire text of\n\nthen the entire request may be denied\n\nFOIA request and then states \"[ y]our request was reviewed by the undersigned and\nthe Bureau of Internal Affairs (BIA). Your request as written is unduly burdensome, as the BIA\ndetermined that there are over 500 pages of records responsive to your request. i3 Thus, CPD's\ndenial of\nrequest under section 3(g) applied to his, entire request. Accordingly, \nCPD's subsequent correspondence to\nresponse to his request, but an attempt to assist him with narrowing his request. Because CPD\nresponded to the request for crime scene photographs and other records within 5 business days\nafter its receipt, we conclude that CPD, may impose fees for copies in accordance with section\n6(b) of FOIA. If\nwishes to receive copies of the cnme scene photographs, he may\nwish to submit a narrowed request to CPD and tender the appropriate sum to reimburse CPD's\nactual cost of reproducing the photographs. \n\nof photographs was not a late\n\nabout the\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nany questions, please contact me at (217) 782- 9054 listed on the first page of this letter. \n\nVery truly ours, \n\n1\" 1 I RTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n45372 6b fee proper pd\n\nof Legal Affairs, to\n\nOctober 28, 2016), at 1. \n\n3 Letter from P.O. Sanders # 13769, Freedom of Information Officer, Department of Police, Office"}
{"id":889,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-05-02","case_number":null,"request_numbers":["46913"],"title":"Village of Cambridge violated FOIA by not providing electronic copies of records","filename":"46913, issued May 2, 2017.pdf","rel_path":null,"word_count":1321,"summary":"The requester sought various financial and administrative records from the Village of Cambridge, which the PAC determined the Village failed to properly provide. The PAC concluded the Village must provide electronic copies where available and clarify copying costs for hard-copy records.","plain_summary":"A citizen requested several years of financial and administrative documents from the Village of Cambridge. The Attorney General's office found that the Village violated FOIA by failing to provide electronic copies of records it maintained electronically, but its response was proper for records kept only in hardcopy. The Village's fee schedule—first 50 pages free, then $0.15 per page—was found to comply with FOIA. The Village was directed to provide the electronic records and to inform the requester of the cost for hardcopy records.","holding":"The Village of Cambridge violated section 6(a) of FOIA by failing to provide electronic copies of records it maintained electronically, but its fee schedule and handling of hardcopy-only records did not violate FOIA.","legal_question":"Whether the Village of Cambridge violated FOIA by failing to provide responsive records in the requested format and by failing to properly communicate fee requirements.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Cambridge","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought access to various municipal financial reports, budgets, and ordinances.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a/46913%2C%20issued%20May%202%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","electronic records","copying costs","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMay 2,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Dwaine VanMeenen\nVillage Administrator\n\nVillage of Cambridge\n\n124 West Exchange\nCambridge,  Illinois 61238\n\nadmnvoc@gmail. com\n\nRE:  FOIA Request\n\nfor Review — 2017 PAC 46913\n\nDear\n\nand Mr. VanMeenen: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2014)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Cambridge ( Village) violated FOIA in its\ns January 17,  2017 FOIA request. \nresponse to\n\nOn that date, \n\nto the Village seeking the\nfollowing categories of records for years 2013,  2014,  2015,  2016 to present:  appropriation\nordinances,  financial\nresolutions. \nwebsite as \" immediately available.\"  On January 17,  2017,  the Village sought clarification from\n\nreports,  board policies,  paid expenses,  external audit reports,  budgets,  and\n\ncontended that these categories of information were listed on the Village' s\n\nsubmitted a FOIA request\n\nregarding his request.  Among other things,  it noted that it would supply electronic\n\ncopies where available,  but that not all of the requested records were available in an electronic\nformat.  The Village wrote, \" Ulf you are looking for hard copies there will be a charge for this as\nyou know and we will let you know what the cost will be?\"'  On January 18,  2017, \n\nE- mail\n\nfrom Dwaine VanMeenen to\n\nJanuary 17,  2017). \n\n500 South Second Street,  Springfield,  Illinois 62701 • (\n100 West Randolph Street,  Chicago,  Illinois 60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785- 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Dwaine VanMeenen\nMay 2,  2017\nPage 2\n\nreplied that \" [u] nless only available otherwise,  the requester seeks any and all responsive records\nas specified in the FOIA Request * * * \nthat PDF or JPEG format was preferable.  He noted that he could not find a fee schedule or\nnotice regarding copying costs and requested that the Village advise him of any costs the Village\nmust impose to provide the responsive records.  On January 24, 2017, the Village granted\n\nto be provided in an electronic format. i2 He specified\n\ns request, providing PDF versions of external audit reports and informing\n\nthat\nhardcopies of records responsive to the other portions of his request were available for pickup. \ns request, the Village made 467 copies;  the first 50 pages were free, \nIn responding to\nbut the remaining 417 copies cost $ 62. 55,  based on a fee of $0. 15 per page.  On March 15,  2017, \n\nsubmitted this Request for Review contesting the Village' s response to his FOIA\n\nrequest.  Specifically, \navailable in an electronic format and challenged the charges that the Village sought to impose for\n\nalleged that many of the responsive records should have been\n\ncopies. \n\nOn March 22,  2017,  this office sent a copy of the Request for Review to the\ns allegation that the Village did not provide the\n\nVillage and asked it to respond to\nrecords in the format that he requested.  We asked the Village to clarify whether the requested\nrecords,  aside from the external audit report,  were maintained in an electronic format and if so, \nelectronically.  On March 31,  2017, \nwhether it was feasible to provide the records to\nthe Village responded,  explaining that it could provide appropriation ordinances,  financial\nreports,  paid expense lists,  and budgets in an electronic format. \nIt indicated that board policies\nand resolutions were maintained in hardcopy format only.  The Village explained that it would\nprovide the first 50 pages of copies for free and that any additional pages would cost $0. 15 per\npage.  On April 12,  2017, \n\nreplied. \n\nDETERMINATION\n\nSection 3( b)  of FOIA ( 5 ILCS 140/ 3( b) ( West 2014))  provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\npublic body shall promptly provide,  to any person who submits a\nrequest,  a copy of any public record required to be disclosed by\nsubsection ( a)  of this Section and shall certify such copy if so\nrequested. \n\nAdditionally,  section 6( a)  of FOIA ( 5 ILCS 140/ 6( a) ( West 2014)  provides: \n\nE- mail\n\nfrom\n\nto Dwaine VanMeenen ( January 18,  2017). \n\n\fMr. Dwaine VanMeenen\nMay 2,  2017\nPage 3\n\nWhen a person requests a copy of a record maintained in\n\nan electronic format,  the public body shall furnish it in the\nelectronic format specified by the requester,  if feasible.  If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body,  or in paper format at the option\nof the requester. ( Emphasis added.) \n\nelectronically,  if feasible.  However,  because the Village does not\n\nUnder the plain language of section 6( a),  if the Village maintained the appropriation ordinances, \nfinancial reports,  paid expense lists,  and budgets in an electronic format,  it was required to\nprovide them to\nmaintain the board policies and resolutions in an electronic format, it was not required to provide\nthose records electronically.  See Ill. Att' y Gen. PAC Req.  Rev.  Ltr. 28697,  issued April 18, \n2014,  at 2 (\" The plain language of section 6( a)  requires a public body to provide records in\nelectronic format ifthe public body maintains those records in electronic format.  This office has\npreviously determined that section 6( a)  does not require a public body to furnish in electronic\nformat records maintained solely in paper format, even if the public body has the resources to\nreproduce those records in PDF.\" ( Emphasis in original.).  Accordingly,  this office finds that the\nVillage violated section 6( a)  of FOIA with regard to the records maintained electronically,  but its\nresponse was proper regarding the records maintained only in hardcopy. \n\nFOIA ( 5 ILCS 140/ 6( b) ( West 2014))  sets forth the general\n\nfee provisions for FOIA requests: \n\nalso challenges the Village' s fee schedule for copies.  Section 6( b)  of\n\nExcept when a fee is otherwise fixed by statute,  each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person,  of the equipment of the public body to copy\nrecords.  No fees shall be charged for the first 50 pages of black and\nwhite,  letter or legal sized copies requested by a requester.  The fee\nfor black and white,  letter or legal sized dopies shall not exceed 15\ncents per page. \n\nThe Village has indicated that it will provide the first 50 pages of copies for free, but that it will\ncharge $ 0. 15 per page for any additional pages.  Those fees are authorized by section 6( b)  of\nFOIA.  Accordingly,  this office concludes that the Village' s fee schedule does not violate the\nrequirements of FOIA. \n\nIn conclusion,  this office requests that the Village ( 1)  provide\n\nwith\n\nelectronic copies of the records responsive to his request that are maintained electronically,  and\n\n\fMr. Dwaine VanMeenen\nMay 2,  2017\nPage 4\n\n2)  inform\n\nof the cost of copying the responsive records maintained in hardcopy and, if\n\nconsents to pay the applicable fees, to provide him those records. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at the Springfield address on the first page of this letter or at\n217)  524- 7958. \n\nVery truly yours, \n\nLAURA S.  HARTER\nAssistant Attorney General\nPublic Access Bureau\n\n46913 f 6a improper proper 6b proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Municipal financial reports, budgets, and ordinances","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-46913/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMay 2, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Dwaine VanMeenen\nVillage Administrator\n\nVillage of Cambridge\n\n124 West Exchange\nCambridge, Illinois 61238\n\nadmnvoc@gmail. com\n\nRE: FOIA Request\n\nfor Review — 2017 PAC 46913\n\nDear\n\nand Mr. VanMeenen: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Cambridge (Village) violated FOIA in its\ns January 17, 2017 FOIA request. \nresponse to\n\nOn that date, \n\nto the Village seeking the\nfollowing categories of records for years 2013, 2014, 2015, 2016 to present: appropriation\nordinances, financial\nresolutions. \nwebsite as \" immediately available.\" On January 17, 2017, the Village sought clarification from\n\nreports, board policies, paid expenses, external audit reports, budgets, and\n\ncontended that these categories of information were listed on the Village's\n\nsubmitted a FOIA request\n\nregarding his request. Among other things, it noted that it would supply electronic\n\ncopies where available, but that not all of the requested records were available in an electronic\nformat. The Village wrote, \" Ulf you are looking for hard copies there will be a charge for this as\nyou know and we will let you know what the cost will be?\"' On January 18, 2017, \n\nE- mail\n\nfrom Dwaine VanMeenen to\n\nJanuary 17, 2017). \n\nreplied that \" [u] nless only available otherwise, the requester seeks any and all responsive records\nas specified in the FOIA Request * * * \nthat PDF or JPEG format was preferable. He noted that he could not find a fee schedule or\nnotice regarding copying costs and requested that the Village advise him of any costs the Village\nmust impose to provide the responsive records. On January 24, 2017, the Village granted\n\nto be provided in an electronic format. i2 He specified\n\ns request, providing PDF versions of external audit reports and informing\n\nthat\nhardcopies of records responsive to the other portions of his request were available for pickup. \ns request, the Village made 467 copies; the first 50 pages were free, \nIn responding to\nbut the remaining 417 copies cost $ 62. 55, based on a fee of $0. 15 per page. On March 15, 2017, \n\nsubmitted this Request for Review contesting the Village's response to his FOIA\n\nrequest. Specifically, \navailable in an electronic format and challenged the charges that the Village sought to impose for\n\nalleged that many of the responsive records should have been\n\ncopies. \n\nOn March 22, 2017, this office sent a copy of the Request for Review to the\ns allegation that the Village did not provide the\n\nVillage and asked it to respond to\nrecords in the format that he requested. We asked the Village to clarify whether the requested\nrecords, aside from the external audit report, were maintained in an electronic format and if so, \nelectronically. On March 31, 2017, \nwhether it was feasible to provide the records to\nthe Village responded, explaining that it could provide appropriation ordinances, financial\nreports, paid expense lists, and budgets in an electronic format. \nIt indicated that board policies\nand resolutions were maintained in hardcopy format only. The Village explained that it would\nprovide the first 50 pages of copies for free and that any additional pages would cost $0. 15 per\npage. On April 12, 2017, \n\nreplied. \n\nDETERMINATION\n\nSection 3(b) of FOIA (5 ILCS 140/ 3(b) (West 2014)) provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\npublic body shall promptly provide, to any person who submits a\nrequest, a copy of any public record required to be disclosed by\nsubsection (a) of this Section and shall certify such copy if so\n\nWhen a person requests a copy of a record maintained in\n\nan electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. (Emphasis added.) \n\nelectronically, if feasible. However, because the Village does not\n\nUnder the plain language of section 6(a), if the Village maintained the appropriation ordinances, \nfinancial reports, paid expense lists, and budgets in an electronic format, it was required to\nprovide them to\nmaintain the board policies and resolutions in an electronic format, it was not required to provide\nthose records electronically. See Ill. Att' y Gen. PAC Req. Rev. Ltr. 28697, issued April 18, \n2014, at 2 (\" The plain language of section 6(a) requires a public body to provide records in\nelectronic format ifthe public body maintains those records in electronic format. This office has\npreviously determined that section 6(a) does not require a public body to furnish in electronic\nformat records maintained solely in paper format, even if the public body has the resources to\nreproduce those records in PDF.\" (Emphasis in original.). Accordingly, this office finds that the\nVillage violated section 6(a) of FOIA with regard to the records maintained electronically, but its\nresponse was proper regarding the records maintained only in hardcopy. \n\nFOIA (5 ILCS 140/ 6(b) (West 2014)) sets forth the general\n\nfee provisions for FOIA requests: \n\nalso challenges the Village's fee schedule for copies. Section 6(b) of\n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized dopies shall not exceed 15\ncents per page. \n\nThe Village has indicated that it will provide the first 50 pages of copies for free, but that it will\ncharge $ 0. 15 per page for any additional pages. Those fees are authorized by section 6(b) of\nFOIA. Accordingly, this office concludes that the Village's fee schedule does not violate the\nrequirements of FOIA. \n\nIn conclusion, this office requests that the Village (1) provide\n\nwith\n\nelectronic copies of the records responsive to his request that are maintained electronically, and\n\n2) inform\n\nof the cost of copying the responsive records maintained in hardcopy and, if\n\nconsents to pay the applicable fees, to provide him those records. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter or at\n217) 524- 7958. \n\nVery truly yours, \n\nLAURA S. HARTER\nAssistant Attorney General\nPublic Access Bureau\n\n46913 f 6a improper proper 6b proper mun"}
{"id":890,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-08-10","case_number":null,"request_numbers":["47187"],"title":"Perry County Sheriff's Office did not violate FOIA over former employee's personal records","filename":"47187, issued August 10, 2017.pdf","rel_path":null,"word_count":1707,"summary":"The requester sought various records regarding a former deputy, including personal electronic communications, and the PAC determined the Sheriff's Office conducted an adequate search for records in its possession.","plain_summary":"A citizen requested records about a former deputy, including private text messages and emails. The Attorney General's office found that the Sheriff's Office did not break the law because they provided all the records they actually had and tried to ask the former employee for the personal records, even though they lacked the legal power to force him to turn them over.","holding":"The Sheriff's Office did not violate FOIA because it disclosed all responsive records in its custody and attempted to obtain records from the former employee.","legal_question":"Did the Sheriff's Office conduct an adequate search for records under FOIA when it failed to produce personal electronic communications of a former employee?","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Perry County Sheriff's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought investigative files, work schedules, and personal electronic communications of a former deputy sheriff.","ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Personal-Accounts/47187%2C%20issued%20August%2010%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","adequate search","personal devices","former employee"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust\n\n10,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr.  Martin M.  Beltz\n\nFOIA Officer\n\nPerry County Government\n\n1 Public Square\n\nPinckneyville,  Illinois 62274\n\nperrycountyfoia@gmail.\n\ncom\n\nRE:  FOIA Request for Review — 2017 PAC 47187\n\nDear\n\nand Mr.  Beltz: \n\nThis determination is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons stated below,  the\nPublic Access Bureau concludes that the response by the Sheriffs Office ( Sheriff' s Office)  to\n\nMarch 6,  2017,  FOIA request did not violate FOIA. \n\nOn that date, \n\nsubmitted a six -part FOIA request\n\nto the Sheriffs Office\nseeking various records regarding a former deputy,  including: (\n1)  any complaints made against\nthe deputy alleging inappropriate communications with any minor( s); ( 2)  records showing any\nspecific dialogue, exchanged between the deputy and any minor( s); ( 3)  documents regarding the\nSheriffs Office' s investigation of any such complaints; ( 4)  the complete work schedule for the\ndeputy for a specific timeframe; ( 5)  records pertaining to the deputy being assigned to the\nposition of the school resource officer along with documents regarding suspensions, \nreassignments,  and resignation of the deputy,  and ( 6)  a request for the following: \n\nA] II electronic communications, \nmessages from both department -issued and personal cellphones of\n\nincluding cellphone text\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Martin M.  Beltz\n\nAugust 10,  2017' \n\nPage 2\n\nnamed deputy],  email messages from both department issued and\npersonal email accounts of [named deputy],  Facebook messages\nfrom both department\nof [named deputy],  sent and received by [ named deputy]  during all\ntimes he was on duty as the Perry County Resource Officer. [II\n\nissued and personal Facebook accounts * * * \n\nOn March 13,  2017,  the Sheriffs Office responded by providing\n\nwith\n\nsome responsive records? \n\nRegarding part six of the request,  the Sheriffs Office provided\n\ndocuments from the department - issued cell phone and pages from the Sheriffs Office' s School\nResource Facebook page.  However,  the Sheriffs Office indicated any records from the deputy' s\npersonal accounts did not meet the definition of public records under FOIA because the Sheriffs\nOffice never possessed or controlled such records.  On March 31,  2017, \nRequest for Review alleging that the Sheriffs Office failed to produce all records responsive to\nhis request. \n\nfiled this\n\nOn April 6,  2017,  this office forwarded a copy of the Request for Review to the\nallegation that its response to the request\n\nIn addition,  this office requested that the Sheriffs Office provide a detailed\n\nSheriff' s Office and asked it to respond to\nwas incomplete.\ndescription of the measures taken by the Sheriffs Office to search for records responsive to each\npart of\nthe\nmethod of the search,  and the individuals who were consulted.  Also,  this office asked the\nSheriffs Office to provide the factual and legal bases for the Sheriffs Office' s assertion that any\nresponsive records from the deputy' s personal accounts did not meet the definition of a public\nrecord under FOIA. \n\nrequest,  including the specific recordkeeping systems that were searched, \n\nOn April 24,  2017,  this office received the Sheriff' s Office's response in which the\n\nSherriffs Office maintained that it had provided\npossession.  However,  the Sherriffs Office response also indicated that after receiving the\nRequest\nrequesting that he inform the Sheriffs Office if he possessed any records responsive to\n\nfor Review from this office,  it sent a letter to the former -deputy on April 24,  2017, \n\nwith all the responsive records in its\n\nrequest,  and if so,  to provide copies of the records to the Sheriff' s Office by May 5,  2017. \n\nOn April 25,  201/, \n\nthis office forwarded the Sheriffs Office' s response to\n\nhe replied\n\nMarch 6,  2017). \n\nLetter from\n\nto Steve Bareis,  Perry County Sheriff, Perry County Sheriffs Office\n\n2Certain portions of the provided responsive records were redacted pursuant\n7( 1)( 6),  and 7( 1)( c)  of FOIA ( 5 ILCS 140/ 7( I)( a), (\nI)( b), (\nhowever,  does not dispute the redactions to the records provided to him.  Therefore,  the scope of this review is\nlimited to whether the measures performed by the Sheriffs Office appear to be reasonably calculated to locate all\n\nto sections 7( 1)(\nRequest for Review, \n\nI)( c) ( West 2016)). \n\na), \n\nrecords\n\nresponsive to\n\nrequest. \n\n\fMr. Martin M.  Beltz\n\nAugust\n\n10,  2017\n\nPage 3\n\non May 1,  2017... On July 27, 2017,  an Assistant Attorney General\nconfirmed with the Sheriffs Office,  by e- mail,  that the former -deputy did not respond to its April\n24,  2017, \n\nin the Public Access Bureau\n\nletter. \n\nDETERMINATION\n\nThe requirements of FOIA apply to \" public records,\"  which is defined as: \n\nAJII records,  reports,  forms.  writings,  letters,  memoranda,  books, \n\npapers,  maps,  photographs,  microfilms,  cards,  tapes,  recordings, \n\nelectronic data processing records,  electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business,  regardless of\nphysical form or characteristics,  having been prepared by or for, \nor having been or being used by,  received by,  in the possession\nof or under the control of any public body. ( Emphasis added.) \n5 ILCS 140/ 2( c) ( West 2016) \n\nWhen presented with a FOIA request,  a public body is required to conduct a\n\nreasonable search tailored to the nature of a particular request.\"  Campbell v.  U.S.  Department\nofJustice,  164 F. 3d 20, 28 ( D.C.  Cir.  1998).  A public body is not required to \" search every\nrecord system[,];,  but it \" cannot limit its search to only one record system if there are others that\nare likely to turn up the requested information.\"  Oglesby v.  U.S.  Department of the Army,  920\nF. 2d 57,  68 ( D. C.  Cir.  1990).  Neither the destruction of responsive records nor speculation that\n\nadditional\n\nrecords may exist \" undermines the reasonableness of the agency' s search[.]\"  Moore v. \n\nF.B.I., 366 Fed.  Appx. 659,  661 ( 7th Cir. 2010);  see Yeager v. Drug Enforcement Admin., 678\nF. 2d 315,  321 ( D. C.  Cir.  1982) (\" A requester is entitled only to records that an agency has in fact\nchosen to create and retain.\");  Miller v.  United States Dep' t of State,  779 F. 2d 1378,  1385 ( 8th\nCir. 1985) (\" The fact that a document once existed does not mean that it now exists;  nor does the\nfact that an agency created a document necessarily imply that the agency has retained it.\"). \n\nThe Attorney General has issued a binding opinion which determined that\n\nelectronic messages pertaining to the transaction of public business that are stored on personal\naccounts are \" public records\"  as defined by section 2( c)  of FOIA.  III. Att'y Gen.  Pub.  Acc.  Op. \nNo.  16- 006,  issued August 9,  2016,  at 10.  The binding opinion explained that while FOIA does\nnot specifically prescribe how a public body should search for responsive e- mails maintained on\nprivate accounts, depending on the circumstances,  a public body may satisfy the requirement\nto\nconduct a reasonable search by directing the applicable employee to turn over any responsive e- \nmails.  See 111.  Att' y Gen.  Pub.  Acc.  Op.  No.  16- 006 at 10- 11. \n\n\fMr.  Martin M.  Beltz\n\nAugust 10,  2017\n\nPage 4\n\nThe Sheriffs Office' s response to this office explained that\n\nit searched the former\n\ndeputy' s work phone and work e- mail account,  and provided all responsive records in its physical\npossession to\nAdditionally,  with respect to any responsive records that may be stored\nit asked the\non the former -deputy' s personal accounts,  the Sheriff' s Office has demonstrated that\nformer -employee to conduct a search and turn over any responsive records,  but has not received\n\na response. \n\nfor Review, \n\nIn his Request\n\nasserts that the Sheriff' s Office should be\nrequired to provide any records from the deputy' s personal accounts even if it must obtain the\nrecords from a communications provider.  This office,  however,  has previously determined that a\npublic body is not required to use a subpoena process to obtain records from a communications\nfor text messages.  See 111.  Att' y Gen.  PAC Req. \nprovider\nRev.  Ltr.  29327,  issued March 27,  2015,  at 2- 3 (\" There is no indication that the General\n\nin order to respond to a FOIA request\n\nAssembly intended to require a public body to generate a lawsuit and issue or obtain a subpoena\nit does not maintain in the ordinary course of business\nin order to gain control over records that\nin order to respond to a FOIA request.\"). \n\nIn this instance,  other than by filing a lawsuit or obtaining a subpoena seeking to\nthe former -deputy to search his personal e- mail,  phone,  and Facebook accounts and turn\ncompel\nover any records responsive to\nrequest,  the Sheriff' s Office does not appear to have\nany way to require the former -deputy to cooperate because he is no longer an employee of the\nSheriffs Office. ;,Because the available information indicates that the Sheriffs Office disclosed\nall responsive records in its physical possession or custody,  and because it contacted the former - \ndeputy and asked him to search his personal accounts,  this office is unable to conclude that the\nSheriffs Office violated the requirements of FOIA by failing to conduct an adequate search. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. \nIf you have any questions,  you may contact me by\nmail at the Chicago address listed on the first page of this letter,  by phone at ( 312)  550- 4480,  or\nby e- mail at sbargaby@atg. state. il.us.  This letter serves to close this file. \n\nVery truly yours, \n\nSHANNON BARNAB\n\nAssistant Attorney General\nPublic Access Bureau\n\n47187 f 3a search proper 3d response complete county\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Investigative files and schedules of a former deputy sheriff","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-47187/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust\n\n10, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Martin M. Beltz\n\nFOIA Officer\n\nPerry County Government\n\n1 Public Square\n\nPinckneyville, Illinois 62274\n\nperrycountyfoia@gmail.\n\ncom\n\nRE: FOIA Request for Review — 2017 PAC 47187\n\nDear\n\nand Mr. Beltz: \n\nThis determination is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the response by the Sheriffs Office (Sheriff's Office) to\n\nMarch 6, 2017, FOIA request did not violate FOIA. \n\nOn that date, \n\nsubmitted a six -part FOIA request\n\nto the Sheriffs Office\nseeking various records regarding a former deputy, including: (1) any complaints made against\nthe deputy alleging inappropriate communications with any minor(s); (2) records showing any\nspecific dialogue, exchanged between the deputy and any minor(s); (3) documents regarding the\nSheriffs Office's investigation of any such complaints; (4) the complete work schedule for the\ndeputy for a specific timeframe; (5) records pertaining to the deputy being assigned to the\nposition of the school resource officer along with documents regarding suspensions, \nreassignments, and resignation of the deputy, and (6) a request for the following: \n\nA] II electronic communications, \nmessages from both department -issued and personal cellphones of\n\nincluding cellphone text\n\nnamed deputy], email messages from both department issued and\npersonal email accounts of [named deputy], Facebook messages\nfrom both department\nof [named deputy], sent and received by [ named deputy] during all\ntimes he was on duty as the Perry County Resource Officer. [II\n\nissued and personal Facebook accounts * * * \n\nOn March 13, 2017, the Sheriffs Office responded by providing\n\nwith\n\nsome responsive records? \n\nRegarding part six of the request, the Sheriffs Office provided\n\ndocuments from the department - issued cell phone and pages from the Sheriffs Office's School\nResource Facebook page. However, the Sheriffs Office indicated any records from the deputy's\npersonal accounts did not meet the definition of public records under FOIA because the Sheriffs\nOffice never possessed or controlled such records. On March 31, 2017, \nRequest for Review alleging that the Sheriffs Office failed to produce all records responsive to\nhis request. \n\nfiled this\n\nOn April 6, 2017, this office forwarded a copy of the Request for Review to the\nallegation that its response to the request\n\nIn addition, this office requested that the Sheriffs Office provide a detailed\n\nSheriff's Office and asked it to respond to\nwas incomplete.\ndescription of the measures taken by the Sheriffs Office to search for records responsive to each\npart of\nthe\nmethod of the search, and the individuals who were consulted. Also, this office asked the\nSheriffs Office to provide the factual and legal bases for the Sheriffs Office's assertion that any\nresponsive records from the deputy's personal accounts did not meet the definition of a public\nrecord under FOIA. \n\nrequest, including the specific recordkeeping systems that were searched, \n\nOn April 24, 2017, this office received the Sheriff's Office's response in which the\n\nSherriffs Office maintained that it had provided\npossession. However, the Sherriffs Office response also indicated that after receiving the\nRequest\nrequesting that he inform the Sheriffs Office if he possessed any records responsive to\n\nfor Review from this office, it sent a letter to the former -deputy on April 24, 2017, \n\nwith all the responsive records in its\n\nrequest, and if so, to provide copies of the records to the Sheriff's Office by May 5, 2017. \n\nOn April 25, 201/, \n\nthis office forwarded the Sheriffs Office's response to\n\nhe replied\n\nMarch 6, 2017). \n\nLetter from\n\nto Steve Bareis, Perry County Sheriff, Perry County Sheriffs Office\n\n2 Certain portions of the provided responsive records were redacted pursuant\n7(1)(6), and 7(1)(c) of FOIA (5 ILCS 140/ 7(I)(a), (I)(b), (however, does not dispute the redactions to the records provided to him. Therefore, the scope of this review is\nlimited to whether the measures performed by the Sheriffs Office appear to be reasonably calculated to locate all\n\nto sections 7(1)(Request for Review, \n\non May 1, 2017... On July 27, 2017, an Assistant Attorney General\nconfirmed with the Sheriffs Office, by e- mail, that the former -deputy did not respond to its April\n24, 2017, \n\nin the Public Access Bureau\n\nletter. \n\nDETERMINATION\n\nThe requirements of FOIA apply to \" public records,\" which is defined as: \n\nAJII records, reports, forms. writings, letters, memoranda, books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business, regardless of\nphysical form or characteristics, having been prepared by or for, \nor having been or being used by, received by, in the possession\nof or under the control of any public body. (Emphasis added.) \n5 ILCS 140/ 2(c) (West 2016) \n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of a particular request.\" Campbell v. U.S. Department\nofJustice, 164 F. 3d 20, 28 (D.C. Cir. 1998). A public body is not required to \" search every\nrecord system[,];, but it \" cannot limit its search to only one record system if there are others that\nare likely to turn up the requested information.\" Oglesby v. U.S. Department of the Army, 920\nF. 2d 57, 68 (D. C. Cir. 1990). Neither the destruction of responsive records nor speculation that\n\nadditional\n\nrecords may exist \" undermines the reasonableness of the agency's search[.]\" Moore v. \n\nF.B.I., 366 Fed. Appx. 659, 661 (7th Cir. 2010); see Yeager v. Drug Enforcement Admin., 678\nF. 2d 315, 321 (D. C. Cir. 1982) (\" A requester is entitled only to records that an agency has in fact\nchosen to create and retain.\"); Miller v. United States Dep' t of State, 779 F. 2d 1378, 1385 (8th\nCir. 1985) (\" The fact that a document once existed does not mean that it now exists; nor does the\nfact that an agency created a document necessarily imply that the agency has retained it.\"). \n\nThe Attorney General has issued a binding opinion which determined that\n\nelectronic messages pertaining to the transaction of public business that are stored on personal\naccounts are \" public records\" as defined by section 2(c) of FOIA. III. Att'y Gen. Pub. Acc. Op. \nNo. 16- 006, issued August 9, 2016, at 10. The binding opinion explained that while FOIA does\nnot specifically prescribe how a public body should search for responsive e- mails maintained on\nprivate accounts, depending on the circumstances, a public body may satisfy the requirement\nto\nconduct a reasonable search by directing the applicable employee to turn over any responsive e- \n\nThe Sheriffs Office's response to this office explained that\n\nit searched the former\n\ndeputy's work phone and work e- mail account, and provided all responsive records in its physical\npossession to\nAdditionally, with respect to any responsive records that may be stored\nit asked the\non the former -deputy's personal accounts, the Sheriff's Office has demonstrated that\nformer -employee to conduct a search and turn over any responsive records, but has not received\n\na response. \n\nfor Review, \n\nIn his Request\n\nasserts that the Sheriff's Office should be\nrequired to provide any records from the deputy's personal accounts even if it must obtain the\nrecords from a communications provider. This office, however, has previously determined that a\npublic body is not required to use a subpoena process to obtain records from a communications\nfor text messages. See 111. Att' y Gen. PAC Req. \nprovider\nRev. Ltr. 29327, issued March 27, 2015, at 2- 3 (\" There is no indication that the General\n\nin order to respond to a FOIA request\n\nAssembly intended to require a public body to generate a lawsuit and issue or obtain a subpoena\nit does not maintain in the ordinary course of business\nin order to gain control over records that\nin order to respond to a FOIA request.\"). \n\nIn this instance, other than by filing a lawsuit or obtaining a subpoena seeking to\nthe former -deputy to search his personal e- mail, phone, and Facebook accounts and turn\ncompel\nover any records responsive to\nrequest, the Sheriff's Office does not appear to have\nany way to require the former -deputy to cooperate because he is no longer an employee of the\nSheriffs Office.;,Because the available information indicates that the Sheriffs Office disclosed\nall responsive records in its physical possession or custody, and because it contacted the former - \ndeputy and asked him to search his personal accounts, this office is unable to conclude that the\nSheriffs Office violated the requirements of FOIA by failing to conduct an adequate search. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. \nIf you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter, by phone at (312) 550- 4480, or\nby e- mail at sbargaby@atg. state. il.us. This letter serves to close this file. \n\nVery truly yours, \n\nSHANNON BARNAB\n\nAssistant Attorney General\nPublic Access Bureau\n\n47187 f 3a search proper 3d response complete county"}
{"id":891,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-08-28","case_number":null,"request_numbers":["47422","47571","47800","48007","48008"],"title":"Elgin Police Department properly designated requester as recurrent requester","filename":"47422 47571 47800 48007 48008, issued August 28, 2017.pdf","rel_path":null,"word_count":1243,"summary":"The requester challenged the Elgin Police Department's designation of him as a 'recurrent requester' under FOIA. The PAC determined that the Department did not improperly designate the requester as such because he failed to identify himself as news media in his requests.","plain_summary":"A requester challenged the Elgin Police Department for labeling him a 'recurrent requester,' which allows a public body more time to respond to FOIA requests. The Attorney General's office found that the police department acted correctly because the requester did not claim to be a member of the news media when he submitted his requests. Consequently, the PAC closed the files without finding a violation.","holding":"The Elgin Police Department did not improperly designate the requester as a recurrent requester.","legal_question":"Whether the Elgin Police Department properly designated the requester as a 'recurrent requester' under section 2(g) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/2(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Elgin Police Department","requesting_party":"Mr. O'Neill","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The requester challenged the police department's classification of his status as a recurrent requester, which impacts response timelines.","ocr_status":"llm_reocr","ocr_quality":97.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_g/47422%2047571%2047800%2048007%2048008%2C%20issued%20August%2028%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","FOIA response time","news media exception"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust 28,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Russell E.  Matson\n\nPolice Records Supervisor\nElgin Police Department\n\n[street address redacted for site publication -- see original PDF]\nmatson_ r@cityofelgin. org\n\nRE:  FOIA Requests for Review — 2017 PAC 47422;  47571;  47800;  48007; \n\n48008\n\nDear\n\nand Mr. Matson: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons that follow,  the\nPublic Access Bureau concludes that Elgin Police Department ( Police Department)  did not\nimproperly designate\nreferenced files. \n\nas a recurrent requester in each of the above - \n\nOn March 12,  2017, \n\nsubmitted a FOIA request to the Police\n\nDepartment seeking copies of any and all records concerning the enforcement of Federal\nImmigration laws or policy from any law enforcement agency,  Immigration and Customs\nEnforcement,  or Homeland Security.  On March 20,  2017,  the Police Department notified\n\nthat,  because he was a recurrent requester,  it would provide its initial response in 15\n\nbusiness days.  On April 14,  2017,  the Police Department provided Mr. O' Neill with that\nresponse.  On April 17,  2017, \n\nsubmitted a Request\n\nfor Review ( 2017 PAC 47422), \n\n500 South Second Street,  Springfield,  Illinois 62706 • (\n100 West Randolph Street,  Chicago, \nIllinois, 60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Russell E.  Matson\n\nAugust 28,  2017\n\nPage 2\n\nwhich,  he then clarified,  was intended to contest\nqualified as a recurrent\n\nrequester. \n\nthe Police Department' s assertion that he\n\nsubsequently submitted additional FOIA requests to the Police\n\nDepartment and corresponding Requests for Review,  all of which likewise contested his\ndesignation as a recurrent requester.  This office has consolidated these files for purposes of this\ndetermination because they involve the same parties and same issue. \n\nThis office sent copies of\n\nfirst two Requests for Review to the Police\n\nDepartment and asked for a detailed explanation as to why it designated\nrecurrent requester.  On May 31,  2017, the Police Department provided a detailed accounting of\nbetween October 4,  2016,  and October 10,  2016, \nnine FOIA requests submitted by\nincluding copies of those requests and its responses.  The Police Department\nthat on October 18,  2016,  it had informed\nOn June 20,  2017, \nrequester designation because he qualifies as news media. \n\nsubmitted a reply, asserting that he was exempt from the recurrent\n\nthat he qualified as a recurrent requester. \n\nfurther explained\n\nas a\n\nIn a July 19,  2017, telephone conversation with an Assistant Attorney General in\n\nthe Public Access Bureau, \nrecurrent requester by the Police Department. \n\nconfirmed that he contests only his designation as a\n\nDETERMINATION\n\nSection 2( g)  of FOIA ( 5 ILCS 140/ 2( g) ( West 2016))  provides,  in pertinent part: \n\nRecurrent requester\",  as used in Section 3. 2 of [FOIA], \n\nmeans a person that,  in the 12 months immediately preceding the\nrequest,  has submitted to the same public body ( i) a minimum of\n50 requests for records, ( ii) a minimum of 15 requests for records\nwithin a 30 -day period,  or ( iii) a minimum of 7 requests for\nrecords within a 7 -day period.  For purposes of this definition, \nrequests made by news media and non- profit,  scientific,  or\nacademic organizations shall not be considered in calculating the\nnumber of requests made in the time periods in this definition\nwhen the principal purpose of the requests is ( i)  to access and\ndisseminate information concerning news and current or passing\nevents, ( ii)  for articles of opinion or features of interest to the\npublic,  or ( iii) for the purpose of academic,  scientific,  or public\nresearch or education. ( Emphasis added.) \n\n\fMr. Russell E.  Matson\n\nAugust 28,  2017\n\nPage 3\n\nThe Police Department has documented that\n\nsubmitted nine separate\n\nrequests for records in the 7 -day period from October 4,  2016, through October 10,  2016. \nSection 2( g)  of FOIA unambiguously provides that a requester who has already submitted seven\nrequester upon the submission of\nrequests for records within a 7 -day period becomes a recurrent\none further request to the same public body.  Thus, under the plain language of section 2( g)  of\nFOIA, \nrequest when he submitted his eighth FOIA request on\nOctober 10,  2016,  unless he falls under one of the exceptions to that provision. \n\nqualified a recurrent\n\nIn his June 20,  2017,  reply to this office, \n\nargued that his requests met\n\nthe news media exception in section 2( g)'  because: (\nexisted as a media information service\"  for 21 years; ( 2)  his Youtube channel has over 650, 000\nviews and has covered matters in and around Elgin; ( 3)  he has accumulated a Facebook audience\nof over 2, 500 people in two years; ( 4)  his \" Media Photography page\"  was created at least ten\nyears ago and has over 10 million views;  and ( 5)  he won an award for one of his photographs in\n2010.2 However, \n\n1)  his website,  www. elginet. com, \" has\n\nalso stated: \n\nIn the past,  the city has not required me to make FOIA\n\nrequests as Elginet Media.  I can however,  resubmit these FOIA\nrequests as Elginet Media this will relieve any confusion on their\npart but I feel they will then simply deem them as \" Duplicate\nRequests\". ( Emphasis in original.) 131\n\nBased on this office' s review, the October 2016,  requests were not identified as\n\nbeing from a \" news media\"  entity,  or assert that the principal purpose of the requests was among\nthe three principle purposes that are excluded from the definition of \"recurrent requester\"  in\nsection 2( g)  of FOIA.  Elginet Media does not appear to be a traditional news media outlet such\nas a newspaper and there is no indication that the Police Department was aware that\nsought Elginet Media to be recognized as news media in order to avoid being treated as a\n\nSection 2( 0 of FOIA ( 5 ILCS 140/ 2( 0 (West 2016))  provides: \n\nNews media\"  means a newspaper or other periodical issued at regular\nin print or\n\nintervals whether in print or electronic format,  a news service whether\nelectronic format, a radio station, a television station,  a television network, a\ncommunity antenna television service,  or a person or corporation engaged in\nmaking news reels or other motion picture news for public showing. \n\nAccess Bureau\n\nletter from\nJune 20,  2017),  at\n\n1- 2. \n\nto Christopher Boggs,  Assistant Attorney [ General],  Public\n\nAccess Bureau\n\nLetter from\n\nJune 20,  2017),  at 2. \n\nto Mr. Christopher Boggs,  Assistant Attomey [ General],  Public\n\n\fMr. Russell E.  Matson\nAugust 28,  2017\n\nPage 4\n\nrequester.  Moreover, \n\nonly claimed that he qualified as news media in his\n\nrecurrent\nreply in these matters,  rather than in his FOIA requests or in his Requests for Review.  Therefore\nthis office did not ask the Police Department to address whether\nnews media exception.  Because\nmedia entity for a purpose excluded from definition of \"recurrent requester\"  and because neither\nhis FOIA requests nor his Requests for Review claim that his requests qualified as being from\nnews media,  this office is unable to conclude that the Police Department\nimproperly designated\nhim as a recurrent requester in connection with his FOIA requests in these matters. \n\nrequests met the\ndid not identify his requests as being from a news\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion.  This letter serves to close these files.  If you have\nany questions,  please contact me at ( 217)  785- 7438 or at the Springfield address listed on the\nfirst page of this letter. \n\nVery truly yours, \n\nHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n47422 47571 47800 48007 48008 consol f 2g recurrent\n\nreq proper pd\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nAugust 28, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Russell E. Matson\n\nPolice Records Supervisor\nElgin Police Department\n\n[street address redacted for site publication -- see original PDF]\nmatson_ r@cityofelgin. org\n\nRE: FOIA Requests for Review — 2017 PAC 47422; 47571; 47800; 48007; \n\n48008\n\nDear\n\nand Mr. Matson: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that Elgin Police Department (Police Department) did not\nimproperly designate\nreferenced files. \n\nas a recurrent requester in each of the above - \n\nOn March 12, 2017, \n\nsubmitted a FOIA request to the Police\n\nDepartment seeking copies of any and all records concerning the enforcement of Federal\nImmigration laws or policy from any law enforcement agency, Immigration and Customs\nEnforcement, or Homeland Security. On March 20, 2017, the Police Department notified\n\nthat, because he was a recurrent requester, it would provide its initial response in 15\n\nbusiness days. On April 14, 2017, the Police Department provided Mr. O' Neill with that\nresponse. On April 17, 2017, \n\nsubmitted a Request\n\nfor Review (2017 PAC 47422), \n\nwhich, he then clarified, was intended to contest\nqualified as a recurrent\n\nrequester. \n\nthe Police Department's assertion that he\n\nsubsequently submitted additional FOIA requests to the Police\n\nDepartment and corresponding Requests for Review, all of which likewise contested his\ndesignation as a recurrent requester. This office has consolidated these files for purposes of this\ndetermination because they involve the same parties and same issue. \n\nThis office sent copies of\n\nfirst two Requests for Review to the Police\n\nDepartment and asked for a detailed explanation as to why it designated\nrecurrent requester. On May 31, 2017, the Police Department provided a detailed accounting of\nbetween October 4, 2016, and October 10, 2016, \nnine FOIA requests submitted by\nincluding copies of those requests and its responses. The Police Department\nthat on October 18, 2016, it had informed\nOn June 20, 2017, \nrequester designation because he qualifies as news media. \n\nsubmitted a reply, asserting that he was exempt from the recurrent\n\nthat he qualified as a recurrent requester. \n\nfurther explained\n\nas a\n\nIn a July 19, 2017, telephone conversation with an Assistant Attorney General in\n\nthe Public Access Bureau, \nrecurrent requester by the Police Department. \n\nconfirmed that he contests only his designation as a\n\nDETERMINATION\n\nSection 2(g) of FOIA (5 ILCS 140/ 2(g) (West 2016)) provides, in pertinent part: \n\nRecurrent requester\", as used in Section 3. 2 of [FOIA], \n\nmeans a person that, in the 12 months immediately preceding the\nrequest, has submitted to the same public body (i) a minimum of\n50 requests for records, (ii) a minimum of 15 requests for records\nwithin a 30 -day period, or (iii) a minimum of 7 requests for\nrecords within a 7 -day period. For purposes of this definition, \nrequests made by news media and non- profit, scientific, or\nacademic organizations shall not be considered in calculating the\nnumber of requests made in the time periods in this definition\n\nThe Police Department has documented that\n\nsubmitted nine separate\n\nrequests for records in the 7 -day period from October 4, 2016, through October 10, 2016. \nSection 2(g) of FOIA unambiguously provides that a requester who has already submitted seven\nrequester upon the submission of\nrequests for records within a 7 -day period becomes a recurrent\none further request to the same public body. Thus, under the plain language of section 2(g) of\nFOIA, \nrequest when he submitted his eighth FOIA request on\nOctober 10, 2016, unless he falls under one of the exceptions to that provision. \n\nqualified a recurrent\n\nIn his June 20, 2017, reply to this office, \n\nargued that his requests met\n\nthe news media exception in section 2(g)' because: (existed as a media information service\" for 21 years; (2) his Youtube channel has over 650, 000\nviews and has covered matters in and around Elgin; (3) he has accumulated a Facebook audience\nof over 2, 500 people in two years; (4) his \" Media Photography page\" was created at least ten\nyears ago and has over 10 million views; and (5) he won an award for one of his photographs in\n2010.2 However, \n\n1) his website, www. elginet. com, \" has\n\nalso stated: \n\nIn the past, the city has not required me to make FOIA\n\nrequests as Elginet Media. I can however, resubmit these FOIA\nrequests as Elginet Media this will relieve any confusion on their\npart but I feel they will then simply deem them as \" Duplicate\nRequests\". (Emphasis in original.) 131\n\nBased on this office's review, the October 2016, requests were not identified as\n\nbeing from a \" news media\" entity, or assert that the principal purpose of the requests was among\nthe three principle purposes that are excluded from the definition of \"recurrent requester\" in\nsection 2(g) of FOIA. Elginet Media does not appear to be a traditional news media outlet such\nas a newspaper and there is no indication that the Police Department was aware that\nsought Elginet Media to be recognized as news media in order to avoid being treated as a\n\nSection 2(0 of FOIA (5 ILCS 140/ 2(0 (West 2016)) provides: \n\nNews media\" means a newspaper or other periodical issued at regular\nin print or\n\nintervals whether in print or electronic format, a news service whether\nelectronic format, a radio station, a television station, a television network, a\ncommunity antenna television service, or a person or corporation engaged in\nmaking news reels or other motion picture news for public showing. \n\nAccess Bureau\n\nletter from\nJune 20, 2017), at\n\n1- 2. \n\nrequester. Moreover, \n\nonly claimed that he qualified as news media in his\n\nrecurrent\nreply in these matters, rather than in his FOIA requests or in his Requests for Review. Therefore\nthis office did not ask the Police Department to address whether\nnews media exception. Because\nmedia entity for a purpose excluded from definition of \"recurrent requester\" and because neither\nhis FOIA requests nor his Requests for Review claim that his requests qualified as being from\nnews media, this office is unable to conclude that the Police Department\nimproperly designated\nhim as a recurrent requester in connection with his FOIA requests in these matters. \n\nrequests met the\ndid not identify his requests as being from a news\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. This letter serves to close these files. If you have\nany questions, please contact me at (217) 785- 7438 or at the Springfield address listed on the\nfirst page of this letter. \n\nVery truly yours, \n\nHRISTOPHER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n47422 47571 47800 48007 48008 consol f 2g recurrent\n\nreq proper pd","plain_summary_pre_resummarize":null,"card_headline":"A police department's recurrent requester designation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-47422/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\nATTORNEY GENERAL\n\nAugust 28, 2017\n\nVia electronic mail\n[REDACTED]\n\nVia electronic mail\nMr. Russell E. Matson\nPolice Records Supervisor\nElgin Police Department\n[street address redacted for site publication -- see original PDF]\nmatson_r@cityofelgin.org\n\nRE: FOIA Requests for Review – 2017 PAC 47422; 47571; 47800; 48007;\n48008\n\nDear [REDACTED] and Mr. Matson:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that Elgin Police Department (Police Department) did not\nimproperly designate [REDACTED] as a recurrent requester in each of the above-\nreferenced files.\n\nOn March 12, 2017, [REDACTED] submitted a FOIA request to the Police\nDepartment seeking copies of any and all records concerning the enforcement of Federal\nImmigration laws or policy from any law enforcement agency, Immigration and Customs\nEnforcement, or Homeland Security. On March 20, 2017, the Police Department notified\n[REDACTED] that, because he was a recurrent requester, it would provide its initial response in 15\nbusiness days. On April 14, 2017, the Police Department provided Mr. O'Neill with that\nresponse. On April 17, 2017, [REDACTED] submitted a Request for Review (2017 PAC 47422),\n\nMr. Russell F. Matson\nAugust 28, 2017\nPage 2\n\nwhich, he then clarified, was intended to contest the Police Department's assertion that he\nqualified as a recurrent requester.\n\n[REDACTED] subsequently submitted additional FOIA requests to the Police\nDepartment and corresponding Requests for Review, all of which likewise contested his\ndesignation as a recurrent requester. This office has consolidated these files for purposes of this\ndetermination because they involve the same parties and same issue.\n\nThis office sent copies of [REDACTED] first two Requests for Review to the Police\nDepartment and asked for a detailed explanation as to why it designated [REDACTED] as a\nrecurrent requcster. On May 31, 2017, the Police Department provided a detailed accounting of\nnine FOIA requests submitted by [REDACTED] between October 4, 2016, and October 10, 2016,\nincluding copies of those requests and its responses. The Police Department further explained\nthat on October 18, 2016, it had informed [REDACTED] that he qualified as a recurrent requester.\nOn June 20, 2017, [REDACTED] submitted a reply, asserting that he was exempt from the recurrent\nrequester designation because he qualifies as news media.\n\nIn a July 19, 2017, telephone conversation with an Assistant Attorney General in\nthe Public Access Bureau, [REDACTED] confirmed that he contests only his designation as a\nrecurrent requester by the Police Department.\n\nDETERMINATION\n\nSection 2(g) of FOIA (5 ILCS 140/2(g) (West 2016)) provides, in pertinent part:\n\n\"Recurrent requester\", as used in Section 3.2 of [FOIA],\nmeans a person that, in the 12 months immediately preceding the\nrequest, has submitted to the same public body (i) a minimum of\n50 requests for records, (ii) a minimum of 15 requests for records\nwithin a 30-day period, or (iii) a minimum of 7 requests for\nrecords within a 7-day period. For purposes of this definition,\nrequests made by news media and non-profit, scientific, or\nacademic organizations shall not be considered in calculating the\nnumber of requests made in the time periods in this definition\nwhen the principal purpose of the requests is (i) to access and\ndisseminate information concerning news and current or passing\nevents, (ii) for articles of opinion or features of interest to the\npublic, or (iii) for the purpose of academic, scientific, or public\nresearch or education. (Emphasis added.)\n\nMr. Russell E. Matson\nAugust 28, 2017\nPage 3\n\nThe Police Department has documented that [REDACTED] submitted nine separate\nrequests for records in the 7-day period from October 4, 2016, through October 10, 2016.\nSection 2(g) of FOIA unambiguously provides that a requester who has already submitted seven\nrequests for records within a 7-day period becomes a recurrent requester upon the submission of\none further request to the same public body. Thus, under the plain language of section 2(g) of\nFOIA, [REDACTED] qualified a recurrent request when he submitted his eighth FOIA request on\nOctober 10, 2016, unless he falls under one of the exceptions to that provision.\n\nIn his June 20, 2017, reply to this office, [REDACTED] argued that his requests met\nthe news media exception in section 2(g)1 because: (1) his website, www.elginet.com, \"has\nexisted as a media information service\" for 21 years; (2) his Youtube channel has over 650,000\nviews and has covered matters in and around Elgin; (3) he has accumulated a Facebook audience\nof over 2,500 people in two years; (4) his \"Media Photography page\" was created at least ten\nyears ago and has over 10 million views; and (5) he won an award for one of his photographs in\n2010.2 However, [REDACTED] also stated:\n\nIn the past, the city has not required me to make FOIA\nrequests as Elginet Media. I can however, resubmit these FOIA\nrequests as Elginet Media this will relieve any confusion on their\npart but I feel they will then simply deem them as \"Duplicate\nRequests\". (Emphasis in original.) [3]\n\nBased on this office's review, the October 2016, requests were not identified as\nbeing from a \"news media\" entity, or assert that the principal purpose of the requests was among\nthe three principle purposes that are excluded from the definition of \"recurrent requester\" in\nsection 2(g) of FOIA. Elginet Media does not appear to be a traditional news media outlet such\nas a newspaper and there is no indication that the Police Department was aware that [REDACTED]\nsought Elginet Media to be recognized as news media in order to avoid being treated as a\n\n1Section 2(f) of FOIA (5 ILCS 140/2(f) (West 2016)) provides:\n\n\"News media\" means a newspaper or other periodical issued at regular\nintervals whether in print or electronic format, a news service whether in print or\nelectronic format, a radio station, a television station, a television network, a\ncommunity antenna television service, or a person or corporation engaged in\nmaking news reels or other motion picture news for public showing.\n\n2Letter from [REDACTED] to Christopher Boggs, Assistant Attorney [General], Public\nAccess Bureau (June 20, 2017), at 1-2.\n\n3Letter from [REDACTED] to Mr. Christopher Boggs, Assistant Attorney [General], Public\nAccess Bureau (June 20, 2017), at 2.\n\nMr. Russell E. Matson\nAugust 28, 2017\nPage 4\n\nrecurrent requester. Moreover, [REDACTED] only claimed that he qualified as news media in his\nreply in these matters, rather than in his FOIA requests or in his Requests for Review. Therefore\nthis office did not ask the Police Department to address whether [REDACTED] requests met the\nnews media exception. Because [REDACTED] did not identify his requests as being from a news\nmedia entity for a purpose excluded from definition of \"recurrent requester\" and because neither\nhis FOIA requests nor his Requests for Review claim that his requests qualified as being from\nnews media, this office is unable to conclude that the Police Department improperly designated\nhim as a recurrent requester in connection with his FOIA requests in these matters.\n\nThe Public Access Counselor has determined that resolution of these matters does\nnot require the issuance of a binding opinion. This letter serves to close these files. If you have\nany questions, please contact me at (217) 785-7438 or at the Springfield address listed on the\nfirst page of this letter.\n\nVery truly yours,\n\n[REDACTED]\nCHRISTOPHER R. BOGGS\nAssistant Attorney General\nPublic Access Bureau\n\n47422 47571 47800 48007 48008 consol f 2g recurrent req proper pd"}
{"id":892,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-09-13","case_number":null,"request_numbers":["47540"],"title":"Central School District No. 104 improperly withheld notice to remedy for teacher performance","filename":"47540, issued September 13, 2017.pdf","rel_path":null,"word_count":2273,"summary":"The requester sought a 'notice to remedy' resolution approved by the Central School District No. 104, but the District withheld an attached exhibit claiming it was a confidential performance evaluation. The PAC determined that the document related to the public duties of a public employee and was therefore improperly withheld.","plain_summary":"A newspaper requested a notice to remedy that was attached to a school board resolution, but the district withheld it, claiming it was a confidential performance evaluation. The Illinois Attorney General's Public Access Bureau ruled that the notice to remedy is not a 'performance evaluation' under the School Code or the Personnel Record Review Act because it addresses specific instances of misconduct rather than a comprehensive periodic evaluation. Therefore, the district improperly denied the request.","holding":"Central School District No. 104 improperly withheld the requested exhibit to the notice to remedy resolution.","legal_question":"Whether a 'notice to remedy' regarding a teacher's performance constitutes an unwarranted invasion of personal privacy under FOIA section 7(1)(c) or is otherwise exempt as a performance evaluation.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(c)","7.5(q)"],"public_body":"Central School District No. 104","requesting_party":"Mr. Jeff Egbert (O'Fallon Weekly)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned an exhibit attached to a school district's 'notice to remedy' resolution regarding a teacher's performance.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_q/47540%2C%20issued%20September%2013%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","teacher performance","notice to remedy","privacy exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 13,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr.  Jeff Egbert\n\nAdvertising Director\nO' Fallon Weekly\njeff@ofallonweekly. com\n\nVia electronic mail\n\nMr.  Garrett P.  Hoerner\n\nBecker,  Hoerner,  Thompson &  Ysursa,  P. C. \n\n5111 West Main Street\n\n[street address redacted for site publication -- see original PDF]\ngph@bhtylaw.\n\ncom\n\nRE:  FOIA Request\n\nfor Review — 2017 PAC 47540\n\nDear Mr.  Egbert and Mr.  Hoerner: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow,  the\nPublic Access Bureau concludes Central School District No.  104 ( District)  improperly denied\nMr. Jeff Egberts February 16,  2017,  FOIA request. \n\nOn that date,  Mr.  Egbert,  on behalf of O' Fallon Weekly,  submitted a FOIA request\nto the District seeking a copy of the notice to remedy resolution approved at the District' s special\nmeeting on the same day.  On February 24,  2017,  the District provided a copy of the resolution\nbut withheld Exhibit A referenced in the resolution pursuant to sections 7( 1)( a)  and 7( 1)( c) ( 5\nI)( c) ( West 2016))  as well as section 7. 5( q)  of FOIA ( 5 ILCS 140/ 7. 5( q) \n\nILCS 140/ 7( 1)( a), (\nWest 2016));  the District's response asserted that the requested record is a performance\nevaluation that is confidential under section 11 of the Personnel Record Review Act ( PRRA) \n\n820 ILCS 40/ 11 ( West 2016)).  Mr. Egbert disputes the denial of the exhibit. \n\nOn April 28,  2017,  this office forwarded a copy of the Request for Review to the\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\nFax: ( 312)  814- 3806\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Jeff Egbert\n\nMr.  Garrett Hoerner\n\nSeptember\n\n13,  2017\n\nPage 2\n\nDistrict and asked it to provide an unredacted copy of the record at issue for this office' s\nconfidential\nEgbert did not reply to the District' s response. \n\nreview.  On May 19,  2017,  counsel for the District furnished those materials;  Mr. \n\nDETERMINATION\n\nAll records in the possession or custody of a public body are presumed to be open\n\nto inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v.  Illinois\nDept.  of Public Health, 218 I11.  2d 390,  415 ( 2006).  A public body \" has the burden of proving\nby clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS 140/ 1. 2\nWest 2016). \n\nSections 7( 1)( a)  and 7.5( q)  of FOIA\n\nSection 7( 1)( a)  of FOIA exempts from inspection and copying \"[ i] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\"  In Better Gov't Assn v.  Blagojevich,  386 Ill. App.  3d 808, \n816 ( 2008),  the Illinois Appellate Court stated that \" an exemption restricting the expansive\nnature of the FOIA's disclosure provisions must be explicitly stated— that is,  such a proposed\ndisclosure must be specifically prohibited.\"  Better Gov' t Ass' n v.  Blagojevich,  386 Ill.  App.  3d\n808,  816 ( 4th Dist. 2008) \n\nSection 7. 5( q)  of FOIA exempts from disclosure \"[ i] nformation prohibited from\nto the\n\nbeing disclosed by the Personnel Records Review Act.\"  The District denied the exhibit\nresolution under sections 7( 1)( a)  and 7. 5( q)  of FOIA based on section 11 of PRRA,  which\nprovides: \" This Act shall not be construed to diminish a right of access to records already\notherwise provided by law, provided that disclosure of performance evaluations under the\nFreedom of Information Act shall be prohibited.\" \n\nIn its response to\nThe record in question is a notice to remedy issued to a teacher. \nthis office,  the District asserted that the notice to remedy constitutes a \" performance evaluation\" \nthat is prohibited from being disclosed by section 11 of PRRA as well as section 24A- 7. 1 of the\nSchool Code ( 105 ILCS 5/ 24A- 7. 1 ( West 2016)).'  Neither statute defines the term \" performance\n\nevaluation.\" \n\nA notice to remedy is a written notice that generally must be provided to a tenured\nteacher before a school board may proceed with disciplinary proceedings that could result in the\n\ndisclosure of public school\n\nteacher,  principal,  and superintendent\n\nperformance evaluations is prohibited.\" \n\nSection 24A- 7.\n\n1 of the School Code provides: \" Except as otherwise provided under this Act, \n\n\fMr.  Jeff Egbert\n\nMr. Garrett Hoerner\n\nSeptember 13,  2017\n\nPage 3\n\nteacher' s dismissal.  105 ILCS 5/ 24- 12( d)( 1) ( West 2016).  The Public Access Bureau has\npreviously determined that a notice to remedy is not a \" performance evaluation\"  under the\nSchool Code or PRRA: \" The fact that both statutory provisions refer to ' performance\nevaluations'  indicates that the General Assembly intended only to bar disclosure of documents in\nwhich an employee' s overall performance is evaluated,  not documents that merely address\nspecific instances of misconduct and issue directives to the employee relating to the\nI11.  Att'y Gen.  PAC Req.  Rev.  Ltr.  12095,  issued April 17,  2012,  at 4. \nmisconduct.\" \n\nThe District' s response to this office asserts that our determination in 2011 PAC\n\n12095 \" exalts form over substance,  as the same statement would be confidential\nin an annual\nperformance evaluation but not in a notice to remedy[.]\"  2 Yet performance evaluations may\ncontain references to information in numerous types of other records that are subject to\ndisclosure under FOIA,  such as resumes,  employment applications3 and Complaint Register\nfiles.°  If the General Assembly had intended section 24A- 7. 1 of the School Code or section 11\nof PRRA to prohibit disclosure of any records that contain such information other than\nperformance evaluations,  it would have done so expressly.  Further,  the District' s conclusory\nassertion that a \" notice to remedy is tantamount to a performance evaluationi5 does not provide\nclear and convincing evidence in support of the section 7( 1)( a)  and 7. 5( q)  exemptions. \n\nIn construing a statute,  the primary goal\n\nis to ascertain and give effect to the\n\nintent of the General Assembly.  Wisnasky- Bettorf v.  Pierce,  2012 IL 111253, ¶ 16,  965 N. E. 2d\n1103,  1106 ( 2012). \" We view the statute as a whole,  construing words and phrases in light of\nother relevant statutory provisions and not in isolation.  Each word,  clause,  and sentence of a\nstatute must be given a reasonable meaning,  if possible,  and should not be rendered superfluous.\" \nPeople v.  Gutman,  2011 IL 110338, ¶ 12,  959 N. E. 2d 621,  624 ( 2011).  When a term is used in\n\ndifferent portions of statute,  it is presumed to have the same meaning throughout unless the\ncontext provides otherwise.  Guillen v. Potomac Insurance Co.  of Illinois,  203 Ill. 2d 141,  152\n2003). \n\n2Letter from Garrett P.  Hoerner, Becker, Hoerner, Thompson &  Ysursa,  to Steve Silverman, \n\nAssistant Attorney General,  Public Access Bureau ( May 19,  2017),  at 2. \n\nPersonnel Record Review Act prohibits a public body from disclosing resumes or employment applications.\"). \n\n3111.  Att' y Gen.  Pub.  Acc.  Op.  No.  14- 015,  issued November 25,  2014,  at 9 (\" No provision of the\n\nFraternal Order of Police,  Chicago Lodge No.  7 v.  City of Chicago,  2016 IL App ( 1st)  143884, \n\n53,  59 N. E. 3d 96,  108 ( 2016) ( concluding that Complaint Register files detailing investigations of misconduct\nagainst police officers are subject to disclosure). \n\n5Letter from Garrett P.  Hoerner, Becker, Hoerner, Thompson &  Ysursa, to Steve Silverman, \n\nAssistant Attorney General,  Public Access Bureau ( May 19,  2017),  at 2. \n\n\fMr. Jeff Egbert\n\nMr.  Garrett Hoerner\n\nSeptember 13,  2017\n\nPage 4\n\nNotably,  the provision of the School Code that the District relied upon to\n\ncharacterize the notice to remedy as a performance evaluation and deny Mr. Egbert' s request is\nincluded in Article 24A.  The purpose of the Article is to \" improve the educational services of\nthe elementary and secondary public schools of Illinois by requiring that all certified school\ndistrict employees be evaluated on a periodic basis and that the evaluations result in remedial\naction being taken when deemed necessary.\" ( Emphasis added.)  105 ILCS 5/ 24A- 1 ( West\n2016).  Each school district\nis required to develop a \" teacher evaluation plan\"  providing that\nis \" evaluated\"  at least once every two years and given an overall rating such as\nevery teacher\nexcellent,  satisfactory,  or unsatisfactory.  105 ILCS 5/ 24A-4,  24A- 5,  24A -5( c) ( West 2016).  In\naddition,  the provision immediately preceding section 24A- 7. 1 provides for the development of\nrules governing the evaluation process in collaboration with a \" Performance Evaluation Advisory\nCouncil\"  that includes \" persons with expertise in performance evaluation processes and\n\nsystem[.]\" \n\n105 ILCS 5/ 24A- 7 ( West 2016). \n\nConsidering section 24A of the School Code as a whole,  it is apparent that the\n\nin\nterm \" evaluation\"  in sections 24A- 1,  24A- 4,  and 24A- 5 and the term \" performance evaluation\" \nsection 24A- 7 is intended to apply to periodic comprehensive evaluations rather than a document\nconcerning specific instances of misconduct.  Because a notice of remedy concerns specific\ninstances of misconduct,  it is not a \" performance evaluation\"  that section 24A- 7. 1 of the School\nCode prohibits the District from disclosing.  Accordingly,  we conclude that the District\nimproperly denied the notice to remedy on that basis. \n\nNor does section 11 of the PRRA prohibit disclosure of a notice to remedy.  The\n\nSenate Debates on House Bill 5154,  which amended section 11 of the Act to add the language\nbarring disclosure of \"performance evaluations,\"  indicates that the term was intended to apply to\nperiodic comprehensive evaluations: \n\nThe premise is, there is --  some protection should be in place for\n\nemployees and employers.  If there is a performance evaluation\n\npiece — you work all year, you know your supervisor has set some\n\ngoals for you to meet —I don't know that it' s your business or\n\nanyone else's business on what this particular staff person have\nobtained within that year' s evaluation.  I think what is and what\n\nshould be known is,  perhaps,  the title that the person is in, how\n\nmuch they' re actually being paid,  even so far just to say whether or\nnot they are an employee of the State of Illinois or any other public\nemployee.  But how well you did on your actual performance\nevaluation year- to-year, I think is a --  a measure of privacy. \nEmphasis added.)  Remarks of Sen.  Lightford,  April 29,  2010, \n\nSenate Debate on House Bill No.  5154,  at 182. \n\n\fMr.  Jeff Egbert\n\nMr.  Garrett Hoerner\n\nSeptember\n\n13,  2017\n\nPage 5\n\nSee also remarks of Rep.  Chapa LaVia,  March 11,  2010,  House Debate on House Bill No.  5154, \nI] t' s just a thorough and constructive evaluation.  Employees should receive guidance, \nat 107. \"[\n\ncorrective action and further development all within the goal of helping employees achieve\n\nexcellence.\" \n\nAs with section 24A- 7. 1 of the School Code,  there is no indication that the term\nperformance evaluation\"  in section 11 of PRRA was intended to apply to specific instances of\nmisconduct.  Accordingly,  this office concludes that the District has not sustained its burden of\ndemonstrating that the notice of remedy is exempt from disclosure pursuant to section 7( 1)( a)  or\nsection 7. 5( q)  of FOIA. \n\nSection 7( 1)( c)  of FOIA\n\nLastly,  the District asserts that the notice to remedy is exempt from disclosure\ninformation of the subject teacher.\" 6 Section 7( 1)( c) \n\npursuant to section 7( 1)( c) \" as personal\npermits a public body to withhold: \n\nPersonal\n\ninformation contained within public records,  the\n\ndisclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy,  unless the disclosure is consented to\nin writing by the individual subjects of the information. \nUnwarranted invasion of personal privacy\"  means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject' s right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation.  The disclosure of information that bears on the\npublic duties of public employees and officials shall not be\nconsidered an invasion ofpersonal privacy. ( Emphasis added.) \n\nBased on this office' s review of the notice to remedy,  it directly bears on the\n\nteacher' s performance of her public duties.  Because the above -definition of \"unwarranted\ninvasion of personal privacy\"  expressly excludes information that bears on the public duties of\npublic employees,  this office concludes that the District\nremedy under section 7( 1)( c)  of FOIA. \n\nimproperly withheld the notice to\n\nLetter from Garrett P.  Hoerner,  Becker,  Roemer,  Thompson &  Ysursa,  to Steve Silverman, \n\nAssistant Attorney General,  Public Access Bureau ( May 19,  2017),  at 2. \n\n\fr. Jeff Egbert\n\nMr.  Garrett Hoerner\n\nSeptember\n\n13,  2017\n\nPage 6\n\nIn accordance with the conclusions expressed in this determination,  we request\n\nthat the District provide Mr. Egbert with a copy of the notice to remedy.  The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion.  If you have any questions,  please contact me at ( 312)  814- 6756.  This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n47540 f 71a improper 71c improper 7. 5( q)  improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An exhibit to a teacher's notice to remedy resolution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-47540/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 13, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. Jeff Egbert\n\nAdvertising Director\nO' Fallon Weekly\njeff@ofallonweekly. com\n\nVia electronic mail\n\nMr. Garrett P. Hoerner\n\nBecker, Hoerner, Thompson & Ysursa, P. C. \n\n5111 West Main Street\n\n[street address redacted for site publication -- see original PDF]\ngph@bhtylaw.\n\ncom\n\nRE: FOIA Request\n\nfor Review — 2017 PAC 47540\n\nDear Mr. Egbert and Mr. Hoerner: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes Central School District No. 104 (District) improperly denied\nMr. Jeff Egberts February 16, 2017, FOIA request. \n\nOn that date, Mr. Egbert, on behalf of O' Fallon Weekly, submitted a FOIA request\nto the District seeking a copy of the notice to remedy resolution approved at the District's special\nmeeting on the same day. On February 24, 2017, the District provided a copy of the resolution\nbut withheld Exhibit A referenced in the resolution pursuant to sections 7(1)(a) and 7(1)(c) (5\nI)(c) (West 2016)) as well as section 7. 5(q) of FOIA (5 ILCS 140/ 7. 5(q) \n\nILCS 140/ 7(1)(a), (West 2016)); the District's response asserted that the requested record is a performance\nevaluation that is confidential under section 11 of the Personnel Record Review Act (PRRA) \n\n820 ILCS 40/ 11 (West 2016)). Mr. Egbert disputes the denial of the exhibit. \n\nOn April 28, 2017, this office forwarded a copy of the Request for Review to the\n\nDistrict and asked it to provide an unredacted copy of the record at issue for this office's\nconfidential\nEgbert did not reply to the District's response. \n\nreview. On May 19, 2017, counsel for the District furnished those materials; Mr. \n\nDETERMINATION\n\nAll records in the possession or custody of a public body are presumed to be open\n\nto inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. Illinois\nDept. of Public Health, 218 I11. 2d 390, 415 (2006). A public body \" has the burden of proving\nby clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS 140/ 1. 2\nWest 2016). \n\nSections 7(1)(a) and 7.5(q) of FOIA\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" In Better Gov't Assn v. Blagojevich, 386 Ill. App. 3d 808, \n816 (2008), the Illinois Appellate Court stated that \" an exemption restricting the expansive\nnature of the FOIA's disclosure provisions must be explicitly stated— that is, such a proposed\ndisclosure must be specifically prohibited.\" Better Gov' t Ass' n v. Blagojevich, 386 Ill. App. 3d\n808, 816 (4th Dist. 2008) \n\nSection 7. 5(q) of FOIA exempts from disclosure \"[ i] nformation prohibited from\nto the\n\nbeing disclosed by the Personnel Records Review Act.\" The District denied the exhibit\nresolution under sections 7(1)(a) and 7. 5(q) of FOIA based on section 11 of PRRA, which\nprovides: \" This Act shall not be construed to diminish a right of access to records already\notherwise provided by law, provided that disclosure of performance evaluations under the\nFreedom of Information Act shall be prohibited.\" \n\nIn its response to\nThe record in question is a notice to remedy issued to a teacher. \nthis office, the District asserted that the notice to remedy constitutes a \" performance evaluation\" \nthat is prohibited from being disclosed by section 11 of PRRA as well as section 24A- 7. 1 of the\nSchool Code (105 ILCS 5/ 24A- 7. 1 (West 2016)).' Neither statute defines the term \" performance\n\nevaluation.\" \n\nA notice to remedy is a written notice that generally must be provided to a tenured\nteacher before a school board may proceed with disciplinary proceedings that could result in the\n\ndisclosure of public school\n\nteacher's dismissal. 105 ILCS 5/ 24- 12(d)(1) (West 2016). The Public Access Bureau has\npreviously determined that a notice to remedy is not a \" performance evaluation\" under the\nSchool Code or PRRA: \" The fact that both statutory provisions refer to ' performance\nevaluations' indicates that the General Assembly intended only to bar disclosure of documents in\nwhich an employee's overall performance is evaluated, not documents that merely address\nspecific instances of misconduct and issue directives to the employee relating to the\nI11. Att'y Gen. PAC Req. Rev. Ltr. 12095, issued April 17, 2012, at 4. \nmisconduct.\" \n\nThe District's response to this office asserts that our determination in 2011 PAC\n\n12095 \" exalts form over substance, as the same statement would be confidential\nin an annual\nperformance evaluation but not in a notice to remedy[.]\" 2 Yet performance evaluations may\ncontain references to information in numerous types of other records that are subject to\ndisclosure under FOIA, such as resumes, employment applications3 and Complaint Register\nfiles.° If the General Assembly had intended section 24A- 7. 1 of the School Code or section 11\nof PRRA to prohibit disclosure of any records that contain such information other than\nperformance evaluations, it would have done so expressly. Further, the District's conclusory\nassertion that a \" notice to remedy is tantamount to a performance evaluationi5 does not provide\nclear and convincing evidence in support of the section 7(1)(a) and 7. 5(q) exemptions. \n\nIn construing a statute, the primary goal\n\nis to ascertain and give effect to the\n\nintent of the General Assembly. Wisnasky- Bettorf v. Pierce, 2012 IL 111253, ¶ 16, 965 N. E. 2d\n1103, 1106 (2012). \" We view the statute as a whole, construing words and phrases in light of\nother relevant statutory provisions and not in isolation. Each word, clause, and sentence of a\nstatute must be given a reasonable meaning, if possible, and should not be rendered superfluous.\" \nPeople v. Gutman, 2011 IL 110338, ¶ 12, 959 N. E. 2d 621, 624 (2011). When a term is used in\n\ndifferent portions of statute, it is presumed to have the same meaning throughout unless the\ncontext provides otherwise. Guillen v. Potomac Insurance Co. of Illinois, 203 Ill. 2d 141, 152\n2003). \n\n2 Letter from Garrett P. Hoerner, Becker, Hoerner, Thompson & Ysursa, to Steve Silverman, \n\nAssistant Attorney General, Public Access Bureau (May 19, 2017), at 2. \n\nPersonnel Record Review Act prohibits a public body from disclosing resumes or employment applications.\"). \n\n3111. Att' y Gen. Pub. Acc. Op. No. 14- 015, issued November 25, 2014, at 9 (\" No provision of the\n\nFraternal Order of Police, Chicago Lodge No. 7 v. City of Chicago, 2016 IL App (1st) 143884, \n\n53, 59 N. E. 3d 96, 108 (2016) (concluding that Complaint Register files detailing investigations of misconduct\n\nNotably, the provision of the School Code that the District relied upon to\n\ncharacterize the notice to remedy as a performance evaluation and deny Mr. Egbert's request is\nincluded in Article 24A. The purpose of the Article is to \" improve the educational services of\nthe elementary and secondary public schools of Illinois by requiring that all certified school\ndistrict employees be evaluated on a periodic basis and that the evaluations result in remedial\naction being taken when deemed necessary.\" (Emphasis added.) 105 ILCS 5/ 24A- 1 (West\n2016). Each school district\nis required to develop a \" teacher evaluation plan\" providing that\nis \" evaluated\" at least once every two years and given an overall rating such as\nevery teacher\nexcellent, satisfactory, or unsatisfactory. 105 ILCS 5/ 24A-4, 24A- 5, 24A -5(c) (West 2016). In\naddition, the provision immediately preceding section 24A- 7. 1 provides for the development of\nrules governing the evaluation process in collaboration with a \" Performance Evaluation Advisory\nCouncil\" that includes \" persons with expertise in performance evaluation processes and\n\nsystem[.]\" \n\n105 ILCS 5/ 24A- 7 (West 2016). \n\nConsidering section 24A of the School Code as a whole, it is apparent that the\n\nin\nterm \" evaluation\" in sections 24A- 1, 24A- 4, and 24A- 5 and the term \" performance evaluation\" \nsection 24A- 7 is intended to apply to periodic comprehensive evaluations rather than a document\nconcerning specific instances of misconduct. Because a notice of remedy concerns specific\ninstances of misconduct, it is not a \" performance evaluation\" that section 24A- 7. 1 of the School\nCode prohibits the District from disclosing. Accordingly, we conclude that the District\nimproperly denied the notice to remedy on that basis. \n\nNor does section 11 of the PRRA prohibit disclosure of a notice to remedy. The\n\nSenate Debates on House Bill 5154, which amended section 11 of the Act to add the language\nbarring disclosure of \"performance evaluations,\" indicates that the term was intended to apply to\nperiodic comprehensive evaluations: \n\nThe premise is, there is -- some protection should be in place for\n\nemployees and employers. If there is a performance evaluation\n\npiece — you work all year, you know your supervisor has set some\n\ngoals for you to meet —I don't know that it's your business or\n\nanyone else's business on what this particular staff person have\nobtained within that year's evaluation. I think what is and what\n\nshould be known is, perhaps, the title that the person is in, how\n\nmuch they' re actually being paid, even so far just to say whether or\nnot they are an employee of the State of Illinois or any other public\n\nSee also remarks of Rep. Chapa LaVia, March 11, 2010, House Debate on House Bill No. 5154, \nI] t's just a thorough and constructive evaluation. Employees should receive guidance, \nat 107. \"[\n\ncorrective action and further development all within the goal of helping employees achieve\n\nexcellence.\" \n\nAs with section 24A- 7. 1 of the School Code, there is no indication that the term\nperformance evaluation\" in section 11 of PRRA was intended to apply to specific instances of\nmisconduct. Accordingly, this office concludes that the District has not sustained its burden of\ndemonstrating that the notice of remedy is exempt from disclosure pursuant to section 7(1)(a) or\nsection 7. 5(q) of FOIA. \n\nSection 7(1)(c) of FOIA\n\nLastly, the District asserts that the notice to remedy is exempt from disclosure\ninformation of the subject teacher.\" 6 Section 7(1)(c) \n\npursuant to section 7(1)(c) \" as personal\npermits a public body to withhold: \n\nPersonal\n\ninformation contained within public records, the\n\ndisclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to\nin writing by the individual subjects of the information. \nUnwarranted invasion of personal privacy\" means the disclosure\nof information that is highly personal or objectionable to a\nreasonable person and in which the subject's right to privacy\noutweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the\npublic duties of public employees and officials shall not be\nconsidered an invasion ofpersonal privacy. (Emphasis added.) \n\nBased on this office's review of the notice to remedy, it directly bears on the\n\nteacher's performance of her public duties. Because the above -definition of \"unwarranted\ninvasion of personal privacy\" expressly excludes information that bears on the public duties of\npublic employees, this office concludes that the District\n\nIn accordance with the conclusions expressed in this determination, we request\n\nthat the District provide Mr. Egbert with a copy of the notice to remedy. The Public Access\nCounselor has determined that resolution of this matter does not require the issuance of a binding\nopinion. If you have any questions, please contact me at (312) 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n47540 f 71a improper 71c improper 7. 5(q) improper sd"}
{"id":893,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-10-03","case_number":null,"request_numbers":["48297"],"title":"Chicago Public Schools improperly redacted student cell size data under privacy exemptions","filename":"48297, issued October 3, 2017.pdf","rel_path":null,"word_count":2376,"summary":"WBEZ reporter Sarah Karp requested data from Chicago Public Schools regarding the feeder grammar schools for selective enrollment high school students, which CPS redacted based on student privacy concerns. The PAC determined that CPS failed to prove that disclosing small cell sizes (fewer than 10 students) would lead to the identification of individual students.","plain_summary":"A reporter asked Chicago Public Schools for data showing which grammar schools students came from to attend selective high schools. The school district hid some of the numbers, claiming that showing small groups of students might reveal their identities. The Attorney General's office concluded that the district improperly redacted that information.","holding":"Chicago Public Schools improperly redacted student cell size counts of less than 10 from the requested records.","legal_question":"Whether Chicago Public Schools met its burden to prove that disclosing student enrollment counts of less than 10 per school would constitute an unwarranted invasion of personal privacy or violate student record confidentiality laws.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7.5(r)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7.5(r)"],"public_body":"Chicago Public Schools","requesting_party":"Sarah Karp, WBEZ","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"student records","subject_description":"The request sought data on the feeder grammar schools for students enrolled in selective enrollment high schools.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_r/Masked-records-data/48297%2C%20issued%20October%203%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["student records","privacy","school data","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 3,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs.  Sarah Karp\nReporter,  WBEZ\n\nskarp@wbez. org\n\nVia electronic mail\n\nMs.  Elyssa Shull\n\nFreedom of Information Act Officer\n\nChicago Public Schools\n\n42 West Madison,  3rd Floor\n\n[street address redacted for site publication -- see original PDF]\neashull@cps. edu\n\nRE:  FOIA Request for Review — 2017 PAC 48297\n\nDear Ms.  Karp and Ms.  Shull: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Public Schools ( CPS)  improperly redacted\ncertain information from records responsive to Ms.  Sarah Karp's May 16,  2017,  FOIA request. \n\nOn that date,  Ms.  Karp,  on behalf of WBEZ,  submitted a FOIA request\n\nto CPS\n\nseeking \" the names of the GRAMMAR SCHOOLS from which the freshmen enrolled in [ each\nselective enrollment high school]  came from for the current school year of 2017.\" ( Emphasis in\n\noriginal.)'  She also sought similar records \" for the students who have ACCEPTED slots in the\nselective enrollment high schools for the school year 2018.\" ( Emphasis in original.) 2 On June 7, \n2017,  CPS provided a responsive spreadsheet and stated that it had redacted certain information\n\npursuant\n\nto sections 7( 1)( b),  7( 1)( c)  and 7. 5( r)  of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)(\n\nc) ( West 2016); \n\nOnline FOIA Request submitted by Sarah Karp to CPS FOIA Center ( May 16,  2017). \n\n2Online FOIA Request submitted by Sarah Karp to CPS FOIA Center ( May 16,  2017). \n\n500 South Second Street,  Springfield. \nIllinois 62701 • (\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \nFax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Sarah Karp\nMs.  Elyssa Shull\n\nOctober 3,  2017\n\nPage 2\n\n5 ILCS 140/ 7. 5( r) ( West 2016)).  Specifically,  CPS stated that it had redacted \" student identifiers\nwhere there are less than 10. i3\n\nOn June 13,  2017,  this office received Ms.  Karp' s Request\n\nfor Review disputing\n\nthe redactions to the spreadsheet.  She stated: \" There is no way that I can identify any individual\nstudent with the information requested,  nor is it my intention. i4 On June 23,  2017,  this office\nforwarded a copy of the Request for Review to CPS and asked it to provide an unredacted copy\nof the record that was withheld for this office' s confidential review, together with a detailed\n\nexplanation of the legal and factual basis for the asserted exemptions.  On July 18,  2017,  CPS\nprovided the requested materials.  On July 19,  2017,  this office forwarded a copy of CPS' \nresponse to Ms.  Karp.  She replied on September 6,  2017, noting that WBEZ had received the\nsame type of record without redactions from CPS in 2011.  Ms.  Karp also provided this office\nwith a copy of the record that WBEZ had received that year. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department of Public Health,  218 III.  2d 390,  415 ( 2006).  A public body that redacts\ninformation in a record \" has the burden of proving by clear and convincing evidence\"  that the\nredacted information is exempt from disclosure.  5 ILCS 140/ 1. 2 ( West 2016).  The exemptions\n\nfrom disclosure are to be narrowly construed.  Lieber v.  Board of Trustees of Southern Illinois\nUniversity,  176 I11.  2d 401,  407 ( 1997). \n\nSection 7. 5( r) of FOIA\n\nSection 7. 5( r) of FOIA exempts from inspection and copying \"[ i] nformation\n\nprohibited from being disclosed by the Illinois School Student Records Act.\"  Section 6( a)  of the\nIllinois School Student Records Act (ISSRA) ( 105 ILCS 10/ 6( a) ( West 2016))  provides that\n\nn] o school student records or information contained therein may be released,  transferred,  or\n\ndisclosed or otherwise disseminated,  except\"  in certain specified instances.  Section 2( d)  of\n\nISSRA ( 105 ILCS 10/ 2( d) ( West 2016))  defines \" school student record\"  as \" any writing or\nrecorded information concerning a student and by which a student may be individually\nidentified,  maintained by a school or at its direction or by an employee of a school,  regardless of\nhow or where the information is stored.\" \n\nPublic Schools,  to Sarah Karp (June 7,  2017). \n\nCPS FOIA Center response signed by Ana Diaz, Freedom of Information Act Officer, Chicago\n\nAttorney General ( June 13,  2017). \n\nLetter from Sarah Karp, Reporter,  WBEZ, to Sarah Pratt,  Public Access Counselor, Office of the\n\n\fMs.  Sarah Karp\nMs.  Elyssa Shull\n\nOctober 3,  2017\n\nPage 3\n\nIn its response to this office,  CPS stated that it had furnished Ms.  Karp with \" a\n\ndocument\n\nlisting offers made by each * * * \n\nselective enrollment high school and the\n\ncorresponding grammar school of the student( s)  receiving the offer\"  but had redacted certain\nstudent cell sizes of less than 10 students so as not to personally identify any student who\nreceived an offer\" where the total number of students from a specific grammar school totaled less\nthan 10 students. 5 CPS asserted,  in pertinent part: \n\nThe small number of students offered enrollment at a particular\n\nselective enrollment school that also attended a particular\n\nelementary school makes it possible for a reasonable person within\nthe school community to identify a student even without\nrelease of the student' s name,  therefore pursuant\n\nto ISSRA parent\n\nthe\n\nconsent is required for release of this information. \n\nChicago Public Schools'  standard redaction practice is to\n\nuse the ' Rule of 10.'  This standard is used when redacting\naggregate reporting of student record information involving small\ncell size prior to public release.  This standard is one that both the\n\nIllinois State Board of Education ( ISBE) and the Chicago Public\n\nSchools have long -employed to comply with the student record\nprivacy requirements found in the Illinois Student Records Act\n\n105 ILCS 10/ 1)(\nPrivacy Act ( 20 U. S. C. §  1232g;  34 CFR Part 99)( FERPA). \n\nISSRA) and the Federal Educational Rights and\n\nThe guiding principle behind establishing a minimum cell\n\nsize for redactions is [ to]  ensure that the release of de -identified\nstudent information for a small number of students would not\n\nallow those students to be indirectly identified by a reasonable\nperson in the student' s school community thereby revealing their\nconfidential student information. 161\n\nCPS'  response to this office also alluded to the following example from the Federal guidelines on\nprotecting personally identifiable student information issued by the U. S.  Department of\nEducation ( Department of Education): \n\n5Letter from Elyssa Shull,  Freedom of Information Act Officer, Chicago Public Schools,  to Teresa\n\nLim,  Assistant Attorney General,  Public Access Bureau ( July 18,  2017). \n\nLim,  Assistant Attorney General,  Public Access Bureau ( July 18,  2017). \n\nLetter from Elyssa Shull,  Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\n\fMs.  Sarah Karp\nMs.  Elyssa Shull\n\nOctober 3,  2017\n\nPage 4\n\nI] t might be well known among students,  teachers, \n\nadministrators,  parents,  coaches,  volunteers or others at a local\n\nthat a student was caught bringing a gun to class last\n\nhigh school\nmonth but generally unknown in the town where the school\nlocated. \nthat a high school student was suspended for bringing a gun to\nclass last month, even though a reasonable person in the\n\nIn these circumstances,  a school district may not disclose\n\nis\n\ncommunity where the school\nidentify the student,  because a reasonable person in the high school\nwould be able to identify the student.\" ( See 73 FR 74806 at\n7832). 2\n\nis located would not be able to\n\nThis office has reviewed additional Federal guidelines issued by the Department. \nt] he simple removal of nominal or direct identifiers,  such\n\nAccording to the Federal guidelines, \"[\nas name and SSN ( or other ID number),  does not necessarily avoid the release of personally\nidentifiable information\"  because \"[ o] ther information, such as address,  date and place of birth, \n\nrace,  ethnicity,  gender,  physical description,  disability,  activities and accomplishments, \ndisciplinary actions,  and so forth,  can indirectly identify someone depending on the combination\noffactors and level of detail released.\" ( Emphasis added.) 8 Thus,  the Federal guidelines\nexplain,  the \" reasonable person\"  standard is intended to \" provide[ ]  the standard an agency or\ninstitution should use to determine whether statistical\n\ninformation or a redacted record will\n\nidentify a student,  even though certain identifiers have been removed,  because of a well- \npublicized incident or some other factor known in the community.\" ( Emphasis added.) 9 The\nDepartment' s Privacy Technical Assistance Center has issued further guidance on the\n\nreasonable person\"  standard: \n\nLetter from Elyssa Shull,  Freedom of Information Act Officer,  Chicago Public Schools,  to Teresa\n\nLim,  Assistant Attorney General,  Public Access Bureau ( July 18,  2017). \n\n74831 ( Dec.  9,  2008) ( codified at 34 C. F. R.  Pt.  99). \n\n8Department of Education;  Family Educational Rights and Privacy;  Final Rule, 73 Fed.  Reg. \n\n74831- 32 ( Dec.  9,  2008) ( codified at 34 C. F. R.  Pt.  99). \n\n9Department of Education;  Family Educational Rights and Privacy;  Final Rule,  73 Fed.  Reg. \n\n\fMs.  Sarah Karp\nMs.  Elyssa Shull\n\nOctober 3,  2017\n\nPage 5\n\nThe FERPA [ Family Educational Rights and Privacy Act]  standard\nfor de -identification assesses whether a \" reasonable person in the\n\nschool community who does not have personal knowledge of the\nrelevant circumstances\"  could identify individual students based\non reasonably available information ( 34 CFR §  99. 3 and\n99. 31( b)( 1)). \n\nThis includes other public information released by\nan agency,  such as a report presenting detailed data in tables with\nsmall size cells.  The \" reasonable person\"  standard should be used\n\nby state and local educational agencies and institutions to\ndetermine whether statistical\n\ninformation or records have been\n\nsufficiently redacted prior to release such that a \" reasonable\nperson\" ( i. e.,  a hypothetical,  rational,  prudent,  average individual) \nin the school community should not be able to identify a student\nbecause of some well- publicized event,  communications,  or other\nsimilar factor.  School officials,  including teachers, \nadministrators,  coaches,  and volunteers,  are not considered in\n\nmaking the reasonable person determination since they are\npresumed to have inside knowledge of the relevant circumstances\nand of the identity of the students. ( Emphasis added.) 11°\n\n1\n\nIn this matter,  the contested information is markedly different\nstudent information to which the rule of 10 applies pursuant to the Federal guidelines.  With\n\nfrom the types of\n\nstudent demographic data,  certain fields may be redacted to protect the identity of students when\nthe fields taken together would enable students to be individually identified.  The question with\nstudent demographic data is how many descriptors of an individual student must be removed in\norder to avoid identifying that student.  For example,  if there are a very small number of students\nof a particular\nrace or ethnicity at a school,  redaction of those students'  race or ethnicity may be\nnecessary to prevent those students from being identified in demographic data.  In contrast,  the\nrecords at\nissue here contain no attributes of specific students— they merely reflect\nstudents from certain elementary schools who were given offers to attend particular selective\nenrollment schools.  Student cell size counts do not individually identify students absent\nadditional details about the students,  such as demographic information or a description of a well- \npublicized event\nSeptember 14,  2017,  at 3- 4 ( student discipline data properly redacted where students'  identities\ncould be ascertained from small group sizes combined with the release of various racial and\nethnographic data about the students);  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. 44301,  issued January\nfrom disclosure because \" specific events\n27,  2017,  at 4 ( records of school\n\ninvolving the students.  Cf. Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  46840,  issued\n\ninvestigation exempt\n\nthe number of\n\n10Privacy Technical Assistance Center,  U. S.  Department of Education,  Frequently Asked\n\nQuestions — Disclosure Avoidance (revised July 2015), \nhttp:// ptac. ed. gov/ sites/ default/ files/ FAQ_ DisclosureAvoidance. pdf, at 2. \n\n\fs. Sarah Karp\nMs. Elyssa Shull\n\nOctober 3,  2017\n\nPage 6\n\nand circumstances are discussed that could be used to identify individual students who were the\nsubject of the records\").  CPS has not identified any well- publicized event or other circumstance\nfrom which students in the data at issue may be individually identified. \n\nAlthough a person in a school community may be independently aware of\n\nstudents who were chosen for selective enrollment,  a \" Rule of 10\"  standard would be no more\n\neffective at protecting students'  identities under those circumstances than a \" Rule of 100\"  or a\nRule of 1, 000\"  because it would be solely the community member' s independent knowledge, \nrather than any information within the list of how many students came from each school,  that\ncould individually identify the students.  A reasonable person in a school community who does\nnot have personal knowledge of which students were selected would not be able to ascertain the\n\nidentity of any student if the cells with less than ten students were to be disclosed.  Therefore, \nthis office concludes that CPS has not demonstrated by clear and convincing evidence that\nstudent cell size counts of less than 10 are exempt from disclosure under section 7. 5( r) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that CPS disclose to Ms.  Karp the student cell size counts consisting of less than 10\nstudents.  The Public Access Counselor has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion.  This letter shall serve to close this matter.  If you have\nany questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n48297 f 75r improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Student enrollment counts by feeder grammar school","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-48297/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 3, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Sarah Karp\nReporter, WBEZ\n\nskarp@wbez. org\n\nVia electronic mail\n\nMs. Elyssa Shull\n\nFreedom of Information Act Officer\n\nChicago Public Schools\n\n42 West Madison, 3rd Floor\n\n[street address redacted for site publication -- see original PDF]\neashull@cps. edu\n\nRE: FOIA Request for Review — 2017 PAC 48297\n\nDear Ms. Karp and Ms. Shull: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Public Schools (CPS) improperly redacted\ncertain information from records responsive to Ms. Sarah Karp's May 16, 2017, FOIA request. \n\nOn that date, Ms. Karp, on behalf of WBEZ, submitted a FOIA request\n\nto CPS\n\nseeking \" the names of the GRAMMAR SCHOOLS from which the freshmen enrolled in [ each\nselective enrollment high school] came from for the current school year of 2017.\" (Emphasis in\n\noriginal.)' She also sought similar records \" for the students who have ACCEPTED slots in the\nselective enrollment high schools for the school year 2018.\" (Emphasis in original.) 2 On June 7, \n2017, CPS provided a responsive spreadsheet and stated that it had redacted certain information\n\npursuant\n\nto sections 7(1)(b), 7(1)(c) and 7. 5(r) of FOIA (5 ILCS 140/ 7(1)(b), (1)(c) (West 2016); \n\nOnline FOIA Request submitted by Sarah Karp to CPS FOIA Center (May 16, 2017). \n\n2 Online FOIA Request submitted by Sarah Karp to CPS FOIA Center (May 16, 2017). \n\n5 ILCS 140/ 7. 5(r) (West 2016)). Specifically, CPS stated that it had redacted \" student identifiers\nwhere there are less than 10. i3\n\nOn June 13, 2017, this office received Ms. Karp's Request\n\nfor Review disputing\n\nthe redactions to the spreadsheet. She stated: \" There is no way that I can identify any individual\nstudent with the information requested, nor is it my intention. i4 On June 23, 2017, this office\nforwarded a copy of the Request for Review to CPS and asked it to provide an unredacted copy\nof the record that was withheld for this office's confidential review, together with a detailed\n\nexplanation of the legal and factual basis for the asserted exemptions. On July 18, 2017, CPS\nprovided the requested materials. On July 19, 2017, this office forwarded a copy of CPS' \nresponse to Ms. Karp. She replied on September 6, 2017, noting that WBEZ had received the\nsame type of record without redactions from CPS in 2011. Ms. Karp also provided this office\nwith a copy of the record that WBEZ had received that year. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 III. 2d 390, 415 (2006). A public body that redacts\ninformation in a record \" has the burden of proving by clear and convincing evidence\" that the\nredacted information is exempt from disclosure. 5 ILCS 140/ 1. 2 (West 2016). The exemptions\n\nfrom disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 I11. 2d 401, 407 (1997). \n\nSection 7. 5(r) of FOIA\n\nSection 7. 5(r) of FOIA exempts from inspection and copying \"[ i] nformation\n\nprohibited from being disclosed by the Illinois School Student Records Act.\" Section 6(a) of the\nIllinois School Student Records Act (ISSRA) (105 ILCS 10/ 6(a) (West 2016)) provides that\n\nn] o school student records or information contained therein may be released, transferred, or\n\ndisclosed or otherwise disseminated, except\" in certain specified instances. Section 2(d) of\n\nISSRA (105 ILCS 10/ 2(d) (West 2016)) defines \" school student record\" as \" any writing or\nrecorded information concerning a student and by which a student may be individually\nidentified, maintained by a school or at its direction or by an employee of a school, regardless of\nhow or where the information is stored.\" \n\nPublic Schools, to Sarah Karp (June 7, 2017). \n\nCPS FOIA Center response signed by Ana Diaz, Freedom of Information Act Officer, Chicago\n\nAttorney General (June 13, 2017). \n\nLetter from Sarah Karp, Reporter, WBEZ, to Sarah Pratt, Public Access Counselor, Office of the\n\nIn its response to this office, CPS stated that it had furnished Ms. Karp with \" a\n\ndocument\n\nlisting offers made by each * * * \n\nselective enrollment high school and the\n\ncorresponding grammar school of the student(s) receiving the offer\" but had redacted certain\nstudent cell sizes of less than 10 students so as not to personally identify any student who\nreceived an offer\" where the total number of students from a specific grammar school totaled less\nthan 10 students. 5 CPS asserted, in pertinent part: \n\nThe small number of students offered enrollment at a particular\n\nselective enrollment school that also attended a particular\n\nelementary school makes it possible for a reasonable person within\nthe school community to identify a student even without\nrelease of the student's name, therefore pursuant\n\nto ISSRA parent\n\nthe\n\nconsent is required for release of this information. \n\nChicago Public Schools' standard redaction practice is to\n\nuse the ' Rule of 10.' This standard is used when redacting\naggregate reporting of student record information involving small\ncell size prior to public release. This standard is one that both the\n\nIllinois State Board of Education (ISBE) and the Chicago Public\n\nSchools have long -employed to comply with the student record\nprivacy requirements found in the Illinois Student Records Act\n\n105 ILCS 10/ 1)(Privacy Act (20 U. S. C. § 1232g; 34 CFR Part 99)(FERPA). \n\nISSRA) and the Federal Educational Rights and\n\nThe guiding principle behind establishing a minimum cell\n\nsize for redactions is [ to] ensure that the release of de -identified\nstudent information for a small number of students would not\n\nallow those students to be indirectly identified by a reasonable\nperson in the student's school community thereby revealing their\nconfidential student information. 161\n\nCPS' response to this office also alluded to the following example from the Federal guidelines on\nprotecting personally identifiable student information issued by the U. S. Department of\nEducation (Department of Education): \n\n5 Letter from Elyssa Shull, Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau (July 18, 2017). \n\nLim, Assistant Attorney General, Public Access Bureau (July 18, 2017). \n\nLetter from Elyssa Shull, Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\nI] t might be well known among students, teachers, \n\nadministrators, parents, coaches, volunteers or others at a local\n\nthat a student was caught bringing a gun to class last\n\nhigh school\nmonth but generally unknown in the town where the school\nlocated. \nthat a high school student was suspended for bringing a gun to\nclass last month, even though a reasonable person in the\n\nIn these circumstances, a school district may not disclose\n\nis\n\ncommunity where the school\nidentify the student, because a reasonable person in the high school\nwould be able to identify the student.\" (See 73 FR 74806 at\n7832). 2\n\nis located would not be able to\n\nThis office has reviewed additional Federal guidelines issued by the Department. \nt] he simple removal of nominal or direct identifiers, such\n\nAccording to the Federal guidelines, \"[\nas name and SSN (or other ID number), does not necessarily avoid the release of personally\nidentifiable information\" because \"[ o] ther information, such as address, date and place of birth, \n\nrace, ethnicity, gender, physical description, disability, activities and accomplishments, \ndisciplinary actions, and so forth, can indirectly identify someone depending on the combination\noffactors and level of detail released.\" (Emphasis added.) 8 Thus, the Federal guidelines\nexplain, the \" reasonable person\" standard is intended to \" provide[ ] the standard an agency or\ninstitution should use to determine whether statistical\n\ninformation or a redacted record will\n\nidentify a student, even though certain identifiers have been removed, because of a well- \npublicized incident or some other factor known in the community.\" (Emphasis added.) 9 The\nDepartment's Privacy Technical Assistance Center has issued further guidance on the\n\nreasonable person\" standard: \n\nLetter from Elyssa Shull, Freedom of Information Act Officer, Chicago Public Schools, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau (July 18, 2017). \n\nThe FERPA [ Family Educational Rights and Privacy Act] standard\nfor de -identification assesses whether a \" reasonable person in the\n\nschool community who does not have personal knowledge of the\nrelevant circumstances\" could identify individual students based\non reasonably available information (34 CFR § 99. 3 and\n99. 31(b)(1)). \n\nThis includes other public information released by\nan agency, such as a report presenting detailed data in tables with\nsmall size cells. The \" reasonable person\" standard should be used\n\nby state and local educational agencies and institutions to\ndetermine whether statistical\n\ninformation or records have been\n\nsufficiently redacted prior to release such that a \" reasonable\nperson\" (i. e., a hypothetical, rational, prudent, average individual) \nin the school community should not be able to identify a student\nbecause of some well- publicized event, communications, or other\nsimilar factor. School officials, including teachers, \nadministrators, coaches, and volunteers, are not considered in\n\nmaking the reasonable person determination since they are\npresumed to have inside knowledge of the relevant circumstances\nand of the identity of the students. (Emphasis added.) 11°\n\n1\n\nIn this matter, the contested information is markedly different\nstudent information to which the rule of 10 applies pursuant to the Federal guidelines. With\n\nfrom the types of\n\nstudent demographic data, certain fields may be redacted to protect the identity of students when\nthe fields taken together would enable students to be individually identified. The question with\nstudent demographic data is how many descriptors of an individual student must be removed in\norder to avoid identifying that student. For example, if there are a very small number of students\nof a particular\nrace or ethnicity at a school, redaction of those students' race or ethnicity may be\nnecessary to prevent those students from being identified in demographic data. In contrast, the\nrecords at\nissue here contain no attributes of specific students— they merely reflect\nstudents from certain elementary schools who were given offers to attend particular selective\nenrollment schools. Student cell size counts do not individually identify students absent\nadditional details about the students, such as demographic information or a description of a well- \npublicized event\nSeptember 14, 2017, at 3- 4 (student discipline data properly redacted where students' identities\ncould be ascertained from small group sizes combined with the release of various racial and\nethnographic data about the students); Ill. Att' y Gen. PAC Req. Rev. Ltr. 44301, issued January\nfrom disclosure because \" specific events\n27, 2017, at 4 (records of school\n\ninvolving the students. Cf. Ill. Att' y Gen. PAC Req. Rev. Ltr. 46840, issued\n\ninvestigation exempt\n\nand circumstances are discussed that could be used to identify individual students who were the\nsubject of the records\"). CPS has not identified any well- publicized event or other circumstance\nfrom which students in the data at issue may be individually identified. \n\nAlthough a person in a school community may be independently aware of\n\nstudents who were chosen for selective enrollment, a \" Rule of 10\" standard would be no more\n\neffective at protecting students' identities under those circumstances than a \" Rule of 100\" or a\nRule of 1, 000\" because it would be solely the community member's independent knowledge, \nrather than any information within the list of how many students came from each school, that\ncould individually identify the students. A reasonable person in a school community who does\nnot have personal knowledge of which students were selected would not be able to ascertain the\n\nidentity of any student if the cells with less than ten students were to be disclosed. Therefore, \nthis office concludes that CPS has not demonstrated by clear and convincing evidence that\nstudent cell size counts of less than 10 are exempt from disclosure under section 7. 5(r) of FOIA. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that CPS disclose to Ms. Karp the student cell size counts consisting of less than 10\nstudents. The Public Access Counselor has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion. This letter shall serve to close this matter. If you have\nany questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n48297 f 75r improper sd"}
{"id":894,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-08-31","case_number":null,"request_numbers":["48793"],"title":"Springfield Police Department properly withheld body camera recordings under 7.5(cc)","filename":"48793, issued August 31, 2017.pdf","rel_path":null,"word_count":1586,"summary":"The requester sought officer-worn body camera recordings from the Springfield Police Department, which the City denied under section 7.5(cc) of FOIA. The PAC determined the City properly withheld the records because the requester did not meet the statutory criteria for access under the Body Camera Act.","plain_summary":"A citizen requested police body camera footage, but the City of Springfield denied the request. The Attorney General's office reviewed the case and agreed with the City, finding that the requester was not authorized to receive the footage under the specific rules of the Illinois Body Camera Act. Consequently, the case was closed with no violation found.","holding":"The Springfield Police Department did not improperly withhold the requested body camera recordings.","legal_question":"Whether the Springfield Police Department properly withheld officer-worn body camera recordings pursuant to section 7.5(cc) of FOIA and the Illinois Body Camera Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(cc)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(cc)"],"public_body":"Springfield Police Department","requesting_party":"Requester (name redacted in source document)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved access to officer-worn body camera recordings from a specific police dispatch incident.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-subject-of-encounter/48793%2C%20issued%20August%2031%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","FOIA","exemption 7.5(cc)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nAugust 31,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Brenda Hunsley\nFOIA Records Clerk\n\nSpringfield Police Department\n\nCity of Springfield\n[street address redacted for site publication -- see original PDF]\nbrenda.hunsley@springfield. il.us\n\nRE:  FOIA Request for Review — 2017 PAC 48793\n\nDear\n\nand Ms.  Hunsley: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016)).  For the reasons explained below, the\nPublic Access Bureau concludes that the City of Springfield ( City)  did not improperly withhold\nrecordings responsive to\n\nFOIA request. \n\nOn July 17,  2017, \n\nsubmitted a FOIA request to the City seeking\n\nofficer -worn body camera recordings and transcripts of the supervisors who were dispatched to\n2127 East Stuart on February 27,  2017.  On July 18,  2017,  the City denied the recordings citing\nsection 7. 5( cc)  of FOIA ( 5 ILCS 150/ 7. 5( cc) ( West 2016)),  but did not address the request\nfor\ntranscripts.  On July 19,  2017,  the Public Access Bureau received a Request for Review from\n\ncontesting only the City' s denial of the recordings. \n\nOn July 24,  2017,  the Public Access Bureau sent a copy of the Request for\n\nReview to the City and asked it to provide copies of the officer -worn body camera recordings it\nhad withheld together with a detailed explanation of the factual and legal bases for its assertion\nthat the recordings are exempt\n\nfrom disclosure under section 7. 5( cc)  of FOIA.  On July 24,  2017, \n\n500 South Second Street,  Springfield, Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Brenda Hunsley\nAugust 31,  2017\n\nPage 2\n\ncontacted this office stating that he \" was,  in fact,  the subject of the video in\n\nquestion.\"'  On August\nreview and a written response.  On August 4,  2017,  this office forwarded the City' s written\nresponse to\n\n1,  2017,  the City furnished copies of the recordings for our confidential\n\nhe did not reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 Ill. 2d 390, 415 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 7. 5( cc)  of FOIA and Section 10- 20( b)  of the Body Camera Act\n\nSection 7. 5( cc)  of FOIA exempts from inspection and copying \"[ r] ecordings made\n\nunder the Law Enforcement Officer -Worn Body Camera Act [ Body Camera Act],  except to the\nextent authorized under that Act.\" ( Emphasis added.)  Section 10- 20( b)  of the Body Camera\nAct ( 50 ILCS 706/ 10- 20( b) ( West 2016))  provides: \n\nb)  Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1)  if the subject of the encounter has a reasonable\n\nexpectation of privacy,  at the time of the recording,  any\nrecording which is flagged,  due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention,  or\n\nresulting death or body harm,  shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness;  and\n\nB)  the law enforcement agency obtains\nwritten permission of the subject or the subject' s\nlegal representative; \n\nE- mail\nGeneral ( July 24,  2017). \n\nfrom\n\nto Barbara Yattoni, [ Administrative Clerk],  Office of the Attorney\n\n\fMs.  Brenda Hunsley\nAugust 31,  2017\n\nPage 3\n\n2)  except as provided in paragraph ( 1)  of this\n\nsubsection ( b),  any recording which is flagged due to the\nfiling of a complaint,  discharge of a firearm,  use of force, \narrest or detention,  or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act;  and\n\n3)  upon request,  the law enforcement agency shall\n\ndisclose,  in accordance with the Freedom of Information\nAct,  the recording to the subject of the encounter captured\non the recording or to the subject' s attorney,  or the officer\nor his or her legal representative. \n\nSection 10- 20( a)( 7)( B)  of the Body Camera Act provides: \n\nA] ny and all recordings made with an officer -worn body\ncamera must be destroyed [ after 90 days],  unless any\nencounter captured on the recording has been flagged.  An\nencounter is deemed to be flagged when: \n\ni)  a formal or informal complaint has been filed; \n\nii)  the officer discharged his or her firearm or used\n\nforce during the encounter; \n\niii) death or great bodily harm occurred to any\n\nperson in the recording; \n\niv) the encounter resulted in a detention or an\narrest,  excluding traffic stops which resulted in only a\nminor traffic offense or business offense; \n\nv)  the officer is the subject of an internal\ninvestigation or otherwise being investigated for possible\n\nmisconduct; \n\nvi)  the supervisor of the officer, prosecutor, \ndefendant,  or court determines that the encounter has\nevidentiary value in a criminal prosecution;  or\n\n\fMs.  Brenda Hunsley\nAugust 31,  2017\n\nPage 4\n\nvii)  the recording officer requests that the video be\n\nflagged for official purposes related to his or her official\nduties. \n\nThe City' s response stated that the withheld recordings capture \" follow up\n\nconducted on February 28,  2017 by Sgt.  Joe Behl and Lt.  Andrew Dodd related to an altercation\nthat took place between\nand a family member of a suspect in Domestic Violence call\nfrom service on February 27,  2017.\" 2 The City further stated that although the officer -worn body\ncamera recordings of the incident on February 27,  2017,  were flagged,  the requested recordings\ncaptured by the sergeant and lieutenant from February 28,  2017,  were not flagged.  The City\nasserted that it did not provide\nwere not flagged and because he was not the subject of the encounter captured on the recordings. \n\nwith copies of the recordings because the recordings\n\nThe Public Access Bureau has previously determined that,  under section 10- 20( b) \nof the Body Camera Act, the subject of the encounter may obtain copies of an officer worn body\ncamera recording even if the recording has not been flagged.  See Ill. Att'y Gen. PAC Req.  Rev. \nLtr. 46719,  issued August 16,  2017, at 5;  Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 41069,  issued,  July\n20, 2016, at 4.  The plain language of section 10- 20( b)( 3)  of the Body Camera Act (50 ILCS\n706/ 10- 20(b)( 3) ( West 2016)) restricts the disclosure of a non -flagged recording to the subject of\nthe encounter captured on the recordings,  the subject' s attorney,  the officer who captured the\nrecording,  and the officers legal representative. \n\nasserted that he is authorized to receive copies of the recordings\nbecause he was the subject of the videos.  As noted above,  section 10- 20( b)( 3)  of the Body\nCamera Act permits the \" subject of the encounter\"  appearing on the recording to receive copies\nof the recording.  Although the Body Camera Act does not define the term \" subject of the\nencounter,\"  it does define \" law enforcement -related encounters or activities\"  as \" traffic stops, \npedestrian stops,  arrests,  searches,  interrogations, \ninvestigations,  pursuits,  crowd control,  traffic\ncontrol,  non -community caretaking interactions with an individual while on patrol,  or any other\ninstance in which the officer is enforcing the laws of the municipality,  county,  or State.\"  50\nILCS 706/ 10- 10 ( West 2016).  Thus, the \" subject of the encounter\"  is the person who interacted\nwith a law enforcement officer in the course of a law enforcement activity. \n\nBased on our review of the withheld recordings, \n\ndoes not appear on\nthe recordings.  Accordingly,  he is not the subject of the encounter captured on the recordings. \nis not the attorney of the subject of the\nFurther, based on the available information, \nencounter,  one of the officers who captured the recordings,  or the legal representative of one of\n\nHartman,  Assistant Attorney General,  Public Access Bureau ( August 1,  2017),  at 2. \n\n2Letter from Brenda M.  Hunsley,  FOIA Records Clerk,  Springfield Police Department,  to Matt\n\n\fMs. Brenda Hunsley\nAugust 31,  2017\n\nPage 5\n\nis not one\nthe officers.  Because the recordings have not been flagged and because\nof the persons who are authorized to obtain copies of non -flagged recordings under section 10- \n20( b)( 3)  of the Body Camera Act, this office concludes that the City did not improperly withhold\ncopies of the body camera recordings from\n\npursuant to section 7. 5( cc)  of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This correspondence serves to close this matter.  If\nyou have questions,  you may contact me at ( 217)  782- 9054 or the Springfield address listed at\nthe bottom of the first page. \n\nVery truly yours, \n\nT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n48793 f 75cc proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera recordings of a dispatch incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-48793/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nAugust 31, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Brenda Hunsley\nFOIA Records Clerk\n\nSpringfield Police Department\n\nCity of Springfield\n[street address redacted for site publication -- see original PDF]\nbrenda.hunsley@springfield. il.us\n\nRE: FOIA Request for Review — 2017 PAC 48793\n\nDear\n\nand Ms. Hunsley: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons explained below, the\nPublic Access Bureau concludes that the City of Springfield (City) did not improperly withhold\nrecordings responsive to\n\nFOIA request. \n\nOn July 17, 2017, \n\nsubmitted a FOIA request to the City seeking\n\nofficer -worn body camera recordings and transcripts of the supervisors who were dispatched to\n2127 East Stuart on February 27, 2017. On July 18, 2017, the City denied the recordings citing\nsection 7. 5(cc) of FOIA (5 ILCS 150/ 7. 5(cc) (West 2016)), but did not address the request\nfor\ntranscripts. On July 19, 2017, the Public Access Bureau received a Request for Review from\n\ncontesting only the City's denial of the recordings. \n\nOn July 24, 2017, the Public Access Bureau sent a copy of the Request for\n\nReview to the City and asked it to provide copies of the officer -worn body camera recordings it\nhad withheld together with a detailed explanation of the factual and legal bases for its assertion\nthat the recordings are exempt\n\nfrom disclosure under section 7. 5(cc) of FOIA. On July 24, 2017, \n\ncontacted this office stating that he \" was, in fact, the subject of the video in\n\nquestion.\"' On August\nreview and a written response. On August 4, 2017, this office forwarded the City's written\nresponse to\n\n1, 2017, the City furnished copies of the recordings for our confidential\n\nhe did not reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). \n\nSection 7. 5(cc) of FOIA and Section 10- 20(b) of the Body Camera Act\n\nSection 7. 5(cc) of FOIA exempts from inspection and copying \"[ r] ecordings made\n\nunder the Law Enforcement Officer -Worn Body Camera Act [ Body Camera Act], except to the\nextent authorized under that Act.\" (Emphasis added.) Section 10- 20(b) of the Body Camera\nAct (50 ILCS 706/ 10- 20(b) (West 2016)) provides: \n\nb) Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1) if the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\n\nresulting death or body harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject's\n\n2) except as provided in paragraph (1) of this\n\nsubsection (b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. \n\nSection 10- 20(a)(7)(B) of the Body Camera Act provides: \n\nA] ny and all recordings made with an officer -worn body\ncamera must be destroyed [ after 90 days], unless any\nencounter captured on the recording has been flagged. An\nencounter is deemed to be flagged when: \n\ni) a formal or informal complaint has been filed; \n\nii) the officer discharged his or her firearm or used\n\nforce during the encounter; \n\niii) death or great bodily harm occurred to any\n\nperson in the recording; \n\niv) the encounter resulted in a detention or an\narrest, excluding traffic stops which resulted in only a\nminor traffic offense or business offense; \n\nv) the officer is the subject of an internal\n\nvii) the recording officer requests that the video be\n\nflagged for official purposes related to his or her official\nduties. \n\nThe City's response stated that the withheld recordings capture \" follow up\n\nconducted on February 28, 2017 by Sgt. Joe Behl and Lt. Andrew Dodd related to an altercation\nthat took place between\nand a family member of a suspect in Domestic Violence call\nfrom service on February 27, 2017.\" 2 The City further stated that although the officer -worn body\ncamera recordings of the incident on February 27, 2017, were flagged, the requested recordings\ncaptured by the sergeant and lieutenant from February 28, 2017, were not flagged. The City\nasserted that it did not provide\nwere not flagged and because he was not the subject of the encounter captured on the recordings. \n\nwith copies of the recordings because the recordings\n\nThe Public Access Bureau has previously determined that, under section 10- 20(b) \nof the Body Camera Act, the subject of the encounter may obtain copies of an officer worn body\ncamera recording even if the recording has not been flagged. See Ill. Att'y Gen. PAC Req. Rev. \nLtr. 46719, issued August 16, 2017, at 5; Ill. Att'y Gen. PAC Req. Rev. Ltr. 41069, issued, July\n20, 2016, at 4. The plain language of section 10- 20(b)(3) of the Body Camera Act (50 ILCS\n706/ 10- 20(b)(3) (West 2016)) restricts the disclosure of a non -flagged recording to the subject of\nthe encounter captured on the recordings, the subject's attorney, the officer who captured the\nrecording, and the officers legal representative. \n\nasserted that he is authorized to receive copies of the recordings\nbecause he was the subject of the videos. As noted above, section 10- 20(b)(3) of the Body\nCamera Act permits the \" subject of the encounter\" appearing on the recording to receive copies\nof the recording. Although the Body Camera Act does not define the term \" subject of the\nencounter,\" it does define \" law enforcement -related encounters or activities\" as \" traffic stops, \npedestrian stops, arrests, searches, interrogations, \ninvestigations, pursuits, crowd control, traffic\ncontrol, non -community caretaking interactions with an individual while on patrol, or any other\ninstance in which the officer is enforcing the laws of the municipality, county, or State.\" 50\nILCS 706/ 10- 10 (West 2016). Thus, the \" subject of the encounter\" is the person who interacted\nwith a law enforcement officer in the course of a law enforcement activity. \n\nBased on our review of the withheld recordings, \n\ndoes not appear on\nthe recordings. Accordingly, he is not the subject of the encounter captured on the recordings. \nis not the attorney of the subject of the\nFurther, based on the available information, \nencounter, one of the officers who captured the recordings, or the legal representative of one of\n\nis not one\nthe officers. Because the recordings have not been flagged and because\nof the persons who are authorized to obtain copies of non -flagged recordings under section 10- \n20(b)(3) of the Body Camera Act, this office concludes that the City did not improperly withhold\ncopies of the body camera recordings from\n\npursuant to section 7. 5(cc) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This correspondence serves to close this matter. If\nyou have questions, you may contact me at (217) 782- 9054 or the Springfield address listed at\nthe bottom of the first page. \n\nVery truly yours, \n\nT HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n48793 f 75cc proper mun"}
{"id":895,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-12-06","case_number":null,"request_numbers":["48891","49032"],"title":"Village of Skokie improperly withheld police records and 9-1-1 recordings under 7(1)(b) etc","filename":"48891 49032, issued December 6, 2017.pdf","rel_path":null,"word_count":3079,"summary":"The PAC determined that the Village of Skokie improperly denied requests for police reports and 9-1-1 recordings related to a retail theft and homicide, finding that the Village failed to meet its burden of proving the records were exempt from disclosure.","plain_summary":"A reporter requested police records and 9-1-1 calls related to a high-profile crime, but the Village of Skokie denied the request entirely, citing exemptions under the Freedom of Information Act. The Illinois Attorney General's Public Access Bureau reviewed the case and concluded that the Village did not meet its burden to prove by clear and convincing evidence that the records were exempt from disclosure. The Bureau determined that the Village improperly denied the requested records in their entireties.","holding":"The Village of Skokie improperly withheld the requested police reports and 9-1-1 recordings in their entireties.","legal_question":"Whether the Village of Skokie properly invoked FOIA exemptions to withhold police reports and 9-1-1 recordings in their entirety.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(iv)"],"public_body":"Village of Skokie","requesting_party":"Jonah Meadows (Patch)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The records concern a retail theft and subsequent homicide involving an Uber driver in Skokie.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/Waiver/48891%2049032%2C%20issued%20December%206%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","9-1-1 recordings","FOIA denial","privacy exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember\n\n6,  2017\n\nVia electronic mail\n\nMr.  Jonah Meadows\n\nNorth Shore Editor\n\nPatch\n\njonah.meadows@patch.com\n\nVia electronic mail\n\nMr.  Phillip Love\nMr. Nicholas Wyatt\n\nFreedom of Information Act Officers\n\nVillage of Skokie\n\n5127 Oakton Street\n\n[street address redacted for site publication -- see original PDF]\nphillip. love@skokie. org\nfoia@skokie. org\n\nRE:  FOIA Requests for Review— 2017 PAC 48891;  2017 PAC 49032\n\nDear Mr. Meadows, Mr. Love,  and Mr. Wyatt: \n\nThis determination is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons stated below, the\nPublic Access Bureau concludes that the Village of Skokie ( Village)  improperly denied in their\nentireties the requested police report,  9- 1-\nJonah Meadows. \n\n1 recordings,  and related records requested by Mr. \n\nMr. Meadows,  on behalf of Patch,  submitted two FOIA requests to the Village\n\nseeking information about the retail theft at the Walmart on Touhy Avenue and subsequent\nemergency calls.  These requested records concern a well- publicized theft of a knife and machete\nfrom a Walmart\n2017. 1\n\nin Skokie and the stabbing and hacking death of an Uber driver,  on May 30, \n\ndetails revealed in murder of Uber driver in Lincolnwood,  WGN9 ( May 31,  2017,  3: 51 p.m.,  updated June I,  2017, \n\nSee,  e.g., Tonya Francisco,  Elyse Russo,  and Gaynor Hall, ' Help me!  I' m going to die':  New\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Jonah Meadows\n\nMr.  Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6,  2017\n\nPage 2\n\nOn July 13,  2017,  Mr.  Meadows submitted a FOIA request\n\nto the Village seeking\nreceived by\ncopies of calls for service regarding an incident on the\nthe Skokie Police Department between May 30,  2017,  and June 1,  2017,  and associated records. \nThat same day the Village denied the request pursuant\nFOIA ( 5 ILCS 140/ 7( 1)( d)( i), (\n\nto sections 7( 1)( d)( i)  and 7( 1)( d)( vii)  of\n1)( d)( vii) ( West 2016)).  On August 3,  2017,  this office received\n\nMr. Meadows' s Request for Review ( 2017 PAC 49032)  contesting that denial. \n\nOn July 20,  2017,  Mr. Meadows submitted a FOIA request\n\nto the Village seeking\n\na copy of \"[a] ll incident and investigatory records concerning any reports of retail theft at the\nWal- Mart, 3626 Touhy Avenue, between April 31 and July 1,  2017.\" 2 On July 25,  2017, the\nVillage provided responsive records but redacted certain portions pursuant to sections 7( 1)( a), \n\n7( 1)( b),  7( 1)( c),  and 7( 1)( d)( iv)  of FOIA ( 5 ILCS 140/ 7( 1)( a), (\n\n1)( b), ( 1)( c), (\n\n1)( d)( iv) ( West\n\n2016)).  On that same day,  Mr. Meadows asked the Village if any records were withheld and the\nVillage responded that report 17- 04622 was withheld pursuant to section 7( 1)( d)( i)  of FOIA (5\nILCS 140/ 7( 1)( d)( i) ( West 2016)).  On July 25,  2017,  this office received Mr.  Meadows'  Request\nfor Review ( 2017 PAC 48891)  contesting the denial of the withheld report. \n\nThe Public Access Bureau forwarded a copy of each of Mr. Meadows'  Requests\n\nfor Review to the Village and asked it to provide copies of the withheld records,  as well as a\ndetailed written explanation of the factual and legal bases for withholding the requested records\nin their entireties.  The Village provided this office the requested records for our confidential\n\nreview,  and a substantially similar response to each matter containing an affidavit from Robert\nLaMantia,  Chief of Police for the Village of Lincolnwood,  explaining why the records were\nwithheld.  This office forwarded a copy of each of the Village' s responses including the affidavit\nto Mr.  Meadows;  he submitted a reply for each file.  This office has consolidated these files for\npurposes of this determination because they involve the same parties and same issues. \n\n4: 11 a. m.),  http:// wgntv. com/ 2017/ 05/ 31/ help- me- im- going- to- die- new- details- revealed- in- murder- of-uber- driver- \nin- Lincolnwood/;  Mitchell Armentrout,  Girl stole knife,  machete before attacking Uber driver:  prosecutors, \nCHICAGO SUN -TIMES ( June 3,  2017,  2: 28 a. m.),  https:// chicago.suntimes. com/ news/ police- 34- year-old- man- \nstabbed- to-death- in- Lincolnwood/;  Susan Berger, Family of Uber driver killed with stolen knife, machete sues\nWalmart,  CHICAGO TRIBUNE ( June 26,  2017),  http:// www. chicagotribune. com/ news/ local/ breaking/ ct- uber- \ndriver- ki Iled- fami ly- sues- walmart- met- 20170626- story. htm I. \n\n2E -mail from Jonah Meadows,  North Shore Editor,  Patch to [ Skokie]  FOIA ( July 20,  2017). \n\n\fMr.  Jonah Meadows\n\nMr.  Phillip Love\nMr.  Nicholas Wyatt\n\nDecember 6,  2017\n\nPage 3\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nopen to inspection or copying.\" \nIllinois Dept. ofPublic Health,  218 Ill. 2d 390, 415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be narrowly construed.  Lieber v. \nBoard of Trustees of Southern Illinois Univ.,  176 Ill. 2d 401,  408 ( 1997). \n\nConsolidation\n\nAs a preliminary matter we note that in his Request for Review ( 2017 PAC\n\n48891),  Mr. Meadows informed our office that he had no objection to consolidating his file with\nIndeed,  this\nother Requests for Review concerning the same records,  such as 2017 PAC 48351. \noffice previously received a Request for Review from Mr. Andrew Schroedter, on behalf of CBS\n2 Chicago,  seeking reports related to the shoplifting incident at the Walmart and related 9- 1-\n1\ncalls ( 2017 PAC 48351).  The Village inadvertently sent Mr. Schroedter copies of the withheld\npolice report,  communications event report,  and 9- 1-\nclosed.  Because the Village inadvertently disclosed the records,  its disclosure to Mr. Schroedter\nwas not an intentional relinquishment, and thus it did not waive its right to assert exemptions in\n\n1 audio and,  therefore,  that matter was\n\nthe present matters.  See Gallagher v.  Lenart,  226 111.  2d 208,  229 ( 2007) (\"'[ w] aiver arises from\n\nan affirmative act, is consensual,  and consists of an intentional relinquishment of a known\n\nright.\") ( internal citations omitted).  Therefore, we will review Mr. Meadows's matters on the\n\nmerits. \n\nSection 7( 1)( d)  of FOIA\n\nSection 7( 1)( d)  of FOIA exempts from disclosure, in pertinent part: \n\nd)  Records in the possession of any public body created in\nthe course of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni)  interfere with pending or actually and reasonably\n\ncontemplated law enforcement proceedings conducted by\nany law enforcement or correctional agency that is the\nrecipient of the request[.] \n\n\fMr.  Jonah Meadows\n\nMr.  Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6,  2017\n\nPage 4\n\niii) create a substantial likelihood that a person will\n\nbe deprived of a fair trial or an impartial hearing; \n\nvii)  obstruct an ongoing criminal\n\ninvestigation by\n\nthe agency that is the recipient of the request. \n\n7( 1)( d)( iii) of FOIA\n\nSection 7( 1)( d)( iii) of FOIA corresponds with a provision of Federal FOIA ( 5\n\nU. S. C.  552( b)( 7)( B) ( 2012))  which exempts from disclosure records compiled for law\n\nenforcement purposes to the extent that disclosure would \" deprive a person of a right to a fair\n\ntrial or an impartial adjudication.\"  Illinois courts have recognized that because Illinois' FOIA\n\nstatute is based on the Federal FOIA statute,  decisions construing the latter,  while not\ncontrolling,  may provide helpful and relevant precedents in construing the state Act.  See\nMargolis v.  Director, Ill. Department of Revenue,  180 I11.  App. 3d 1084,  1087 ( 1st Dist.  1989). \nWhile there are no published decisions by Illinois courts analyzing the applicability of section\n7( 1)( d)( iii), Federal courts have held that in order to withhold records pursuant to the \" fair trial\" \nexemption,  a public body must establish: \"( 1) \nimminent;  and ( 2)  that it is more probable than not that disclosure of the material sought would\nseriously interfere with the fairness of those proceedings.\"  Washington Post Co.  v.  U.S.  Dep' t of\nJustice,  863 F. 2d 96,  102 ( D.C.  Cir. 1988);  see also Chiquita Brands Int'1 Inc.  v.  S.E.C.,  805 F. 3d\n\nthat a trial or adjudication is pending or truly\n\n289,  298 ( D. C.  Cir.  2015) ( the exemption applies \" when the release of documents would likely\ndeprive a party of a fair trial[]\"). \n\nIn his affidavit Chief LaMantia stated that a 16 -year old juvenile was arrested and\n\ncharged with first degree murder for the death of Mr. Nelson. i3 Chief LaMantia also stated that\n\nreleasing the records may deprive the suspect of a fair trial because the records would likely\nreceive significant media attention and make it more difficult\nMeadows contends that the Cook County State' s Attorney' s Office has already released a great\ndeal of the highly inflammatory information,  both at the initial bond hearing and subsequent\ncourt hearings,  making it unlikely that anything within the records would deprive the suspect of a\nfair trial. \n\nto assemble a non -biased jury.  Mr. \n\nAffidavit of Robert LaMantia,  Chief of Police,  Village of'  Lincolnwood ( July 10,  2017),  at ¶ 5. \n\n\fMr.  Jonah Meadows\n\nMr.  Phillip Love\nMr.  Nicholas Wyatt\n\nDecember 6,  2017\n\nPage 5\n\nThe Public Access Bureau has reviewed the withheld records which consist of an\n\neight page police report,  an eight page communications event report,  and audio of three 9- 1-\n\n1\n\nemergency calls.  A review of these records and of a sample of information already in the public\ndomain at the time of the FOIA requests reveals that much of the potentially inflammatory\ninformation concerning this highly -publicized incident has already been disclosed to the public.4\nFurther,  the Village' s explanation for the applicability of section 7( 1)( d)( iii) is largely\nconclusory.  The Village has not provided any information on how providing these particular\nrecords to Mr. Meadows would hamper the selection of a non -biased jury or otherwise make it\nmore probable not that the defendant would be deprived of fair trial or impartial hearing. \nAccordingly,  this office concludes that the Village did not sustain its burden of proving by clear\nand convincing evidence that the records are exempt from disclosure under section 7( 1)( d)( iii) of\nFOIA. \n\n7( 1)( d)( i)  and 7( 1)( d)( vii) \n\nAs a threshold matter,  Mr. Meadows contends that sections 7( 1)( d)( i)  and\n\n7( 1)( d)( vii)  are inapplicable to the records in question because the Lincolnwood Police\n\nDepartment rather than the Skokie Police Department\nIn his affidavit, Chief LaMantia averred that Lincolnwood' s Police Department is the lead\nagency in charge of investigating the death,  and that it has been assisted in the investigation by\nthe Skokie Police Department and the North Regional Major Crimes Task Force,  and that the\n\nis the agency conducting the investigation. \n\nSkokie Police Department maintains portions of the investigation file.  Because the available\ninformation indicates that the records at issue concern a pending,  ongoing investigation in which\nthe Skokie Police Department is actively participating,  the Village is not precluded from\nto sections 7( 1)( d)( i)  and\nasserting that the records are exempt\n7( 1)( d)( vii)  of FOIA. \n\nfrom disclosure pursuant\n\nThe classification of information as ' law enforcement'  or ' investigatory'  does not\n\nnecessarily foreclose access unless it can be shown,  in a particular case,  that disclosure would\ninterfere with law enforcement and would,  therefore,  not be in the public interest.\"  Baudin v. \nDepartment of Crystal Lake,  192 I11.  App.  3d 530,  536 ( 2d Dist.  1989).  Conclusory statements\nthat the disclosure of records would obstruct a law enforcement proceeding are insufficient to\nsupport\nChicago,  388 Ill. App.  3d 70,  74- 77 ( 1st Dist. 2009) ( reciting the language of FOIA exemption, \nwithout describing how disclosure would obstruct proceedings,  is inadequate);  see also I11.  Att'y\nGen.  Pub.  Acc.  Op.  No.  17- 001,  issued March 14,  2017 ( the mere commencement of an\n\nthe assertion of the pending law enforcement proceeding exemption.  Day v.  City of\n\nSee,  e. g.  footnote 1 above. \n\n\fMr.  Jonah Meadows\n\nMr.  Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6,  2017\n\nPage 6\n\ninvestigation or prosecution does not constitute clear and convincing evidence that any records\nare exempt from disclosure).  Rather,  a public body must demonstrate how disclosure of records\nwould interfere with or obstruct a criminal prosecution or investigation in order to properly\nwithhold records pursuant\n\nto section 7( 1)( d)( i)  or 7( 1)( d)( vii)  of FOIA. \n\nIn his affidavit Chief LaMantia averred that ( 1) \n\nthe release of records will obstruct\n\nan ongoing investigation because witnesses are still being interviewed,  may need to be re - \ninterviewed as new evidence is obtained from forensic testing and subpoenas,  and therefore,  the\nrelease of the records may cause witnesses to alter his or her testimony,  make them less likely to\ncooperate, or cause subpoenaed recipients to withhold or destroy evidence; 5 and ( 2)  release of\nthe records will interfere with the pending law enforcement proceeding because ( a)  it would\nmake it harder for the investigating agencies to bring the investigation to a proper conclusion and\nto obtain a plea deal or conviction; and ( b)  it would be more difficult to identify fake tips from\nreal tips. 6 Mr. Meadows contends that these arguments are highly speculative. \n\nThe concerns presented in the affidavit are mostly generalized,  and do not explain\n\nhow disclosure of specific types of records or information could interfere with or obstruct the\n\ninvestigation.  A public body sustains its burden of proving by clear and convincing evidence\nthat requested records fall within an exemption by providing \" a detailed justification for its\nclaimed exemption,  addressing the requested documents specifically[.]\"  Day, 388 I11.  App. 3d at\n74 ( emphasis in original and internal quotation marks omitted).  Chief LaMantia' s claims that\nrelease of the records would interfere with the pending law enforcement proceeding by ( 1) \nmaking it harder to bring the investigation to a proper conclusion and to obtain a plea deal; ( 2) \ndiscouraging witness cooperation;  or ( 3)  causing recipients of subpoena to destroy evidence are\nconclusory.  Although Chief LaMantia' s assertion that release of the records will make it more\ndifficult\nmatter,  much of the information in these records appears to have already been provided to the\npublic.  Further,  if the Village could demonstrate that disclosure of any specific information in\nthe records that had not been provided to the public would make it more likely to receive fake\ntips,  it could have asserted that those specific portions are exempt from disclosure pursuant to\n\nto distinguish fake tips from legitimate tips is a valid concern in such a highly publicized\n\nsections 7( 1)( d)( i)  and 7( 1)( d)( vii) and redacted them from the records.  Instead the Village\n\nwithheld the records in their entireties.  Therefore, the Village has not sustained its burden of\n\nproving by clear and convincing evidence that the withheld records are exempt\nin their entireties under sections 7( 1)( d)( i)  or 7( 1)( d)( vii) of FOIA. \n\nfrom disclosure\n\n5Affidavit of Robert LaMantia,  Chief of Police,  Village of Lincolnwood ( July 10,  2017),  at ¶ 8. \n\n10. \n\n6Affidavit of Robert LaMantia, Chief of Police,  Village of Lincolnwood ( July 10,  2017),  at ¶¶ 9- \n\n\fr. Jonah Meadows\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nDecember 6,  2017\n\nPage 7\n\nIn accordance with the conclusions discussed above,  this office requests that the\n\nVillage to provide Mr.  Meadows with copies of the withheld records subject only to permissible\nredactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016),  as amended by Public Acts 100- \n026, effective August 4,  2017;  100- 201,  effective August 18,  2017).  Specifically,  home\naddresses and personal\nFOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2016),  as amended by Public Acts 100- 026,  effective August\n4,  2017;  100- 201,  effective August 18,  2017);  names of the callers and witnesses may be\nredacted pursuant to section 7( 1)( d)( iv)  of FOIA8 ( 5 ILCS 140/ 7( 1)( d)( iv), ( West 2016),  as\n\ntelephone numbers may be redacted pursuant\n\nto sections 7( 1)( b)  of\n\namended by Public Acts 100- 026,  effective August 4,  2017;  100- 201,  effective August 18,  2017); \nand the dates of birth and races of subjects may be redacted pursuant section to 7( 1)( c)  of FOIA\n5 ILCS 140/ 7( 1)( c) ( West 2016),  as amended by Public Acts 100- 026,  effective August 4,  2017; \n100- 201,  effective August 18,  2017). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nEDIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n48891 49032 f 71di\n\nimproper 7ldiii improper 7ldvii improper mun\n\nSection 7( 1)( b)  exempts from disclosure \" private information,\"  which section 2( c- 5)  of FOIA ( 5\n\nILCS I40/ 2( c- 5) ( West 2016))  defines to include \" home or personal telephone numbers\"  and \" home address * * * \n\nexcept as otherwise provided by law or when compiled without possibility of attribution to any person.\" \n\nSection 7( 1)( d)( iv)  of FOIA permits a public body to redact\n\ninformation that would\n\nunavoidably disclose the identity of a confidential source,  confidential\n\ninformation furnished only by the\n\nconfidential source,  or persons who file complaints with or provide information to administrative, \n\ninvestigative, \n\nlaw\n\nenforcement,  or penal agencies[.]\" \n\n9Section 7( 1)( c)  of FOIA exempts \"[ p] ersonal\n\ninformation contained within public records,  the\n\ndisclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\" \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and 9-1-1 recordings in a retail theft and homicide case","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-48891/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember\n\n6, 2017\n\nVia electronic mail\n\nMr. Jonah Meadows\n\nNorth Shore Editor\n\nPatch\n\njonah.meadows@patch.com\n\nVia electronic mail\n\nMr. Phillip Love\nMr. Nicholas Wyatt\n\nFreedom of Information Act Officers\n\nVillage of Skokie\n\n5127 Oakton Street\n\n[street address redacted for site publication -- see original PDF]\nphillip. love@skokie. org\nfoia@skokie. org\n\nRE: FOIA Requests for Review— 2017 PAC 48891; 2017 PAC 49032\n\nDear Mr. Meadows, Mr. Love, and Mr. Wyatt: \n\nThis determination is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Village of Skokie (Village) improperly denied in their\nentireties the requested police report, 9- 1-\nJonah Meadows. \n\n1 recordings, and related records requested by Mr. \n\nMr. Meadows, on behalf of Patch, submitted two FOIA requests to the Village\n\nseeking information about the retail theft at the Walmart on Touhy Avenue and subsequent\nemergency calls. These requested records concern a well- publicized theft of a knife and machete\nfrom a Walmart\n2017. 1\n\nin Skokie and the stabbing and hacking death of an Uber driver, on May 30, \n\ndetails revealed in murder of Uber driver in Lincolnwood, WGN9 (May 31, 2017, 3: 51 p.m., updated June I, 2017, \n\nSee, e.g., Tonya Francisco, Elyse Russo, and Gaynor Hall, ' Help me! I' m going to die': New\n\nOn July 13, 2017, Mr. Meadows submitted a FOIA request\n\nto the Village seeking\nreceived by\ncopies of calls for service regarding an incident on the\nthe Skokie Police Department between May 30, 2017, and June 1, 2017, and associated records. \nThat same day the Village denied the request pursuant\nFOIA (5 ILCS 140/ 7(1)(d)(i), (to sections 7(1)(d)(i) and 7(1)(d)(vii) of\n1)(d)(vii) (West 2016)). On August 3, 2017, this office received\n\nMr. Meadows's Request for Review (2017 PAC 49032) contesting that denial. \n\nOn July 20, 2017, Mr. Meadows submitted a FOIA request\n\nto the Village seeking\n\na copy of \"[a] ll incident and investigatory records concerning any reports of retail theft at the\nWal- Mart, 3626 Touhy Avenue, between April 31 and July 1, 2017.\" 2 On July 25, 2017, the\nVillage provided responsive records but redacted certain portions pursuant to sections 7(1)(a), \n\n7(1)(b), 7(1)(c), and 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(1)(a), (1)(b), (1)(c), (1)(d)(iv) (West\n\n2016)). On that same day, Mr. Meadows asked the Village if any records were withheld and the\nVillage responded that report 17- 04622 was withheld pursuant to section 7(1)(d)(i) of FOIA (5\nILCS 140/ 7(1)(d)(i) (West 2016)). On July 25, 2017, this office received Mr. Meadows' Request\nfor Review (2017 PAC 48891) contesting the denial of the withheld report. \n\nThe Public Access Bureau forwarded a copy of each of Mr. Meadows' Requests\n\nfor Review to the Village and asked it to provide copies of the withheld records, as well as a\ndetailed written explanation of the factual and legal bases for withholding the requested records\nin their entireties. The Village provided this office the requested records for our confidential\n\nreview, and a substantially similar response to each matter containing an affidavit from Robert\nLaMantia, Chief of Police for the Village of Lincolnwood, explaining why the records were\nwithheld. This office forwarded a copy of each of the Village's responses including the affidavit\nto Mr. Meadows; he submitted a reply for each file. This office has consolidated these files for\npurposes of this determination because they involve the same parties and same issues. \n\n4: 11 a. m.), http:// wgntv. com/ 2017/ 05/ 31/ help- me- im- going- to- die- new- details- revealed- in- murder- of-uber- driver- \nin- Lincolnwood/; Mitchell Armentrout, Girl stole knife, machete before attacking Uber driver: prosecutors, \nCHICAGO SUN -TIMES (June 3, 2017, 2: 28 a. m.), https:// chicago.suntimes. com/ news/ police- 34- year-old- man- \nstabbed- to-death- in- Lincolnwood/; Susan Berger, Family of Uber driver killed with stolen knife, machete sues\nWalmart, CHICAGO TRIBUNE (June 26, 2017), http:// www. chicagotribune. com/ news/ local/ breaking/ ct- uber- \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nopen to inspection or copying.\" \nIllinois Dept. ofPublic Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 (1997). \n\nConsolidation\n\nAs a preliminary matter we note that in his Request for Review (2017 PAC\n\n48891), Mr. Meadows informed our office that he had no objection to consolidating his file with\nIndeed, this\nother Requests for Review concerning the same records, such as 2017 PAC 48351. \noffice previously received a Request for Review from Mr. Andrew Schroedter, on behalf of CBS\n2 Chicago, seeking reports related to the shoplifting incident at the Walmart and related 9- 1-\n1\ncalls (2017 PAC 48351). The Village inadvertently sent Mr. Schroedter copies of the withheld\npolice report, communications event report, and 9- 1-\nclosed. Because the Village inadvertently disclosed the records, its disclosure to Mr. Schroedter\nwas not an intentional relinquishment, and thus it did not waive its right to assert exemptions in\n\n1 audio and, therefore, that matter was\n\nthe present matters. See Gallagher v. Lenart, 226 111. 2d 208, 229 (2007) (\"'[ w] aiver arises from\n\nan affirmative act, is consensual, and consists of an intentional relinquishment of a known\n\nright.\") (internal citations omitted). Therefore, we will review Mr. Meadows's matters on the\n\nmerits. \n\nSection 7(1)(d) of FOIA\n\nSection 7(1)(d) of FOIA exempts from disclosure, in pertinent part: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\n\niii) create a substantial likelihood that a person will\n\nbe deprived of a fair trial or an impartial hearing; \n\nvii) obstruct an ongoing criminal\n\ninvestigation by\n\nthe agency that is the recipient of the request. \n\n7(1)(d)(iii) of FOIA\n\nSection 7(1)(d)(iii) of FOIA corresponds with a provision of Federal FOIA (5\n\nU. S. C. 552(b)(7)(B) (2012)) which exempts from disclosure records compiled for law\n\nenforcement purposes to the extent that disclosure would \" deprive a person of a right to a fair\n\ntrial or an impartial adjudication.\" Illinois courts have recognized that because Illinois' FOIA\n\nstatute is based on the Federal FOIA statute, decisions construing the latter, while not\ncontrolling, may provide helpful and relevant precedents in construing the state Act. See\nMargolis v. Director, Ill. Department of Revenue, 180 I11. App. 3d 1084, 1087 (1st Dist. 1989). \nWhile there are no published decisions by Illinois courts analyzing the applicability of section\n7(1)(d)(iii), Federal courts have held that in order to withhold records pursuant to the \" fair trial\" \nexemption, a public body must establish: \"(1) \nimminent; and (2) that it is more probable than not that disclosure of the material sought would\nseriously interfere with the fairness of those proceedings.\" Washington Post Co. v. U.S. Dep' t of\nJustice, 863 F. 2d 96, 102 (D.C. Cir. 1988); see also Chiquita Brands Int'1 Inc. v. S.E.C., 805 F. 3d\n\nthat a trial or adjudication is pending or truly\n\n289, 298 (D. C. Cir. 2015) (the exemption applies \" when the release of documents would likely\ndeprive a party of a fair trial[]\"). \n\nIn his affidavit Chief LaMantia stated that a 16 -year old juvenile was arrested and\n\ncharged with first degree murder for the death of Mr. Nelson. i3 Chief LaMantia also stated that\n\nreleasing the records may deprive the suspect of a fair trial because the records would likely\nreceive significant media attention and make it more difficult\nMeadows contends that the Cook County State's Attorney's Office has already released a great\ndeal of the highly inflammatory information, both at the initial bond hearing and subsequent\ncourt hearings, making it unlikely that anything within the records would deprive the suspect of a\nfair trial. \n\nto assemble a non -biased jury. Mr. \n\nAffidavit of Robert LaMantia, Chief of Police, Village of' Lincolnwood (July 10, 2017), at ¶ 5. \n\nThe Public Access Bureau has reviewed the withheld records which consist of an\n\neight page police report, an eight page communications event report, and audio of three 9- 1-\n\n1\n\nemergency calls. A review of these records and of a sample of information already in the public\ndomain at the time of the FOIA requests reveals that much of the potentially inflammatory\ninformation concerning this highly -publicized incident has already been disclosed to the public.4\nFurther, the Village's explanation for the applicability of section 7(1)(d)(iii) is largely\nconclusory. The Village has not provided any information on how providing these particular\nrecords to Mr. Meadows would hamper the selection of a non -biased jury or otherwise make it\nmore probable not that the defendant would be deprived of fair trial or impartial hearing. \nAccordingly, this office concludes that the Village did not sustain its burden of proving by clear\nand convincing evidence that the records are exempt from disclosure under section 7(1)(d)(iii) of\nFOIA. \n\n7(1)(d)(i) and 7(1)(d)(vii) \n\nAs a threshold matter, Mr. Meadows contends that sections 7(1)(d)(i) and\n\n7(1)(d)(vii) are inapplicable to the records in question because the Lincolnwood Police\n\nDepartment rather than the Skokie Police Department\nIn his affidavit, Chief LaMantia averred that Lincolnwood's Police Department is the lead\nagency in charge of investigating the death, and that it has been assisted in the investigation by\nthe Skokie Police Department and the North Regional Major Crimes Task Force, and that the\n\nis the agency conducting the investigation. \n\nSkokie Police Department maintains portions of the investigation file. Because the available\ninformation indicates that the records at issue concern a pending, ongoing investigation in which\nthe Skokie Police Department is actively participating, the Village is not precluded from\nto sections 7(1)(d)(i) and\nasserting that the records are exempt\n7(1)(d)(vii) of FOIA. \n\nfrom disclosure pursuant\n\nThe classification of information as ' law enforcement' or ' investigatory' does not\n\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. \nDepartment of Crystal Lake, 192 I11. App. 3d 530, 536 (2d Dist. 1989). Conclusory statements\nthat the disclosure of records would obstruct a law enforcement proceeding are insufficient to\nsupport\nChicago, 388 Ill. App. 3d 70, 74- 77 (1st Dist. 2009) (reciting the language of FOIA exemption, \nwithout describing how disclosure would obstruct proceedings, is inadequate); see also I11. Att'y\n\ninvestigation or prosecution does not constitute clear and convincing evidence that any records\nare exempt from disclosure). Rather, a public body must demonstrate how disclosure of records\nwould interfere with or obstruct a criminal prosecution or investigation in order to properly\nwithhold records pursuant\n\nto section 7(1)(d)(i) or 7(1)(d)(vii) of FOIA. \n\nIn his affidavit Chief LaMantia averred that (1) \n\nthe release of records will obstruct\n\nan ongoing investigation because witnesses are still being interviewed, may need to be re - \ninterviewed as new evidence is obtained from forensic testing and subpoenas, and therefore, the\nrelease of the records may cause witnesses to alter his or her testimony, make them less likely to\ncooperate, or cause subpoenaed recipients to withhold or destroy evidence; 5 and (2) release of\nthe records will interfere with the pending law enforcement proceeding because (a) it would\nmake it harder for the investigating agencies to bring the investigation to a proper conclusion and\nto obtain a plea deal or conviction; and (b) it would be more difficult to identify fake tips from\nreal tips. 6 Mr. Meadows contends that these arguments are highly speculative. \n\nThe concerns presented in the affidavit are mostly generalized, and do not explain\n\nhow disclosure of specific types of records or information could interfere with or obstruct the\n\ninvestigation. A public body sustains its burden of proving by clear and convincing evidence\nthat requested records fall within an exemption by providing \" a detailed justification for its\nclaimed exemption, addressing the requested documents specifically[.]\" Day, 388 I11. App. 3d at\n74 (emphasis in original and internal quotation marks omitted). Chief LaMantia's claims that\nrelease of the records would interfere with the pending law enforcement proceeding by (1) \nmaking it harder to bring the investigation to a proper conclusion and to obtain a plea deal; (2) \ndiscouraging witness cooperation; or (3) causing recipients of subpoena to destroy evidence are\nconclusory. Although Chief LaMantia's assertion that release of the records will make it more\ndifficult\nmatter, much of the information in these records appears to have already been provided to the\npublic. Further, if the Village could demonstrate that disclosure of any specific information in\nthe records that had not been provided to the public would make it more likely to receive fake\ntips, it could have asserted that those specific portions are exempt from disclosure pursuant to\n\nto distinguish fake tips from legitimate tips is a valid concern in such a highly publicized\n\nsections 7(1)(d)(i) and 7(1)(d)(vii) and redacted them from the records. Instead the Village\n\nwithheld the records in their entireties. Therefore, the Village has not sustained its burden of\n\nproving by clear and convincing evidence that the withheld records are exempt\nin their entireties under sections 7(1)(d)(i) or 7(1)(d)(vii) of FOIA. \n\nfrom disclosure\n\n5 Affidavit of Robert LaMantia, Chief of Police, Village of Lincolnwood (July 10, 2017), at ¶ 8. \n\n10. \n\n6 Affidavit of Robert LaMantia, Chief of Police, Village of Lincolnwood (July 10, 2017), at ¶¶ 9- \n\nIn accordance with the conclusions discussed above, this office requests that the\n\nVillage to provide Mr. Meadows with copies of the withheld records subject only to permissible\nredactions under section 7 of FOIA (5 ILCS 140/ 7 (West 2016), as amended by Public Acts 100- \n026, effective August 4, 2017; 100- 201, effective August 18, 2017). Specifically, home\naddresses and personal\nFOIA (5 ILCS 140/ 7(1)(b) (West 2016), as amended by Public Acts 100- 026, effective August\n4, 2017; 100- 201, effective August 18, 2017); names of the callers and witnesses may be\nredacted pursuant to section 7(1)(d)(iv) of FOIA8 (5 ILCS 140/ 7(1)(d)(iv), (West 2016), as\n\ntelephone numbers may be redacted pursuant\n\nto sections 7(1)(b) of\n\namended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017); \nand the dates of birth and races of subjects may be redacted pursuant section to 7(1)(c) of FOIA\n5 ILCS 140/ 7(1)(c) (West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; \n100- 201, effective August 18, 2017). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nEDIE STEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n48891 49032 f 71di\n\nimproper 7ldiii improper 7ldvii improper mun\n\nSection 7(1)(b) exempts from disclosure \" private information,\" which section 2(c- 5) of FOIA (5\n\nILCS I40/ 2(c- 5) (West 2016)) defines to include \" home or personal telephone numbers\" and \" home address * * * \n\nexcept as otherwise provided by law or when compiled without possibility of attribution to any person.\" \n\nSection 7(1)(d)(iv) of FOIA permits a public body to redact\n\ninformation that would\n\nunavoidably disclose the identity of a confidential source, confidential\n\ninformation furnished only by the\n\nconfidential source, or persons who file complaints with or provide information to administrative, \n\ninvestigative, \n\nlaw\n\nenforcement, or penal agencies[.]\" \n\n9 Section 7(1)(c) of FOIA exempts \"[ p] ersonal\n\ninformation contained within public records, the\n\ndisclosure of which would constitute a clearly unwarranted invasion of personal privacy[.]\""}
{"id":896,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-11-21","case_number":null,"request_numbers":["49142"],"title":"Macoupin County Sheriff's Department properly denied jail security records under 7(1)(d)(vi)","filename":"49142, issued November 21, 2017.pdf","rel_path":null,"word_count":1792,"summary":"The requester sought jail inspection records and electronically recorded rounds from the Macoupin County Sheriff's Department, which were denied based on security concerns and the non-existence of the inspection report. The PAC determined the Sheriff's Department did not improperly withhold the records.","plain_summary":"A former employee of the Macoupin County Sheriff's Department requested copies of the department's annual jail inspection report for 2017 and electronic records of security rounds from 2015 to support a potential legal claim. The Sheriff's Department initially denied the request for the round records under section 2.15(c) of FOIA and stated that the 2017 inspection report had not yet been created. After review, the Illinois Attorney General's Public Access Bureau concluded that the round records were exempt from disclosure under section 7(1)(d)(vi) of FOIA, because releasing the detailed staffing and location information could endanger the life or physical safety of law enforcement personnel or any other person. The Bureau also noted that FOIA does not require public bodies to answer questions or create records in response to a request.","holding":"The Macoupin County Sheriff's Department did not improperly withhold records responsive to the FOIA request.","legal_question":"Whether the Sheriff's Department properly denied a FOIA request for security-related jail records and whether it was required to answer the requester's specific questions regarding those records.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(v)"],"public_body":"Macoupin County Sheriff's Department","requesting_party":"Anonymous (redacted in source text)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved jail inspection reports and electronic logs of security rounds conducted by jail staff.","ocr_status":"ok","ocr_quality":92.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vi/49142%2C%20issued%20November%2021%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["jail records","security rounds","FOIA request","records creation"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 21,  2017\n\nMr. JordanJ. Garrison\nAssistant State' s Attorney\nMacoupin County State' s Attorney' s Office\nP: O.  Box 287\nCarlinville,  Illinois 62626\n\nRE:  FOIA Request for Review — 2017 PAC 49142\n\nDear\n\nand Mr. Garrison: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons thatfollow, the\nPublic Access Bureau concludes that the Macoupin County Sheriffs Department ( Sheriff' s\nDepartment)  did not improperly withhold records responsive to\nFOIA request, \n\nJuly, 23,  2017, \n\nOn that date, \n\nsubmitted a FOIA request\n\nto the Sheriffs Department\n\nseeking acopy of its annual jail: inspection for 2017 and the electronically recorded rounds for\nthree time' periods: January 1,  2015,  through January 7,  2015;  April \"1,- 2015,  through April 7, \n2015,  and;  July 1,  2015,  through July 7,  2015.  On July 27,  2017,  the Sheriffs Department\ndenied the electronically recorded rounds pursuant to section 2.15( c)  of FOIA ( 5 ILCS\n140/ 2. 15( c) ( West 2016))  and stated that the annual\n\ninspection for 2017 had yet to be scheduled. \n\nOn August 10,  2017, this office received\n\nRequest for Review disputing\n\nfor the electronically recorded rounds.  He asserted that the rounds\n\nthe denial of his request\noccurred more than two years ago and thus that disclosure of the information would not pose a\nsecurity risk to thejail.  He also stated that he sought the information in connection with a\npotential\ndemonstrating that he had completed his required rounds while employed with the Sheriffs\nDepartment. \n\nlegal action against the Sheriffs Department and that the records would assist him in\n\n500 South Second Street,  Springfield, \nIllinois 62701 • (\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \nFax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main.  Carbondale_ \n\nIllinois 62901 •  MIR)  5) 9. 6ann .  TTV. / 6I 21 s) o_‘ nna . \n\nc.,,,. ( Al vi con CAI\n\n\fMr. Jordan J.  Garrison\n\nNovember 21,  2017... \nPage 2\n\nOn August 16, 2017,  this office forwarded a copy of the Request for Review to\n\nthe Sheriffs Department and asked' it to provide copies of the records thatwere withheld for.this\noffice' s confidential review,  together with a detailed explanation of the legal and: factual basis for\nthe asserted exemption.:  On August 28,  2017,  this office received those materials from the\nMacoupin County' s State' s Attorney' s Office ( State' s Attorney' s Office)  on behalf ofthe Sheriffs\nDepartment, including both a complete and a redacted 'version of its written response.'  The\nState' s Attorneys Office maintained that the requested records were` exempt from disclosure\nunder section 2. 15( c)  of FOIA but asserted that the records were further exempt pursuant to\nsection 7( 1)( d)( vi)  of FOIA ( 5. ILCS 140/ 7( 1)( d)( vi) (West 2016)). ; On' Septerrtber 1,  2017, this\noffice -forwarded a copy ofthe State's Attorney's Office's redacted response to\nHe\nreplied on September 10,  2017,\"asserting that as a former correctional officer, who had worked\nOfthe Sheriffs Department\nsomeone out of the facility.\" 2\n\nfor 26 years,  he \" ha[ d]  no reason to;cause'harm or try to get\n\nDETERMINATION\n\nAll records m the custody or' possession of a public body are, presumed` to be: `, \nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 (West 2( 16);  Ave also\"Southern Illinoisan v.\" \nIllinois Department ofPublic Health, 218 I11.  2d 390, 415 ( 2006)_  A public body that withholds.' \nrecords \" has the burden of proving by clear and convincing: evidence\"  that the records are' exefnpt\nfrom disclosure.  5 ILCS 140/ 1. 2 ( West 2016):  The exemptions from disclosure are to be\n\nowly.construed.  Lieber v.  Board of Trustees of\n\nLeila is University; 176I11.  2d 401, \n\n407 1997). \n\nAs an initial matter,  this office notes that section 2: 15( c)  of FOIA pertains only to\n\narrest reports.  Section' 7( 1)( d)( vi) of FOIA, however, contains the same language as section' \n2. 15( c)( ii) of FOIA ( 5 ILCS'  140/ 2. 15( c)( ii) (West 2016)),  and section 7( 1)( d)( vi) is not limited\n\nto arrest reports.' \n\nSee 5 ILCS ,140/ 9. 5( d) ( west 2016) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review,  with any alleged confidential\nrequest pertains redacted from the copy.\"). „ \n\ninformation to which the ' \n\nState of Illinois ( September'  10,  2017). \n\n2Letterfrom\n\nto Teresa Lim, Assistant' Attorney General,  Attorney General Office, \n\nSimilarly, section 7( 1)( e)  of FOIA ( 5 ILCS 140/ 7( 1)( e) ( West 2016)),  which exempts from\n\ndisclosure \"[ r] ecords that relate to oraffect the security of correctional\nanalogous to section 2. 15( c)( iii) of FOIA ( 5 ILCS 140/ 2. 15( c)( iii) ( West 2016)). \n\ninstitutions and detention facilities[,]\"  is\n\n\fMr. Jordan J.  Garrison\n\nNovember 21,  2017\n\nPage 3\n\nSection 7( 1)( d)( vi) of FOIA\n\nSection 7( 1)( d)( vi) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n4 * \n\nvi)  endanger the life or physical safety of law\n\nenforcement personnel or any other person[.] \n\nIn its redacted response,  the State' s Attorneys Office stated that the Sheriffs\n\nDepartment' s current staffing and jail monitoring policies and procedures are the same as those\nin effect in 2015.  According to the State' s Attorneys Office, the Macoupin County jail consists\nof two levels with five general population rooms for men,  two for women,  and a work release\nroom.  The Sheriff' s Department' s policy is to check each room every 30 minutes.  During these\nchecks, the State's Attorneys Office stated, the correctional officer on duty records his or her\nround through an electronic machine,  which documents the officers time,  location,  and status of\nthe room.  The State' s Attorney' s Office asserted that disclosure of the recorded information\nwould reveal \"\nincluding\n\nthe times and locations of our correctional officers while on duty[,]\" \nwhen the control room is occupied by only one correctional officer and when officers are away\nfrom certain rooms. 4 The State' s Attomey' s office further asserted: \n\nThe information can be used to aid in breaking individuals out of\nour jail or knowing where a correctional officer is isolated to harm\nhim or her.  Furthermore,  it can be used to help inmates learn the\npattern of our correctional officers to gain opportunities to harm\neach other or staff 151\n\nThis office has reviewed copies of the records documenting the rounds at issue and determined\nthat the records contain detailed information about jail staffing and scheduling.  The information\nincludes the specific times and locations of the correctional officers on duty for each shift and\n\nto Teresa Lim,  Assistant Attorney General,  Public Access Bureau ( August 28,  2017). \n\n4Letter from Jordan J. Garrison, Assistant State's Attorney, State's Attorney of Macoupin County, \n\nto Teresa Lim,  Assistant Attorney General,  Public Access Bureau ( August 28,  2017). \n\n5Letter from Jordan .1.  Garrison,  Assistant State' s Attorney,  State' s Attorney of Macoupin County, \n\n\fMr. Jordan J.  Garrison\n\nNovember 21,  2017\n\nPage 4\n\nsought records of rounds from two years ago,  the State' s\n\nvacant areas of the jail not covered by officers.  This office agrees that the disclosure of such\ndetailed information could endanger the life or physical safety of the correctional officers\nmonitoring the jail by identifying their locations and potential vulnerable spots where officers are\nless supported.  Although\nAttorney' s Office explained that the shift policies and duties of the correctional officers have not\nchanged since 2015.  Consequently,  jail round records from 2015 would still reveal relevant\ndetails about staffing that,  if released,  could pose a risk to the safety of correctional officers who\nmay not have intended to use\ncurrently work at the jail as well as the detainees.  While\nthe records in a manner that would pose any type of safety risk, the disclosure and potential\nfurther dissemination of the records may lead,  inadvertently or otherwise, to a person using the\nrecords in a manner that would pose a significant safety risk to law enforcement\npersonnel.  Accordingly,  this office concludes that the records are exempt\npursuant to section 7( 1)( d)( vi) of FOIA. \n\nfrom disclosure\n\nIn his reply to this office, \ncomplaint.  He stated,  in pertinent part: \n\noffered an alternative option to resolve his\n\nDue to the business of my request and trying to work with the\nsheriff department I will alter my request to the following\nconditions that I think we can all agree to.  If the sheriff\ndepartment will in writing state that all rounds were made in my\nrequest for a total of 48 rounds in a calendar day for all days that I\noriginally requested.  That they will run the print offs on the\ncomputer program stating the rounds for your review to verify that\nthe rounds were made.  I do not need the actual copies of the\nrounds from the program. * * * \n\nIf you see the print outs and all the\nrounds were made on all the days I originally requested then I will\nbe satisfied.  If there are rounds not made that the program shows I\nneed to know the dates and times of the incident and who the\nofficers were on that day and time. 161\n\nWhile the Sheriffs Department may elect to confirm whether or not the rounds at\n\nissue were made, it is not obligated to do so under FOIA, nor is this office authorized to reveal\nthe specific contents of the records the Sheriff' s Department provided for this office' s\nconfidential review.  FOIA does not require a public body to answer questions or create records\nin response to a FOIA request.  Kenyon v. Garrels,  184 Ill. App. 3d 28,  32 ( 4th Dist. 1989). \n\nState of Illinois ( September 10,  2017). \n\n6Letter from\n\nto Teresa Lim, Assistant Attorney General, Attorney General Office, \n\n\fMr. Jordan J.  Garrison\n\nNovember 21,  2017\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n49142 f 71 dvi proper co\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Jail inspection reports and security-round logs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-49142/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nNovember 21, 2017\n\nMr. JordanJ. Garrison\nAssistant State's Attorney\nMacoupin County State's Attorney's Office\nP: O. Box 287\nCarlinville, Illinois 62626\n\nRE: FOIA Request for Review — 2017 PAC 49142\n\nDear\n\nand Mr. Garrison: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons thatfollow, the\nPublic Access Bureau concludes that the Macoupin County Sheriffs Department (Sheriff's\nDepartment) did not improperly withhold records responsive to\nFOIA request, \n\nJuly, 23, 2017, \n\nOn that date, \n\nsubmitted a FOIA request\n\nto the Sheriffs Department\n\nseeking acopy of its annual jail: inspection for 2017 and the electronically recorded rounds for\nthree time' periods: January 1, 2015, through January 7, 2015; April \"1,- 2015, through April 7, \n2015, and; July 1, 2015, through July 7, 2015. On July 27, 2017, the Sheriffs Department\ndenied the electronically recorded rounds pursuant to section 2.15(c) of FOIA (5 ILCS\n140/ 2. 15(c) (West 2016)) and stated that the annual\n\ninspection for 2017 had yet to be scheduled. \n\nOn August 10, 2017, this office received\n\nRequest for Review disputing\n\nfor the electronically recorded rounds. He asserted that the rounds\n\nthe denial of his request\noccurred more than two years ago and thus that disclosure of the information would not pose a\nsecurity risk to thejail. He also stated that he sought the information in connection with a\npotential\ndemonstrating that he had completed his required rounds while employed with the Sheriffs\nDepartment. \n\nlegal action against the Sheriffs Department and that the records would assist him in\n\nOn August 16, 2017, this office forwarded a copy of the Request for Review to\n\nthe Sheriffs Department and asked' it to provide copies of the records thatwere withheld for.this\noffice's confidential review, together with a detailed explanation of the legal and: factual basis for\nthe asserted exemption.: On August 28, 2017, this office received those materials from the\nMacoupin County's State's Attorney's Office (State's Attorney's Office) on behalf ofthe Sheriffs\nDepartment, including both a complete and a redacted 'version of its written response.' The\nState's Attorneys Office maintained that the requested records were` exempt from disclosure\nunder section 2. 15(c) of FOIA but asserted that the records were further exempt pursuant to\nsection 7(1)(d)(vi) of FOIA (5. ILCS 140/ 7(1)(d)(vi) (West 2016)).; On' Septerrtber 1, 2017, this\noffice -forwarded a copy ofthe State's Attorney's Office's redacted response to\nHe\nreplied on September 10, 2017,\"asserting that as a former correctional officer, who had worked\nOfthe Sheriffs Department\nsomeone out of the facility.\" 2\n\nfor 26 years, he \" ha[ d] no reason to;cause'harm or try to get\n\nDETERMINATION\n\nAll records m the custody or' possession of a public body are, presumed` to be: `, \nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2(16); Ave also\"Southern Illinoisan v.\" \nIllinois Department ofPublic Health, 218 I11. 2d 390, 415 (2006)_ A public body that withholds.' \nrecords \" has the burden of proving by clear and convincing: evidence\" that the records are' exefnpt\nfrom disclosure. 5 ILCS 140/ 1. 2 (West 2016): The exemptions from disclosure are to be\n\nowly.construed. Lieber v. Board of Trustees of\n\nLeila is University; 176I11. 2d 401, \n\n407 1997). \n\nAs an initial matter, this office notes that section 2: 15(c) of FOIA pertains only to\n\narrest reports. Section' 7(1)(d)(vi) of FOIA, however, contains the same language as section' \n2. 15(c)(ii) of FOIA (5 ILCS' 140/ 2. 15(c)(ii) (West 2016)), and section 7(1)(d)(vi) is not limited\n\nto arrest reports.' \n\nSee 5 ILCS,140/ 9. 5(d) (west 2016) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential\nrequest pertains redacted from the copy.\"). „ \n\ninformation to which the ' \n\nState of Illinois (September' 10, 2017). \n\n2 Letterfrom\n\nSection 7(1)(d)(vi) of FOIA\n\nSection 7(1)(d)(vi) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n4 * \n\nvi) endanger the life or physical safety of law\n\nenforcement personnel or any other person[.] \n\nIn its redacted response, the State's Attorneys Office stated that the Sheriffs\n\nDepartment's current staffing and jail monitoring policies and procedures are the same as those\nin effect in 2015. According to the State's Attorneys Office, the Macoupin County jail consists\nof two levels with five general population rooms for men, two for women, and a work release\nroom. The Sheriff's Department's policy is to check each room every 30 minutes. During these\nchecks, the State's Attorneys Office stated, the correctional officer on duty records his or her\nround through an electronic machine, which documents the officers time, location, and status of\nthe room. The State's Attorney's Office asserted that disclosure of the recorded information\nwould reveal \"\nincluding\n\nthe times and locations of our correctional officers while on duty[,]\" \nwhen the control room is occupied by only one correctional officer and when officers are away\nfrom certain rooms. 4 The State's Attomey's office further asserted: \n\nThe information can be used to aid in breaking individuals out of\nour jail or knowing where a correctional officer is isolated to harm\nhim or her. Furthermore, it can be used to help inmates learn the\npattern of our correctional officers to gain opportunities to harm\neach other or staff 151\n\nThis office has reviewed copies of the records documenting the rounds at issue and determined\nthat the records contain detailed information about jail staffing and scheduling. The information\nincludes the specific times and locations of the correctional officers on duty for each shift and\n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau (August 28, 2017). \n\n4 Letter from Jordan J. Garrison, Assistant State's Attorney, State's Attorney of Macoupin County, \n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau (August 28, 2017). \n\n5 Letter from Jordan.1. Garrison, Assistant State's Attorney, State's Attorney of Macoupin County, \n\nsought records of rounds from two years ago, the State's\n\nvacant areas of the jail not covered by officers. This office agrees that the disclosure of such\ndetailed information could endanger the life or physical safety of the correctional officers\nmonitoring the jail by identifying their locations and potential vulnerable spots where officers are\nless supported. Although\nAttorney's Office explained that the shift policies and duties of the correctional officers have not\nchanged since 2015. Consequently, jail round records from 2015 would still reveal relevant\ndetails about staffing that, if released, could pose a risk to the safety of correctional officers who\nmay not have intended to use\ncurrently work at the jail as well as the detainees. While\nthe records in a manner that would pose any type of safety risk, the disclosure and potential\nfurther dissemination of the records may lead, inadvertently or otherwise, to a person using the\nrecords in a manner that would pose a significant safety risk to law enforcement\npersonnel. Accordingly, this office concludes that the records are exempt\npursuant to section 7(1)(d)(vi) of FOIA. \n\nfrom disclosure\n\nIn his reply to this office, \ncomplaint. He stated, in pertinent part: \n\noffered an alternative option to resolve his\n\nDue to the business of my request and trying to work with the\nsheriff department I will alter my request to the following\nconditions that I think we can all agree to. If the sheriff\ndepartment will in writing state that all rounds were made in my\nrequest for a total of 48 rounds in a calendar day for all days that I\noriginally requested. That they will run the print offs on the\ncomputer program stating the rounds for your review to verify that\nthe rounds were made. I do not need the actual copies of the\nrounds from the program. * * * \n\nIf you see the print outs and all the\nrounds were made on all the days I originally requested then I will\nbe satisfied. If there are rounds not made that the program shows I\nneed to know the dates and times of the incident and who the\nofficers were on that day and time. 161\n\nWhile the Sheriffs Department may elect to confirm whether or not the rounds at\n\nissue were made, it is not obligated to do so under FOIA, nor is this office authorized to reveal\nthe specific contents of the records the Sheriff's Department provided for this office's\nconfidential review. FOIA does not require a public body to answer questions or create records\nin response to a FOIA request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989). \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n49142 f 71 dvi proper co"}
{"id":897,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-30","case_number":null,"request_numbers":["49942"],"title":"Illinois Department of Natural Resources improperly conditioned FOIA release on data license agreement","filename":"49942, issued October 30, 2018.pdf","rel_path":null,"word_count":4532,"summary":"The requester sought records regarding the gating of Griffith Cave, and the PAC determined the Illinois Department of Natural Resources improperly withheld records by requiring a data license agreement for access to Natural Heritage Database information.","plain_summary":"A requester asked the Illinois Department of Natural Resources for records about the gating of Griffith Cave from 2013 to 2014. The Department provided some records but withheld others, and offered the requester a chance to view certain withheld information if he signed a Data License Agreement. The Public Access Bureau found that the Department did not meet its burden to justify withholding records under sections 7.5(aa) and 7(1)(i) of FOIA, and noted that FOIA does not allow a public body to decline to provide copies when copies are requested. The source document does not state a final ruling on the Data License Agreement issue.","holding":"","legal_question":"Whether a public body may condition the release of public records under FOIA upon the requester's execution of a data license agreement.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"Illinois Department of Natural Resources","requesting_party":"Individual requester","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"records access","subject_description":"The request concerned records related to the gating of Griffith Cave and access to information within the Natural Heritage Database.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_aa/49942%2C%20issued%20October%2030%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["data license agreement","Natural Heritage Database","records access","FOIA compliance"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 30,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr.  John Heidinger\n\nFOIA Officer\n\nIllinois Department of Natural Resources\n\n[street address redacted for site publication -- see original PDF]\nJohn. Heidinger@illinois. gov\n\nRE:  FOIA Request for Review — 2017 PAC 49942\n\nDear\n\nand Mr.  Heidinger: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons that follow,  the\n\nPublic Access Bureau concludes that the Illinois Department of Natural Resources ( Department) \n\nimproperly responded to\n\nSeptember 5,  2017,  FOIA request. \n\nOn September 5,  2017, \n\nsubmitted an amended FOIA request'  to the\n\nDepartment seeking copies of records concerning the gating of Griffith Cave,  from January 1, \n2013,  to December 31,  2014, that had not already been publically released.  On that same date, \nto submit payment for estimated fees for copies of responsive\nthe Department asked\n\nrecords pursuant\n\nto section 6( a- 5)  of FOIA ( 5 ILCS 140/ 6( a- 5) ( West 2016)).  On September 20, \n\n2017,  the Department provided some responsive records to\n\nbut redacted certain\n\ninformation pursuant to sections 7( 1)( b)  and 7( 1)(\n2016),  as amended by Public Acts 100- 026, effective August 4,  2017;  100- 201,  effective August\n18,  2017).  The Department also withheld other records in full pursuant to sections 7( 1)(\n\nc)  of FOIA ( 5 ILCS 140/ 7( 1)( 6), ( 1)( c) ( West\n\nf), \n\nfor Review with this office on August 28,  2017,  contesting the\nDepartment's unduly burdensome categorization of his August 24,  2017,  request,  but he withdrew that Request for\nfor Review pertains to his amended request. \nReview on September\n\n11,  2017.  See 2017 PAC 49430.  This Request\n\nfiled a prior Request\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 • '\n\nFTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  John Heidinger\n\nOctober 30,  2018\n\nPage 2\n\n7( 1)( m),  and 7. 5( aa)  of FOIA ( 5 ILCS 140/ 7( 1)( f), (1)( m) ( West 2016),  as amended by Public\nActs 100- 026,  effective August 4,  2017;  100- 201,  effective August 18,  2017;  5 ILCS 140/ 7. 5( aa) \n\nWest 2016),  as amended by Public Acts 100- 020,  effective July 1,  2017;  100- 201,  effective\nAugust 18,  2017;  100-464,  effective August 28,  2017;  100- 465,  effective August 31,  2017),  as\n\nwell as section 2. 37 of the Wildlife Code ( 520 ILCS 5/ 2. 37 ( West 2016)).  Additionally,  the\nDepartment stated that it was extending its time to respond pursuant\nILCS 140/ 3( e) ( West 2016))  with regard to several non -e- mail records where it needed to\ncommunicate with the authors/ federal government,  to determine if they are exempt. i2\n\nto section 3( e)  of FOIA ( 5\n\nOn September 27,  2017,  the Department sent an additional\n\nrecord to\n\nand denied other information pursuant\n2016),  as amended by Public Acts 100- 026,  effective August 4,  2017;  100- 201,  effective August\n18,  2017).  The Department also stated that\nhad previously declined an opportunity to\nview certain withheld information that would require signing its Data License Agreement,  stating\nthat this requirement was authorized through the Illinois Nature Preserves Commission and the\n\nto section 7( 1) 0)  of FOIA ( 5 ILCS 140/ 7( 1)(\n\ni) ( West\n\nIllinois Endangered Species Protection Board;  the Department offered him the opportunity again. \nFurther,  the Department indicated that it was still checking whether six additional records were\nexempt from disclosure.  On October 4,  2017,  the Department appears to have provided those\n\nrecords to\n\nOn that same date,  this office received correspondence from\n\nindicating that he wished to file a Request\nthe Department' s assertion\nthat he could not view certain responsive records without signing its Data License Agreement, \nand ( 2)  the denial of records under sections 7( 1) 0)  and 7. 5( aa)  of FOIA.  On October 18,  2017, \n\nfor Review contesting ( 1) \n\nsubmitted the additional materials necessary to file a Request for Review of the\n\nDepartment' s partial denial of his request on those grounds. \n\nfor Review to\nOn October 19,  2017,  this office forwarded a copy of the Request\nthe Department and asked it to provide un -redacted copies of the records that it had redacted or\n\nwithheld pursuant\n\nto sections 7( 1)(\n\ni)  or 7. 5( aa)  of FOIA,  or its Data License Agreement, \n\nfor our\n\nconfidential review, together with a detailed explanation of the factual and legal bases for the\nfor the Department\napplicability of those three rationales. 3 On October 30,  2017,  counsel\nresponded,  but did not address section 7. 5( aa)  of FOIA.  On October 31,  2017,  this office\n\nforwarded a copy of the Department' s response to\n\nOn November\n\n1,  2017, \n\nreplied,  arguing that the Department incorrectly applied the section 7. 5( aa)  and 70) 0) \n\nexemptions,  and that its improperly used its Data License Agreement\n\nin place of FOIA to impose\n\nResources,  to\n\nSeptember 20,  2017),  at 2. \n\n2Letter from Diana E.  Wise,  FOIA Officer,  Labor &  Employment Counsel,  Department of Natural\n\n3This office also asked the Department\n\nto explain how it assessed the fees charged.  However,  in\n\nan e- mail on December 21,  2017,  from\nBureau,  he clarified that he is no longer interested in contesting the fee. \n\nto an Assistant Attorney General ( AAG)  in the Public Access\n\n\fMr.  John Heidinger\n\nOctober 30,  2018\n\nPage 3\n\nconditions on access to the records.  This office attempted to informally resolve parts of this\nRequest for Review,  and also received a large volume of correspondence from\n\nthat\n\nmostly concerned matters outside the scope of this office' s review.  See 15 ILCS 205/ 7( c) ( West\n2016) ( limiting the Public Access Counselor' s authority to reviewing disputes concerning FOIA\nand the Open Meetings Act ( 15 ILCS 205/ 7( c) ( West 2016). \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department of Public Health,  218111.  2d 390,  415 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2. \n\nSection 7. 5( aa)  of FOIA\n\nSection 7. 5( aa)  of FOIA allows a public body to withhold \"[\nis exempted from disclosure under Section 2. 37 of the Wildlife Code.\"  Section 2. 37 of the\n\ni] nformation which\n\nWildlife Code exempts from disclosure under FOIA the locations of traps and snares authorized\n\nby the Department or another governmental body to kill wildlife responsible for property damage\nor causing a risk to human health or safety.  The Department did not address this exemption in its\nIn his reply,  the requester stated that he believes the Department misused\nresponse to this office. \nthe exemption. \n\nThe Department did not provide any explanation of how this provision would\n\napply to the records\nof demonstrating that any pertinent information is exempt from disclosure pursuant to section\n7. 5( aa)  of FOIA. \n\nrequested.  Accordingly,  the Department did not meet its burden\n\nSection 7( 1)(\n\ni) of FOIA\n\nSection 7( 1) 0)  of FOIA allows a public body to withhold \"[ v] aluable formulae, \n\ncomputer geographic systems,  designs,  drawings and research data obtained or produced by any\npublic body\"  in circumstances in which \" disclosure could reasonably be expected to produce\nprivate gain or public loss.\" \n\nIn its response to this office, the Department stated that it \" withholds the location\n\nof endangered or threatened species or wildlife in order to protect endangered and threatened\n\nspecies from poachers,  etc.,  so that endangered\n\nor threatened species are not captured,  killed,  or\n\n\fMr. John Heidinger\n\nOctober 30,  2018\n\nPage 4\n\notherwise removed from public lands for private gain. i4 The Department explained that it\n\nwithheld \" any data obtained or used by [ the Department] \nused to pinpoint the specific physical location\"  of such species,  such as cave names, maps,  GPS\n\nin conducting research that could be\n\ncoordinates,  or land descriptions.  The Department also noted that it redacted the name of a cave\n\nor mine only if the record made reference to an endangered species there.  On January 26,  2018, \nthe Department\nNatural Heritage Database,  which is discussed in greater detail below, would allow an individual\n\nfurther asserted that disclosure of information concerning a location in its\n\nto locate endangered species in the area and \" deduce [ the Department' s]  formula and find other\n\nareas that species could be found.  If someone really wanted to,  they could remove a species\nfrom Illinois using the data gathered from a database request of a specific area.\" 6\n\nIn his reply, \n\nargued that the Department is incorrectly applying this\n\nexemption \" to withhold natural heritage data\"  and that it cannot exercise a blanket exemption for\nsuch records \" due to concerns of 'public loss'  relating to poaching.\"\n\n7\n\nThe Department did not provide sufficient information from which this office\n\ncould determine whether there would be a likelihood of a private gain or public loss if the\n\nrecords at issue were released.  The Department' s sole argument about such a consequence is the\n\npossibility that releasing any information about the location of any endangered species could\nresult in poaching or other harms to endangered species.  That generalized and conclusory\nexplanation does not establish that disclosure of the specific records that\nis seeking\ncould reasonably be expected to produce private gain or public loss.\"  Further,  the Department\ndid not identify which exemption( s) ( out of the several originally cited)  it asserts apply to which\nof the thousands of pages of records provided to this office.  This precludes the Public Access\n\nBureau from accurately assessing what records were withheld and for what reason.  Accordingly, \nthe Department did not meet its burden of demonstrating that records are exempt from disclosure\npursuant\n\nto section 7( 1)(\n\ni)  of FOIA. \n\nPublic Access Bureau ( October 30,  2017),  at 6\n\nLetter\n\nfrom Diana E.  Wise,  Labor &  Employment Counsel, \n\nIDNR,  to Marie Hollister,  AAG, \n\nPublic Access Bureau ( October 30,  2017),  at 6. \n\n5Letter from Diana E.  Wise,  Labor &  Employment Counsel,  IDNR, to Marie Hollister, AAG, \n\n6E -mail from John Heidinger,  Legal Counsel,  IDNR, to [ Marie]  Hollister (January 26,  2018). \n\n7E -mail from\n\nto the Public Access Bureau ( November 1,  2017). \n\n\fMr.  John Heidinger\n\nOctober 30,  2018\n\nPage 5\n\nData License Agreement\n\nSection 3( b)  of FOIA ( 5 ILCS 140/ 3( 6) ( West 2016))  provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\n\npublic body shall promptly provide, to any person who submits a\nrequest,  a copy of any public record required to be disclosed by\nsubsection ( a)  of this Section and shall certify such copy if so\nrequested. ( Emphasis added.) \n\nWhen the language of a statute is clear and unambiguous,  it must be given effect as written. \n\nDeLuna v.  Burciaga,  223 I11.  2d 49,  59 ( 2006). \n\nThe language of section 3( b)  is clear and unambiguous:  it is the duty of a public\n\nbody to provide a requester who seeks copies of public records with copies of any responsive\nrecords that are not exempt from disclosure upon payment of any applicable fees.  Section 3( b) \ndoes not provide a public body with the option to decline to provide copies when copies are\nrequested.  Although a public body may offer a requester the opportunity to inspect and make\ncopies and the requester may elect to do so,  a public body is required to provide copies if\nissued March 29,  2010. \nrequested to do so.  See I11.  Att' y Gen.  Pub.  Acc.  Op.  No.  10- 001, \n\nIn its response to this office,  the Department stated that its \" Data License\n\nAgreement * * * \n\nallows persons to access\n\nthe Department' s]  research data,  including the names\n\nof caves that house endangered or threatened species,  while still protecting the location of\nendangered species.\" 8\nAAG)  from the Public Access Bureau, the Department confirmed that the Natural Heritage\n\nIn a January 23,  2018,  telephone call with an Assistant Attorney General\n\nDatabase was not searched for responsive records because the Department maintained that\n\nindividuals need to sign the data license agreement\n\nto view the records.  The Department\n\nconfirmed the requester' s claim that it prohibits individuals who sign the data license agreement\nfrom copying the records.  The agreement also states that it is revocable,  requires the licensee to\nacknowledge that the data is exempt under FOIA, and requires the licensee to take reasonable\nprecautions to keep the data confidential. \n\nPublic Access Bureau ( October 30,  2017),  at 6. \n\nLetter from Diana E.  Wise,  Labor &  Employment Counsel,  IDNR,  to Marie Hollister,  AAG, \n\n\fMr.  John Heidinger\n\nOctober 30,  2018\n\nPage 6\n\nIn his reply,  the requester argued that the Department cannot \" facilitate the use of\na data license agreement and an alternative means of records release that is to be used in place of\nFOIA.\" 9\n\nThe Department seems to have asserted that FOIA does not require it to provide\ncopies of, or even search for, responsive records in its Natural Heritage Database.  On January\n26,  2018,  the Department provided a sample \" unredacted snapshot\"  of the Natural Heritage\nDatabase. 10 This office' s review of the sample indicates that it is,  on its face,  a public record\nsubject to the requirements of FOIA as it is in the possession of the Department and\nunequivocally pertains to the transaction of public business.''  Section 3( b)  of FOIA clearly\nrequires public bodies to furnish copies of public records in response to a request for copies. \n\nThe Department,  however bypassed FOIA' s procedures and unilaterally\n\nestablished separate requirements for obtaining information from the Natural Heritage Database. \nSection 6. 01 of the Natural Areas Preservation Act ( 525 ILCS 30/ 6. 01 ( West 2016))  authorizes\n\nthe Department to: \n\ncompile and maintain inventories, registers and records of nature\n\npreserves,  other natural areas and features, and species of plants\n\nand animals and their habitats and establish a fee,  by rule,  to be\n\ncollected to recover the actual cost of collecting,  storing, \nmanaging,  compiling,  and providing access to such inventories, \nregisters,  and records.  All fees collected under this Section shall be\n\ndeposited into the Natural Areas Acquisition Fund.  The monies\n\ndeposited into the Natural Areas Acquisition Fund under this\nSection shall not be subject to administrative charges or\n\nchargebacks unless otherwise authorized by this Act. \n\nAlthough that statute authorizes the Department to \" compile and maintain\"  rather than withhold\n\nrecords,  the Department implemented an administrative rule that provides: \" Natural heritage data\n\nare exempt from disclosure as valuable formulae,  computer geographic systems,  designs, \n\n9E -mail from\n\nto the Public Access Bureau ( November 1,  2017). \n\n2018). \n\n19E - mail from John Heidinger,  Legal Counsel,  Illinois DNR,  to Marie Hollister ( January 26, \n\nSection 2( c)  of FOIA ( 5 ILCS 140/ 2( c) ( West 2016))  defines \" public records\"  as \" all records\n\nand other documentary materials pertaining to the transaction of public business,  regardless of physical form or\ncharacteristics,  having been prepared by or for, or having been or being used by,  received by,  in the possession of, or\n\nunder\n\nthe control of any public body.\" \n\n\fMr. John Heidinger\n\nOctober 30,  2018\n\nPage 7\n\ndrawings and research data obtained or produced by any public body when disclosure could\nreasonably be expected to produce private gain or public loss,  as allowed by Section 7[ 1](\ni)  of\nthe Freedom of Information Act.\"  17 III.  Adm.  Code § 4020. 230( c) ( 2018),  adopted at 38 Ill. \n\nReg.  2879,  effective January 10,  2014.  A related rule permits requesters to seek natural heritage\ndata by providing the Department with certain information,  including an \"[ e] xplanation of how\nthe data will be used and who will have access to the data[.]\" \n\n17 Ill.  Adm.  Code § 4020. 230( b)( 4) \n\n2018),  adopted at 38 Ill.  Reg.  2879,  effective January 10,  2014.  In addition,  the Department\nrequires: \n\nAll persons requesting and receiving natural heritage data\nfirst be required to sign a one- year Data\n\nvia written request shall\n\nLicensing Agreement\ndata.  Fees shall be paid in full before natural heritage data is\n\nthat dictates the conditions for use of the\n\nprovided unless alternate arrangements are made.  Licensing\nagreements may be renewed on a yearly basis.  Distribution of data\nto third parties,  including that from a consultant\nsubcontractor\n\nto contractor,  is prohibited.  17 Ill.  Adm.  Code\n\nto client or\n\n4020. 220( c) ( 2018),  adopted at 38 Ill.  Reg.  2879,  effective\n\nJanuary 10,  2014. \n\nThere will be a base fee for each request in addition to spatial data and report fees.  The base fee\nis $ 75 per request.\" \n\n17 Ill. Adm.  Code §  4020. 240( a) ( 2018),  adopted at 38 Ill.  Reg.  2879, \n\neffective January 10,  2014. \n\nThe $ 75 base fee and additional\n\nfees for spatial and report data are fixed by an\n\nadministrative rule— not a statute.  The plain language of section 6( c)  of FOIA ( 5 ILCS 140/ 6( c) \nWest 2016))  provides that the fee provisions of FOIA apply \"[ e] xcept when a fee is otherwise\nfixed by statute[.]\"  With respect to records maintained in electronic format, section 6( a)  of\nFOIA (5 ILCS 140/ 6( a) ( West 2016))  further provides: \n\nWhen a person requests a copy of a record maintained in an\nelectronic format, the public body shall furnish it in the electronic\nformat specified by the requester,  if feasible.  If it is not feasible to\nfurnish the public records in the specified electronic format, then\n\nthe public body shall furnish it in the format\nmaintained by the public body,  or in paper format at the option of\nthe requester.  A public body may charge the requester for the\nactual cost of purchasing the recording medium,  whether disc, \ndiskette,  tape,  or other medium.  If a request is not a request\n\nin which it is\n\nfor a\n\n\fMr. John Heidinger\n\nOctober 30,  2018\n\nPage 8\n\ncommercial purpose or a voluminous request,  a public body\nfor the costs of any search for\nmay not charge the requester\ncosts associated\nand review of the records or other personnel\n\nwith reproducing the records.  Except\nGeneral Assembly expressly provides, statutory fees applicable\nto copies of public records when furnished in a paper format\n\nto the extent that the\n\nshall not be applicable to those records when furnished in an\n\nelectronic\n\nformat.\" ( 5 ILCS 140/ 6( a) ( West 2016)). ( Emphasis\n\nadded.) \n\nBy its own terms.  the current version of section 6 of the FOIA does not allow a\n\nfee in excess of the cost of the electronic medium for the reproduction of electronic records\n\nunless another statute expressly provides that the fees for producing paper records also apply to\nelectronic copies.\"  Sage Information. Services v.  Humm,  2012 IL App ( 5th)  110580, ¶ 18,  977\nN. E. 2d 895,  900 ( 2012);  Sage Information Services v.  Suhr,  2014 IL App ( 2d)  130708, ¶¶ 17- 20, \n10 N.E.3d 241,  245- 46 ( 2014) ( copying fees for electronic copies are limited to the cost of the\nrecording medium unless a statute expressly authorizes a public body to charge additional\nfees\nfor electronic copies).  The Public Access Bureau has previously determined that copying fees\nestablished by administrative rules rather than statutes do not supersede the fees set out in section\n6 of FOIA.  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  17989,  issued February 5,  2014,  at 2) (\" If the\nGeneral Assembly had intended for fees fixed by both statutes and administrative rules to apply\nto records requested under FOIA,  it would have done so expressly as it did in crafting the section\n7( 1)( a)  exemption to apply to records that statutes,  as well as administrative rules implementing\nstatutes,  prohibit from being disclosed.\").  Because the Department has not identified a statute\nthat fixes the fees that the Department assessed\n\nthose fees are inapplicable to his\n\nrequest. \n\nFurther,  courts in other jurisdictions have found restrictions on the use of\n\npublic records similar to the Department' s data license agreement\n\nincompatible with their\n\nversions of FOIA.  In County of Santa Clara v.  Superior Court,  170 Cal.  App.  4th 1301,  1309, \n89 Cal.  Rptr.  3d 374,  379 ( Cal.  Ct.  App.  2009),  as modified ( Feb.  27,  2009),  the California Court\nof Appeals rejected a county' s assertion that it could require a requester to sign an end user\nagreement imposing restrictions on the use of a Geographic Information Systems ( GIS) \nbasemap.\"  The court emphasized that section 6257. 5 of the California Public Records Act\nCPRA) ( GOVT.  CODE §  6257. 5 ( West 2008)) \"' does not allow limitations on access to a public\nrecord based upon the purpose for which the record is being requested,  if the record is otherwise\nsubject to disclosure.\"'  Santa Clara,  170 Cal.  App. 4th at 1335,  89 Cal.  Rptr.  3d at 399.  The\ncourt concluded that the CPRA' s public policy of ensuring access to records maintained by\nagencies \" would be undercut by permitting the County to place extra - statutory\n\ngovernment\n\n\fMr.  John Heidinger\n\nOctober 30,  2018\n\nPage 9\n\nrestrictions on the records that it must produce.  through the use of end user agreements.\"  Santa\nClara,  170 Cal.  App.  4th at 1335,  89 Cal.  Rptr.  3d at 400;  see also Microdecisions, \nSkinner,  889 So. 2d 871,  875- 76 ( Fla.  Dist.  Ct. App.  2004) ( county property appraiser prohibited\nfrom requiring commercial requester to enter into licensing agreement to obtain GIS maps\nbecause a \" requester'\n\ns motive for a seeking a copy of documents is irrelevant[ ]\"  and because\n\nInc.,  v. \n\nthe fact that a person seeking access to public records wishes to use them in a commercial\nenterprise does not alter his or her rights under Florida' s public records law.\");  but see County of\nSuffolk, New York v.  First American Real Estate Solutions,  261 F. 3d 179,  192 ( 2d Dist. 2001) \n\nan agency' s choice to notify the recipient\n\nthat a portion of the record is protected by copyright\nlaw or an agency' s requirement that the recipient enter into a licensing agreement if it wishes to\ndistribute the record commercially does not restrict initial access but only what the recipient may\ndo once it acquires access.\"). \n\nIllinois FOIA provides that \" it is declared to be the public policy of the State of\n\nIllinois that all persons are entitled to full and complete information regarding the affairs of\ngovernment and the official acts and policies of those who represent\n\nthem as public officials and\n\npublic employees\n\nconsistent with the terms of this Act.\" ( Emphasis added.)  5 ILCS 140/ 1 ( West\n\n2016).  A requester' s purpose in seeking records is only relevant to obtaining access in limited\ncircumstances that do not apply to\nseeking records for a commercial purpose.  Even if he was,  having a commercial purpose would\nnot diminish his right to obtain the records,  though the Department would have additional\nrespond ( 5 ILCS 140/ 3.\nof FOIA ( 5 ILCS 140/ 6( f) (West 2016)). \n\ntime to\n1 ( West 2016))  and could potentially assess higher fees under section 6( f) \n\n12 There is no indication that\n\nis\n\non freedom of information,  except\n\nSection 1 of FOIA also provides: \" This Act shall be the exclusive State statute\nto the extent that other State statutes might create additional\n\nrestrictions on disclosure of information or other laws in Illinois might create additional\n\nobligations\n\nfor disclosure of information to the public.\" ( Emphasis added.)  Notably,  section\n\n7( 1)( a)  of FOIA ( 5 ILCS 140/ 7( 1)( a) ( West 2016),  as amended by Public Acts 100- 026,  effective\nAugust 4,  2017;  100- 201,  effective August 18,  2017)  exempts \"[ i] nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\"  FOIA does not, however,  authorize a public body to create administrative rules\nthat declare records exempt under other exemptions,  such as section 7( 1)(\nindividual' s access to records on entering into agreements that restrict their use for limited\npurposes.  Section 6. 01 of the Natural Areas Preservation Act authorizes the Department\ncompile and maintain natural heritage data— not prohibit or limit disclosure of that data. \n\ni),  or that condition an\n\nto\n\n12For example,  section 3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West 2016))  permits a public body to deny\n\na request as unduly burdensome after fulfilling certain procedural\nrequest and the burden on the public body outweighs the public interest\n\nrequirements if \"there is no way to narrow the\n\nin the information.\" \n\n\fMr.  John Heidinger\n\nOctober 30,  2018\n\nPage 10\n\nAlthough this office recognizes that the Department' s use of data license\n\nagreements may be intended to further the public interest\nserves to improperly restrict public access to copies of records that are subject to disclosure\nunder FOIA.  Because the Department has not demonstrated that the records are exempt from\ndisclosure under FOIA,  the Department has no basis for withholding them.  The Act does not\npermit a public body to unilaterally set up an alternative system separate from FOIA that\nimposes conditions on the use of public records and empowers a public body to refuse to provide\naccess unless a requester agrees to its terms. \n\nin protecting endangered species,  it\n\nAccordingly,  this office concludes that the Department improperly responded that\nit is not required to provide the requester with copies of public records from the Natural Heritage\nDatabase and that he may not inspect the records unless he signs a data license agreement.  In\naccordance with this determination,  this office asks the Department to provide\n\nwith\n\ncopies of the responsive records from the Natural Heritage Database,  subject to the payment of\nany fee properly imposed pursuant to FOIA and redactions pursuant to any exemptions that\napply to discrete portions of the records. 13\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  If you have any questions,  please contact me at\n312)  793- 0865 or the Chicago address listed on the bottom of the first page of this letter.  This\n\nletter serves to close this matter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n49942 f 3b improper 71i improper 75aa improper sa\n\nspecifically as stated in the January 26,  2018,  e- mail\ndatabase record,  section 7(\n\n1) 0) may still be applicable to portions of records in the database. \n\nBased on the explanation provided by the Department as to the contents of the database, \nfrom the Department\n\nto this office that contained the sample\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on gating Griffith Cave and Natural Heritage Database access","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-49942/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 30, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. John Heidinger\n\nFOIA Officer\n\nIllinois Department of Natural Resources\n\n[street address redacted for site publication -- see original PDF]\nJohn. Heidinger@illinois. gov\n\nRE: FOIA Request for Review — 2017 PAC 49942\n\nDear\n\nand Mr. Heidinger: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the Illinois Department of Natural Resources (Department) \n\nimproperly responded to\n\nSeptember 5, 2017, FOIA request. \n\nOn September 5, 2017, \n\nsubmitted an amended FOIA request' to the\n\nDepartment seeking copies of records concerning the gating of Griffith Cave, from January 1, \n2013, to December 31, 2014, that had not already been publically released. On that same date, \nto submit payment for estimated fees for copies of responsive\nthe Department asked\n\nrecords pursuant\n\nto section 6(a- 5) of FOIA (5 ILCS 140/ 6(a- 5) (West 2016)). On September 20, \n\n2017, the Department provided some responsive records to\n\nbut redacted certain\n\ninformation pursuant to sections 7(1)(b) and 7(1)(2016), as amended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August\n18, 2017). The Department also withheld other records in full pursuant to sections 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(6), (1)(c) (West\n\nf), \n\nfor Review with this office on August 28, 2017, contesting the\nDepartment's unduly burdensome categorization of his August 24, 2017, request, but he withdrew that Request for\nfor Review pertains to his amended request. \nReview on September\n\n11, 2017. See 2017 PAC 49430. This Request\n\nfiled a prior Request\n\n7(1)(m), and 7. 5(aa) of FOIA (5 ILCS 140/ 7(1)(f), (1)(m) (West 2016), as amended by Public\nActs 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017; 5 ILCS 140/ 7. 5(aa) \n\nWest 2016), as amended by Public Acts 100- 020, effective July 1, 2017; 100- 201, effective\nAugust 18, 2017; 100-464, effective August 28, 2017; 100- 465, effective August 31, 2017), as\n\nwell as section 2. 37 of the Wildlife Code (520 ILCS 5/ 2. 37 (West 2016)). Additionally, the\nDepartment stated that it was extending its time to respond pursuant\nILCS 140/ 3(e) (West 2016)) with regard to several non -e- mail records where it needed to\ncommunicate with the authors/ federal government, to determine if they are exempt. i2\n\nto section 3(e) of FOIA (5\n\nOn September 27, 2017, the Department sent an additional\n\nrecord to\n\nand denied other information pursuant\n2016), as amended by Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August\n18, 2017). The Department also stated that\nhad previously declined an opportunity to\nview certain withheld information that would require signing its Data License Agreement, stating\nthat this requirement was authorized through the Illinois Nature Preserves Commission and the\n\nto section 7(1) 0) of FOIA (5 ILCS 140/ 7(1)(i) (West\n\nIllinois Endangered Species Protection Board; the Department offered him the opportunity again. \nFurther, the Department indicated that it was still checking whether six additional records were\nexempt from disclosure. On October 4, 2017, the Department appears to have provided those\n\nrecords to\n\nOn that same date, this office received correspondence from\n\nindicating that he wished to file a Request\nthe Department's assertion\nthat he could not view certain responsive records without signing its Data License Agreement, \nand (2) the denial of records under sections 7(1) 0) and 7. 5(aa) of FOIA. On October 18, 2017, \n\nfor Review contesting (1) \n\nsubmitted the additional materials necessary to file a Request for Review of the\n\nDepartment's partial denial of his request on those grounds. \n\nfor Review to\nOn October 19, 2017, this office forwarded a copy of the Request\nthe Department and asked it to provide un -redacted copies of the records that it had redacted or\n\nwithheld pursuant\n\nto sections 7(1)(i) or 7. 5(aa) of FOIA, or its Data License Agreement, \n\nfor our\n\nconfidential review, together with a detailed explanation of the factual and legal bases for the\nfor the Department\napplicability of those three rationales. 3 On October 30, 2017, counsel\nresponded, but did not address section 7. 5(aa) of FOIA. On October 31, 2017, this office\n\nforwarded a copy of the Department's response to\n\nOn November\n\n1, 2017, \n\nreplied, arguing that the Department incorrectly applied the section 7. 5(aa) and 70) 0) \n\nexemptions, and that its improperly used its Data License Agreement\n\nin place of FOIA to impose\n\nResources, to\n\nSeptember 20, 2017), at 2. \n\n2 Letter from Diana E. Wise, FOIA Officer, Labor & Employment Counsel, Department of Natural\n\nconditions on access to the records. This office attempted to informally resolve parts of this\nRequest for Review, and also received a large volume of correspondence from\n\nthat\n\nmostly concerned matters outside the scope of this office's review. See 15 ILCS 205/ 7(c) (West\n2016) (limiting the Public Access Counselor's authority to reviewing disputes concerning FOIA\nand the Open Meetings Act (15 ILCS 205/ 7(c) (West 2016). \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" \n5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218111. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2. \n\nSection 7. 5(aa) of FOIA\n\nSection 7. 5(aa) of FOIA allows a public body to withhold \"[\nis exempted from disclosure under Section 2. 37 of the Wildlife Code.\" Section 2. 37 of the\n\ni] nformation which\n\nWildlife Code exempts from disclosure under FOIA the locations of traps and snares authorized\n\nby the Department or another governmental body to kill wildlife responsible for property damage\nor causing a risk to human health or safety. The Department did not address this exemption in its\nIn his reply, the requester stated that he believes the Department misused\nresponse to this office. \nthe exemption. \n\nThe Department did not provide any explanation of how this provision would\n\napply to the records\nof demonstrating that any pertinent information is exempt from disclosure pursuant to section\n7. 5(aa) of FOIA. \n\nrequested. Accordingly, the Department did not meet its burden\n\nSection 7(1)(i) of FOIA\n\nSection 7(1) 0) of FOIA allows a public body to withhold \"[ v] aluable formulae, \n\ncomputer geographic systems, designs, drawings and research data obtained or produced by any\npublic body\" in circumstances in which \" disclosure could reasonably be expected to produce\nprivate gain or public loss.\" \n\nIn its response to this office, the Department stated that it \" withholds the location\n\nof endangered or threatened species or wildlife in order to protect endangered and threatened\n\notherwise removed from public lands for private gain. i4 The Department explained that it\n\nwithheld \" any data obtained or used by [ the Department] \nused to pinpoint the specific physical location\" of such species, such as cave names, maps, GPS\n\nin conducting research that could be\n\ncoordinates, or land descriptions. The Department also noted that it redacted the name of a cave\n\nor mine only if the record made reference to an endangered species there. On January 26, 2018, \nthe Department\nNatural Heritage Database, which is discussed in greater detail below, would allow an individual\n\nfurther asserted that disclosure of information concerning a location in its\n\nto locate endangered species in the area and \" deduce [ the Department's] formula and find other\n\nareas that species could be found. If someone really wanted to, they could remove a species\nfrom Illinois using the data gathered from a database request of a specific area.\" 6\n\nIn his reply, \n\nargued that the Department is incorrectly applying this\n\nexemption \" to withhold natural heritage data\" and that it cannot exercise a blanket exemption for\nsuch records \" due to concerns of 'public loss' relating to poaching.\"\n\n7\n\nThe Department did not provide sufficient information from which this office\n\ncould determine whether there would be a likelihood of a private gain or public loss if the\n\nrecords at issue were released. The Department's sole argument about such a consequence is the\n\npossibility that releasing any information about the location of any endangered species could\nresult in poaching or other harms to endangered species. That generalized and conclusory\nexplanation does not establish that disclosure of the specific records that\nis seeking\ncould reasonably be expected to produce private gain or public loss.\" Further, the Department\ndid not identify which exemption(s) (out of the several originally cited) it asserts apply to which\nof the thousands of pages of records provided to this office. This precludes the Public Access\n\nBureau from accurately assessing what records were withheld and for what reason. Accordingly, \nthe Department did not meet its burden of demonstrating that records are exempt from disclosure\npursuant\n\nto section 7(1)(i) of FOIA. \n\nPublic Access Bureau (October 30, 2017), at 6\n\nLetter\n\nfrom Diana E. Wise, Labor & Employment Counsel, \n\nIDNR, to Marie Hollister, AAG, \n\nPublic Access Bureau (October 30, 2017), at 6. \n\n5 Letter from Diana E. Wise, Labor & Employment Counsel, IDNR, to Marie Hollister, AAG, \n\n6E -mail from John Heidinger, Legal Counsel, IDNR, to [ Marie] Hollister (January 26, 2018). \n\nData License Agreement\n\nSection 3(b) of FOIA (5 ILCS 140/ 3(6) (West 2016)) provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\n\npublic body shall promptly provide, to any person who submits a\nrequest, a copy of any public record required to be disclosed by\nsubsection (a) of this Section and shall certify such copy if so\nrequested. (Emphasis added.) \n\nWhen the language of a statute is clear and unambiguous, it must be given effect as written. \n\nDeLuna v. Burciaga, 223 I11. 2d 49, 59 (2006). \n\nThe language of section 3(b) is clear and unambiguous: it is the duty of a public\n\nbody to provide a requester who seeks copies of public records with copies of any responsive\nrecords that are not exempt from disclosure upon payment of any applicable fees. Section 3(b) \ndoes not provide a public body with the option to decline to provide copies when copies are\nrequested. Although a public body may offer a requester the opportunity to inspect and make\ncopies and the requester may elect to do so, a public body is required to provide copies if\nissued March 29, 2010. \nrequested to do so. See I11. Att' y Gen. Pub. Acc. Op. No. 10- 001, \n\nIn its response to this office, the Department stated that its \" Data License\n\nAgreement * * * \n\nallows persons to access\n\nthe Department's] research data, including the names\n\nof caves that house endangered or threatened species, while still protecting the location of\nendangered species.\" 8\nAAG) from the Public Access Bureau, the Department confirmed that the Natural Heritage\n\nIn a January 23, 2018, telephone call with an Assistant Attorney General\n\nDatabase was not searched for responsive records because the Department maintained that\n\nindividuals need to sign the data license agreement\n\nto view the records. The Department\n\nconfirmed the requester's claim that it prohibits individuals who sign the data license agreement\nfrom copying the records. The agreement also states that it is revocable, requires the licensee to\nacknowledge that the data is exempt under FOIA, and requires the licensee to take reasonable\n\nIn his reply, the requester argued that the Department cannot \" facilitate the use of\na data license agreement and an alternative means of records release that is to be used in place of\nFOIA.\" 9\n\nThe Department seems to have asserted that FOIA does not require it to provide\ncopies of, or even search for, responsive records in its Natural Heritage Database. On January\n26, 2018, the Department provided a sample \" unredacted snapshot\" of the Natural Heritage\nDatabase. 10 This office's review of the sample indicates that it is, on its face, a public record\nsubject to the requirements of FOIA as it is in the possession of the Department and\nunequivocally pertains to the transaction of public business.'' Section 3(b) of FOIA clearly\nrequires public bodies to furnish copies of public records in response to a request for copies. \n\nThe Department, however bypassed FOIA's procedures and unilaterally\n\nestablished separate requirements for obtaining information from the Natural Heritage Database. \nSection 6. 01 of the Natural Areas Preservation Act (525 ILCS 30/ 6. 01 (West 2016)) authorizes\n\nthe Department to: \n\ncompile and maintain inventories, registers and records of nature\n\npreserves, other natural areas and features, and species of plants\n\nand animals and their habitats and establish a fee, by rule, to be\n\ncollected to recover the actual cost of collecting, storing, \nmanaging, compiling, and providing access to such inventories, \nregisters, and records. All fees collected under this Section shall be\n\ndeposited into the Natural Areas Acquisition Fund. The monies\n\ndeposited into the Natural Areas Acquisition Fund under this\nSection shall not be subject to administrative charges or\n\nchargebacks unless otherwise authorized by this Act. \n\nAlthough that statute authorizes the Department to \" compile and maintain\" rather than withhold\n\nrecords, the Department implemented an administrative rule that provides: \" Natural heritage data\n\nare exempt from disclosure as valuable formulae, computer geographic systems, designs, \n\n9E -mail from\n\nto the Public Access Bureau (November 1, 2017). \n\n2018). \n\n19E - mail from John Heidinger, Legal Counsel, Illinois DNR, to Marie Hollister (January 26, \n\nSection 2(c) of FOIA (5 ILCS 140/ 2(c) (West 2016)) defines \" public records\" as \" all records\n\nand other documentary materials pertaining to the transaction of public business, regardless of physical form or\ncharacteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or\n\ndrawings and research data obtained or produced by any public body when disclosure could\nreasonably be expected to produce private gain or public loss, as allowed by Section 7[ 1](i) of\nthe Freedom of Information Act.\" 17 III. Adm. Code § 4020. 230(c) (2018), adopted at 38 Ill. \n\nReg. 2879, effective January 10, 2014. A related rule permits requesters to seek natural heritage\ndata by providing the Department with certain information, including an \"[ e] xplanation of how\nthe data will be used and who will have access to the data[.]\" \n\n17 Ill. Adm. Code § 4020. 230(b)(4) \n\n2018), adopted at 38 Ill. Reg. 2879, effective January 10, 2014. In addition, the Department\nrequires: \n\nAll persons requesting and receiving natural heritage data\nfirst be required to sign a one- year Data\n\nvia written request shall\n\nLicensing Agreement\ndata. Fees shall be paid in full before natural heritage data is\n\nthat dictates the conditions for use of the\n\nprovided unless alternate arrangements are made. Licensing\nagreements may be renewed on a yearly basis. Distribution of data\nto third parties, including that from a consultant\nsubcontractor\n\nto contractor, is prohibited. 17 Ill. Adm. Code\n\nto client or\n\n4020. 220(c) (2018), adopted at 38 Ill. Reg. 2879, effective\n\nJanuary 10, 2014. \n\nThere will be a base fee for each request in addition to spatial data and report fees. The base fee\nis $ 75 per request.\" \n\n17 Ill. Adm. Code § 4020. 240(a) (2018), adopted at 38 Ill. Reg. 2879, \n\neffective January 10, 2014. \n\nThe $ 75 base fee and additional\n\nfees for spatial and report data are fixed by an\n\nadministrative rule— not a statute. The plain language of section 6(c) of FOIA (5 ILCS 140/ 6(c) \nWest 2016)) provides that the fee provisions of FOIA apply \"[ e] xcept when a fee is otherwise\nfixed by statute[.]\" With respect to records maintained in electronic format, section 6(a) of\nFOIA (5 ILCS 140/ 6(a) (West 2016)) further provides: \n\nWhen a person requests a copy of a record maintained in an\nelectronic format, the public body shall furnish it in the electronic\nformat specified by the requester, if feasible. If it is not feasible to\nfurnish the public records in the specified electronic format, then\n\nthe public body shall furnish it in the format\nmaintained by the public body, or in paper format at the option of\n\ncommercial purpose or a voluminous request, a public body\nfor the costs of any search for\nmay not charge the requester\ncosts associated\nand review of the records or other personnel\n\nwith reproducing the records. Except\nGeneral Assembly expressly provides, statutory fees applicable\nto copies of public records when furnished in a paper format\n\nto the extent that the\n\nshall not be applicable to those records when furnished in an\n\nelectronic\n\nformat.\" (5 ILCS 140/ 6(a) (West 2016)). (Emphasis\n\nadded.) \n\nBy its own terms. the current version of section 6 of the FOIA does not allow a\n\nfee in excess of the cost of the electronic medium for the reproduction of electronic records\n\nunless another statute expressly provides that the fees for producing paper records also apply to\nelectronic copies.\" Sage Information. Services v. Humm, 2012 IL App (5th) 110580, ¶ 18, 977\nN. E. 2d 895, 900 (2012); Sage Information Services v. Suhr, 2014 IL App (2d) 130708, ¶¶ 17- 20, \n10 N.E.3d 241, 245- 46 (2014) (copying fees for electronic copies are limited to the cost of the\nrecording medium unless a statute expressly authorizes a public body to charge additional\nfees\nfor electronic copies). The Public Access Bureau has previously determined that copying fees\nestablished by administrative rules rather than statutes do not supersede the fees set out in section\n6 of FOIA. Ill. Att' y Gen. PAC Req. Rev. Ltr. 17989, issued February 5, 2014, at 2) (\" If the\nGeneral Assembly had intended for fees fixed by both statutes and administrative rules to apply\nto records requested under FOIA, it would have done so expressly as it did in crafting the section\n7(1)(a) exemption to apply to records that statutes, as well as administrative rules implementing\nstatutes, prohibit from being disclosed.\"). Because the Department has not identified a statute\nthat fixes the fees that the Department assessed\n\nthose fees are inapplicable to his\n\nrequest. \n\nFurther, courts in other jurisdictions have found restrictions on the use of\n\npublic records similar to the Department's data license agreement\n\nincompatible with their\n\nversions of FOIA. In County of Santa Clara v. Superior Court, 170 Cal. App. 4th 1301, 1309, \n89 Cal. Rptr. 3d 374, 379 (Cal. Ct. App. 2009), as modified (Feb. 27, 2009), the California Court\nof Appeals rejected a county's assertion that it could require a requester to sign an end user\nagreement imposing restrictions on the use of a Geographic Information Systems (GIS) \nbasemap.\" The court emphasized that section 6257. 5 of the California Public Records Act\nCPRA) (GOVT. CODE § 6257. 5 (West 2008)) \"' does not allow limitations on access to a public\nrecord based upon the purpose for which the record is being requested, if the record is otherwise\nsubject to disclosure.\"' Santa Clara, 170 Cal. App. 4th at 1335, 89 Cal. Rptr. 3d at 399. The\n\nrestrictions on the records that it must produce. through the use of end user agreements.\" Santa\nClara, 170 Cal. App. 4th at 1335, 89 Cal. Rptr. 3d at 400; see also Microdecisions, \nSkinner, 889 So. 2d 871, 875- 76 (Fla. Dist. Ct. App. 2004) (county property appraiser prohibited\nfrom requiring commercial requester to enter into licensing agreement to obtain GIS maps\nbecause a \" requester's motive for a seeking a copy of documents is irrelevant[ ]\" and because\n\nInc., v. \n\nthe fact that a person seeking access to public records wishes to use them in a commercial\nenterprise does not alter his or her rights under Florida's public records law.\"); but see County of\nSuffolk, New York v. First American Real Estate Solutions, 261 F. 3d 179, 192 (2d Dist. 2001) \n\nan agency's choice to notify the recipient\n\nthat a portion of the record is protected by copyright\nlaw or an agency's requirement that the recipient enter into a licensing agreement if it wishes to\ndistribute the record commercially does not restrict initial access but only what the recipient may\ndo once it acquires access.\"). \n\nIllinois FOIA provides that \" it is declared to be the public policy of the State of\n\nIllinois that all persons are entitled to full and complete information regarding the affairs of\ngovernment and the official acts and policies of those who represent\n\nthem as public officials and\n\npublic employees\n\nconsistent with the terms of this Act.\" (Emphasis added.) 5 ILCS 140/ 1 (West\n\n2016). A requester's purpose in seeking records is only relevant to obtaining access in limited\ncircumstances that do not apply to\nseeking records for a commercial purpose. Even if he was, having a commercial purpose would\nnot diminish his right to obtain the records, though the Department would have additional\nrespond (5 ILCS 140/ 3.\nof FOIA (5 ILCS 140/ 6(f) (West 2016)). \n\ntime to\n1 (West 2016)) and could potentially assess higher fees under section 6(f) \n\n12 There is no indication that\n\nis\n\non freedom of information, except\n\nSection 1 of FOIA also provides: \" This Act shall be the exclusive State statute\nto the extent that other State statutes might create additional\n\nrestrictions on disclosure of information or other laws in Illinois might create additional\n\nobligations\n\nfor disclosure of information to the public.\" (Emphasis added.) Notably, section\n\n7(1)(a) of FOIA (5 ILCS 140/ 7(1)(a) (West 2016), as amended by Public Acts 100- 026, effective\nAugust 4, 2017; 100- 201, effective August 18, 2017) exempts \"[ i] nformation specifically\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" FOIA does not, however, authorize a public body to create administrative rules\nthat declare records exempt under other exemptions, such as section 7(1)(individual's access to records on entering into agreements that restrict their use for limited\npurposes. Section 6. 01 of the Natural Areas Preservation Act authorizes the Department\ncompile and maintain natural heritage data— not prohibit or limit disclosure of that data. \n\ni), or that condition an\n\nto\n\n12 For example, section 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2016)) permits a public body to deny\n\nAlthough this office recognizes that the Department's use of data license\n\nagreements may be intended to further the public interest\nserves to improperly restrict public access to copies of records that are subject to disclosure\nunder FOIA. Because the Department has not demonstrated that the records are exempt from\ndisclosure under FOIA, the Department has no basis for withholding them. The Act does not\npermit a public body to unilaterally set up an alternative system separate from FOIA that\nimposes conditions on the use of public records and empowers a public body to refuse to provide\naccess unless a requester agrees to its terms. \n\nin protecting endangered species, it\n\nAccordingly, this office concludes that the Department improperly responded that\nit is not required to provide the requester with copies of public records from the Natural Heritage\nDatabase and that he may not inspect the records unless he signs a data license agreement. In\naccordance with this determination, this office asks the Department to provide\n\nwith\n\ncopies of the responsive records from the Natural Heritage Database, subject to the payment of\nany fee properly imposed pursuant to FOIA and redactions pursuant to any exemptions that\napply to discrete portions of the records. 13\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 793- 0865 or the Chicago address listed on the bottom of the first page of this letter. This\n\nletter serves to close this matter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n49942 f 3b improper 71i improper 75aa improper sa\n\nspecifically as stated in the January 26, 2018, e- mail\ndatabase record, section 7(1) 0) may still be applicable to portions of records in the database. \n\nBased on the explanation provided by the Department as to the contents of the database, \nfrom the Department\n\nto this office that contained the sample"}
{"id":898,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-02-15","case_number":null,"request_numbers":["50347"],"title":"University of Illinois did not violate FOIA by withholding professor's personal emails on public email account","filename":"50347, issued February 15, 2018.pdf","rel_path":null,"word_count":1834,"summary":"The PAC determined that the University of Illinois did not violate FOIA by denying a request for a professor's emails because the emails were personal in nature and did not constitute 'public records' under the Act.","plain_summary":"The question was whether emails sent to and from a University of Illinois professor's university email account, concerning his outside consulting work for a cryptocurrency venture, were \"public records\" subject to FOIA under 5 ILCS 140/2(c). The Public Access Bureau concluded the University did not improperly deny the request because the emails were not public records at all -- they related to the professor's personal consulting activities, not the transaction of public business. The reasoning applied is that a communication must first pertain to public business, as opposed to private affairs, before the further analysis of whether it was prepared, used, received, or controlled by a public body is even reached; use of a university email address alone does not convert personal communications into public records. Because the withheld emails concerned the professor's private outside consulting relationship rather than University business, they fell outside FOIA's scope.","holding":"A communication is not a public record under 5 ILCS 140/2(c) unless it first pertains to public business as opposed to an employee's private affairs, and use of a public body's email system to send or receive personal communications does not by itself convert them into public records subject to FOIA.","legal_question":"Whether emails sent or received by a university professor on a university-provided account regarding personal matters constitute 'public records' subject to disclosure under FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois","requesting_party":"Mr. Steve Stecklow (Reuters)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought emails from a university professor's account that the university claimed were personal and unrelated to official business.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/50347%2C%20issued%20February%2015%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public records","university email","personal emails","FOIA definition"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 15,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr.  Steve Stecklow\n\nSenior Correspondent\n\nReuters\n\n1 Royal Court\n\nLondon,  SEI6 7TA\n\nUnited Kingdom\n\nsteve. stecklow@thomsonreuters. com\n\nVia electronic mail\n\nThomas P.  Hardy\nExecutive Director and Chief Records Officer\n\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street,  MC -370\n\n[street address redacted for site publication -- see original PDF]\nfoia@uillinois. edu\n\nRE:  FOIA Request for Review — 2017 PAC 50347\n\nDear Mr. Stecklow and Mr. Hardy: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons discussed below,  this\n\noffice concludes that University of Illinois ( University)  did not improperly deny Mr. Steve\nStecklow' s October 23,  2017,  FOIA request because the e- mails in question were not public\n\nrecords subject\n\nto the requirements of FOIA. \n\nBACKGROUND\n\nOn October 23,  2017,  Mr.  Stecklow,  on behalf of Reuters,  submitted a FOIA\n\nto the University seeking copies of all e- mails sent to or from a particular university\n\nrequest\ne- mail address during the period from October 18,  2017,  through the date that the University\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Steve Stecklow\n\nMr.  Thomas P.  Hardy\nFebruary 15,  2018\nPage 2\n\nprocessed the FOIA request,  containing the words \" Tezos or Reuters.\"'  On November 3,  2017, \nthe University responded by stating that it had identified nine pages of responsive e- mails.  The\nUniversity,  however,  contended that the e- mails were not subject to the requirements of FOIA\nbecause they did not pertain to the transaction of public business,  and therefore,  did not fall\nwithin the definition of a \" public record\"  as defined in section 2( c)  of FOIA ( 5 ILCS 140/ 2( c) \nWest 2016)).  Mr.  Stecklow' s Request for Review disputes the University' s response. \nSpecifically,  Mr. Stecklow asserts that \"[ tjhis is a case of a university professor who I believe\nmay be consulting privately to a highly controversial cryptocurrency venture called Tezos using\nuniversity resources — including its email system.\" 2\n\nOn November 8,  2017,  this office sent a copy of the Request for Review to the\nUniversity and asked it to provide copies of the responsive e- mails for this office' s confidential\nreview, together with a detailed explanation of the factual and legal bases for the University's\nassertion that the e- mails in question are not public records subject to the requirements of FOIA. \nOn November 22,  2017,  the University provided those materials.  Later that day,  this office\nforwarded the University' s response to Mr.  Stecklow;  he replied on November 29,  2017. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\n5 ILCS\nit is exempt.\" \n140/ 1. 2 ( West 2016).  Section 3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2016))  provides that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \nexcept as otherwise provided in Section 7 of this Act.\"  FOIA defines \"[ Nubile records\"  as: \n\nall records,  reports,  forms,  writings,  letters,  memoranda,  books, \n\npapers,  maps,  photographs,  microfilms,  cards,  tapes,  recordings, \n\nelectronic data processing records,  electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business,  regardless of\nform or characteristics,  having been prepared by or for,  or\nphysical\nhaving been or being used by,  received by,  in the possession of, or\nunder the control of any public body. ( Emphasis added.) \n\nThe Public Access Bureau has previously determined that records related to a\n\ntrustee' s personal conversations on the trustee' s personal cell phone that took place during a\npublic meeting were not public records.  This office noted that the fact that the personal\nconversations took place at a public meeting did not mean that those conversations pertained to\n\nE- mail from Steve Stecklow,  Senior Correspondent,  Reuters,  to foia@uillinois. edu ( October 22, \n\n2017). \n\n2E - mail\n\nfrom Steve Stecklow,  Reuters,  London,  to Public Access Counselor ( November 3,  2017). \n\n\fMr.  Steve Stecklow\n\nMr. Thomas P.  Hardy\nFebruary 15,  2018\nPage 3\n\nthe transaction of public business.  See III.  Att' y Gen.  PAC Req.  Rev.  Ltr.  35374,  issued June 30, \n2015,  at 3;  see also III.  Att' y Gen.  Pub.  Acc.  Op.  No.  11- 006,  issued November 15,  2011,  at 7\n\no] nly those communications on private equipment\n\nthat pertain to public business are subject to\ndisclosure under the requirements of FOIA[.]\");  accord City of Champaign v. Madigan,  2013 IL\nApp. ( 4th)  120662, ¶ 31,  992 N. E. 2d 629,  637 ( 2013) (\"\ncommunication must first pertain to business or community interests as opposed to private\naffairs\") ( intemal quotation omitted). \n\nto qualify as a public record a\n\nIn Madigan,  the Illinois Appellate Court noted that FOIA does not define the term\n\npublic business.\"  2013 IL App ( 4th)  120662, ¶  31,  992 N. E. 2d at 636.  Turning then to the\ndictionary' s definition of \" public,\"  the court stated \" to qualify as a public record a\ncommunication must first pertain to business or community interests as opposed to private\naffairs.  Indeed,  FOIA is not concerned with an individual' s private affairs.\"  Madigan,  2013 IL\nApp (4th)  120662, ¶  31,  992 N. E. 2d at 637 ( internal quotation omitted).  Therefore,  the threshold\ndetermination of whether a communication is a \" public record\"  for the purposes of FOIA is\nwhether that communication pertains to \" public business.\"  Only if this threshold is met does the\nanalysis proceed to whether the communication was \"( 2)  prepared by, ( 3)  prepared for, ( 4)  used\nby ( 5)  received by, ( 6)  possessed by, or (7)  controlled by a public body.\"  City of Champaign v. \nMadigan,  2013 IL App ( 4th)  120662, ¶  42,  992 N. E. 2d 629,  639- 40 ( 2013). \n\nIn his reply to this office,  Mr. Stecklow contends that the communications are\n\nrelated to the transaction of public business.  Specifically,  Mr.  Stecklow asserted that the\nprofessor' s activities as a consultant to Tezos is interconnected with his duties as a public\nemployee because the professor used the University' s e- mail system and because Tezos used the\nprofessor' s affiliation with the University in its marketing materials,  which Mr.  Stecklow states\nhelped Tezos \" raise millions of dollars. i3\n\nThe University' s response to this office acknowledged that the e- mails in question\n\nwere created using public resources— the professor' s University e- mail address — and are in the\npossession of the University.  However, citing a Michigan Appellate Court case,  Howell\nEducation Association MEA/ NEA v.  Howell Board of Education,  287 Mich.  App.  228,  789 N. W. \n2d 495 ( 2010),  the University contended that the e- mails do not fall within the above definition\nof \" public records\"  because the e- mails are related to the professor' s private outside consulting\nwork,  rather than the transaction of any University business.  Specifically,  the University\n\nasserted: \n\nIn this situation,  Professor [ name]  is a technical advisor\n\nfor Tezos and provides consulting on cryptography and\ncryptocurrency design and implementation.  Professor [ name] \n\nGeneral], [ Public Access Bureau] ( November 29,  2017). \n\nE- mail from Steve Stecklow, Reuters, London,  to Shannon Bamaby, [ Assistant Attorney\n\n\fMr.  Steve Stecklow\n\nMr. Thomas P.  Hardy\nFebruary 15,  2018\nPage 4\n\ndiscloses this outside consulting work on his faculty website and\non his economic disclosure form. [ Footnote.]  Professor [ name]  also\n\nuses a private email for outside consulting activities. \nNotwithstanding,  between October 17 and October 19,  Professor\nname]  received a series of unsolicited emails to his account and\n\nparticipated in a brief email exchange.  This exchange does not\nconstitute the definition of a public record under FOIA simply\nbecause Professor [ name]  responded. 141\n\nIn Howell,  the Michigan Appellate Court determined that e- mails sent by public - \n\nteachers using their school district e- mail addresses to communicate about union matters\n\nschool\nwere not public records subject to disclosure under Michigan' s FOIA because they did not relate\nfunctions.  Howell,  287 Mich.  App.  at\nto the furtherance of the teachers'  performance of official\n246.  The Court stated: \n\ninvolve teachers acting in their\n\nSuch communications do not\nofficial capacity as public employees,  but in their personal capacity\nas HEA members or leadership.  Thus,  any e- mail sent\ncapacity is personal.  This holding is consistent with the underlying\npolicy of FOIA,  which is to inform the public \" regarding the\naffairs of government and the official acts of ...  public\n\nin that\n\nemployees.\" [ citation omitted].  The release of e- mail\ninternal union communications would only reveal\nregarding the affairs of a labor organization,  which is not a public\nbody.  Howell, 287 Mich.  App.  at 244. \n\ninformation\n\ninvolving\n\nThis office has reviewed the withheld communications\n\nand can confirm that\n\nthe\n\nrequested records appear to relate to the professor' s outside consulting work, which is neither\nrelated to his performance of an official function in his capacity as an employee of the University\nnor to the transaction of any University business.  The fact that the professor,  in his personal\ncapacity, acts as a consultant to a particular startup company and the fact that the startup\ncompany uses the professor's affiliation with the University as marketing tool,  does not convert\nhis personal endeavors into the business of the University.  Likewise, the fact that the personal e- \nmails were received and created on the professor' s university e- mail address does not transform\nthem into public records.  Accordingly,  we conclude that the requested records are not \" public\nrecords\"  as defined by section 2( c)  of FOIA,  and that the University did not improperly respond\nto Mr.  Stecklow' s request. \n\nLetter from Thomas P.  Hardy,  Executive Director and Chief Records Officer,  University of\n\nIllinois, to Shannon Barnaby, Assistant Attorney General,  Office of the Illinois Attorney General ( November 20, \n2017). \n\n\fMr.  Steve Stecklow\n\nMr. Thomas P.  Hardy\nFebruary 15,  2018\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  If you have any questions,  you may contact me by\nmail at the Chicago address listed on the first page of this letter or by e- mail at\nsbarnaby@atg. state. il. us.  Thank you. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n50347 f not a public record univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails from a professor's university account","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-50347/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 15, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. Steve Stecklow\n\nSenior Correspondent\n\nReuters\n\n1 Royal Court\n\nLondon, SEI6 7TA\n\nUnited Kingdom\n\nsteve. stecklow@thomsonreuters. com\n\nVia electronic mail\n\nThomas P. Hardy\nExecutive Director and Chief Records Officer\n\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC -370\n\n[street address redacted for site publication -- see original PDF]\nfoia@uillinois. edu\n\nRE: FOIA Request for Review — 2017 PAC 50347\n\nDear Mr. Stecklow and Mr. Hardy: \n\nThis determination letter is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons discussed below, this\n\noffice concludes that University of Illinois (University) did not improperly deny Mr. Steve\nStecklow's October 23, 2017, FOIA request because the e- mails in question were not public\n\nrecords subject\n\nto the requirements of FOIA. \n\nBACKGROUND\n\nOn October 23, 2017, Mr. Stecklow, on behalf of Reuters, submitted a FOIA\n\nto the University seeking copies of all e- mails sent to or from a particular university\n\nrequest\ne- mail address during the period from October 18, 2017, through the date that the University\n\nprocessed the FOIA request, containing the words \" Tezos or Reuters.\"' On November 3, 2017, \nthe University responded by stating that it had identified nine pages of responsive e- mails. The\nUniversity, however, contended that the e- mails were not subject to the requirements of FOIA\nbecause they did not pertain to the transaction of public business, and therefore, did not fall\nwithin the definition of a \" public record\" as defined in section 2(c) of FOIA (5 ILCS 140/ 2(c) \nWest 2016)). Mr. Stecklow's Request for Review disputes the University's response. \nSpecifically, Mr. Stecklow asserts that \"[ tjhis is a case of a university professor who I believe\nmay be consulting privately to a highly controversial cryptocurrency venture called Tezos using\nuniversity resources — including its email system.\" 2\n\nOn November 8, 2017, this office sent a copy of the Request for Review to the\nUniversity and asked it to provide copies of the responsive e- mails for this office's confidential\nreview, together with a detailed explanation of the factual and legal bases for the University's\nassertion that the e- mails in question are not public records subject to the requirements of FOIA. \nOn November 22, 2017, the University provided those materials. Later that day, this office\nforwarded the University's response to Mr. Stecklow; he replied on November 29, 2017. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\n5 ILCS\nit is exempt.\" \n140/ 1. 2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2016)) provides that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \nexcept as otherwise provided in Section 7 of this Act.\" FOIA defines \"[ Nubile records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction ofpublic business, regardless of\nform or characteristics, having been prepared by or for, or\nphysical\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. (Emphasis added.) \n\nThe Public Access Bureau has previously determined that records related to a\n\ntrustee's personal conversations on the trustee's personal cell phone that took place during a\npublic meeting were not public records. This office noted that the fact that the personal\nconversations took place at a public meeting did not mean that those conversations pertained to\n\nE- mail from Steve Stecklow, Senior Correspondent, Reuters, to foia@uillinois. edu (October 22, \n\nthe transaction of public business. See III. Att' y Gen. PAC Req. Rev. Ltr. 35374, issued June 30, \n2015, at 3; see also III. Att' y Gen. Pub. Acc. Op. No. 11- 006, issued November 15, 2011, at 7\n\no] nly those communications on private equipment\n\nthat pertain to public business are subject to\ndisclosure under the requirements of FOIA[.]\"); accord City of Champaign v. Madigan, 2013 IL\nApp. (4th) 120662, ¶ 31, 992 N. E. 2d 629, 637 (2013) (\"\ncommunication must first pertain to business or community interests as opposed to private\naffairs\") (intemal quotation omitted). \n\nto qualify as a public record a\n\nIn Madigan, the Illinois Appellate Court noted that FOIA does not define the term\n\npublic business.\" 2013 IL App (4th) 120662, ¶ 31, 992 N. E. 2d at 636. Turning then to the\ndictionary's definition of \" public,\" the court stated \" to qualify as a public record a\ncommunication must first pertain to business or community interests as opposed to private\naffairs. Indeed, FOIA is not concerned with an individual's private affairs.\" Madigan, 2013 IL\nApp (4th) 120662, ¶ 31, 992 N. E. 2d at 637 (internal quotation omitted). Therefore, the threshold\ndetermination of whether a communication is a \" public record\" for the purposes of FOIA is\nwhether that communication pertains to \" public business.\" Only if this threshold is met does the\nanalysis proceed to whether the communication was \"(2) prepared by, (3) prepared for, (4) used\nby (5) received by, (6) possessed by, or (7) controlled by a public body.\" City of Champaign v. \nMadigan, 2013 IL App (4th) 120662, ¶ 42, 992 N. E. 2d 629, 639- 40 (2013). \n\nIn his reply to this office, Mr. Stecklow contends that the communications are\n\nrelated to the transaction of public business. Specifically, Mr. Stecklow asserted that the\nprofessor's activities as a consultant to Tezos is interconnected with his duties as a public\nemployee because the professor used the University's e- mail system and because Tezos used the\nprofessor's affiliation with the University in its marketing materials, which Mr. Stecklow states\nhelped Tezos \" raise millions of dollars. i3\n\nThe University's response to this office acknowledged that the e- mails in question\n\nwere created using public resources— the professor's University e- mail address — and are in the\npossession of the University. However, citing a Michigan Appellate Court case, Howell\nEducation Association MEA/ NEA v. Howell Board of Education, 287 Mich. App. 228, 789 N. W. \n2d 495 (2010), the University contended that the e- mails do not fall within the above definition\nof \" public records\" because the e- mails are related to the professor's private outside consulting\nwork, rather than the transaction of any University business. Specifically, the University\n\nasserted: \n\nIn this situation, Professor [ name] is a technical advisor\n\ndiscloses this outside consulting work on his faculty website and\non his economic disclosure form. [ Footnote.] Professor [ name] also\n\nuses a private email for outside consulting activities. \nNotwithstanding, between October 17 and October 19, Professor\nname] received a series of unsolicited emails to his account and\n\nparticipated in a brief email exchange. This exchange does not\nconstitute the definition of a public record under FOIA simply\nbecause Professor [ name] responded. 141\n\nIn Howell, the Michigan Appellate Court determined that e- mails sent by public - \n\nteachers using their school district e- mail addresses to communicate about union matters\n\nschool\nwere not public records subject to disclosure under Michigan's FOIA because they did not relate\nfunctions. Howell, 287 Mich. App. at\nto the furtherance of the teachers' performance of official\n246. The Court stated: \n\ninvolve teachers acting in their\n\nSuch communications do not\nofficial capacity as public employees, but in their personal capacity\nas HEA members or leadership. Thus, any e- mail sent\ncapacity is personal. This holding is consistent with the underlying\npolicy of FOIA, which is to inform the public \" regarding the\naffairs of government and the official acts of... public\n\nin that\n\nemployees.\" [ citation omitted]. The release of e- mail\ninternal union communications would only reveal\nregarding the affairs of a labor organization, which is not a public\nbody. Howell, 287 Mich. App. at 244. \n\ninformation\n\ninvolving\n\nThis office has reviewed the withheld communications\n\nand can confirm that\n\nthe\n\nrequested records appear to relate to the professor's outside consulting work, which is neither\nrelated to his performance of an official function in his capacity as an employee of the University\nnor to the transaction of any University business. The fact that the professor, in his personal\ncapacity, acts as a consultant to a particular startup company and the fact that the startup\ncompany uses the professor's affiliation with the University as marketing tool, does not convert\nhis personal endeavors into the business of the University. Likewise, the fact that the personal e- \nmails were received and created on the professor's university e- mail address does not transform\nthem into public records. Accordingly, we conclude that the requested records are not \" public\nrecords\" as defined by section 2(c) of FOIA, and that the University did not improperly respond\nto Mr. Stecklow's request. \n\nLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, University of\n\nIllinois, to Shannon Barnaby, Assistant Attorney General, Office of the Illinois Attorney General (November 20, \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter or by e- mail at\nsbarnaby@atg. state. il. us. Thank you. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n50347 f not a public record univ"}
{"id":899,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2017-11-17","case_number":null,"request_numbers":["50407"],"title":"Algonquin Township not required to respond to FOIA request sent to personal email","filename":"50407, issued November 17, 2017.pdf","rel_path":null,"word_count":619,"summary":"The requester submitted a FOIA request to a Township Clerk's personal email address rather than an official public body address, and the PAC determined that because the request was not properly directed to the public body, no further action was required.","plain_summary":"A citizen sent a public records request to a Township Clerk's personal email address instead of using the official Township email. The Attorney General's office ruled that because the request wasn't sent to the public body through an official channel, the Township was not legally required to respond. This means FOIA requests must be directed to the public body's official contact methods to be valid.","holding":"The PAC determined that a FOIA request sent to a public official's personal email address, rather than an official public body channel, does not constitute a valid request under FOIA.","legal_question":"Whether a FOIA request sent to a public official's personal email address constitutes a request 'directed to the public body' under 5 ILCS 140/3(c).","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Algonquin Township","requesting_party":null,"pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"FOIA procedure","subject_description":"The requester attempted to submit a FOIA request via the personal email address of the Algonquin Township Clerk.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_c/50407%2C%20issued%20November%2017%2C%202017.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA request","proper submission","public body","email address"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 17,  2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request for Review — 2017 PAC 50407\n\nDear Mr. \n\nThis determination is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons that follow, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn October 31,  2017, you submitted a FOIA request to the personal e- mail\n\naddress of Ms.  Karen Lukasik seeking all e- mails that she exchanged with another individual\nbetween October 25,  2017,  and October 31,  2017.  Ms.  Lukasik is the Algonquin Township\nTownship)  Clerk.  On November 9,  2017,  you submitted a Request\nAccess Bureau alleging that the Township did not respond to your FOIA request and copied the\nTownship Clerk on your Request for Review.  On the same day you submitted your Request for\nReview,  the Township Clerk responded to you and to this office by stating that she had not\nreceived the request via her Township e- mail address,  and asking you to re -submit the request to\nher Township e- mail address. \n\nfor Review to the Public\n\nSection 3( c)  of FOIA ( 5 ILCS 140/ 3( c) ( West 2016))  expressly requires that\n\nrequests be \" directed to the public body.\"  A requester may submit a FOIA request to a public\nbody by personal delivery,  mail,  e- mail,  fax, \" or other means available to the public body.\"  5\nILCS 140/ 3( c) ( West 2016).  The Attorney General has concluded that a public official\nrepresenting the public body may receive a FOIA request by personal delivery at the public\nbody's principal place of business or during a public meeting of the public body,  but a public\nofficial\nsidewalk,  or at his or her private residence or place of business.\" \nNo.  12- 004,  issued January 26,  2012,  at 3. \n\nis not \" obligated to accept delivery of a FOIA request during a chance encounter on the\nIll. Att' y Gen.  Pub.  Acc.  Op. \n\n500 South Second Street,  Springfield,  Illinois 62706 • (\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \nFax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. \n\nNovember 17,  2017\n\nPage 2\n\nInstead of directing your request to the Township,  you submitted it to the personal\ne- mail address of the Township Clerk.  The Township Clerk has an official e- mail address issued\nby the Township.  Further,  you have not asserted or demonstrated that the Township Clerk uses\nher personal e- mail address— rather than her official Township e- mail address— as a means of\nconducting Township business such as receiving or responding to FOIA requests.  Because your\nFOIA request was not directed to a public body,  as required by section 3( c)  of FOIA,  the\nTownship did not receive or deny your FOIA request.  Accordingly,  no further action by this\noffice is warranted. \n\nIf you have any questions,  you may contact me at ( 217)  782- 9054, \n\nmhartman@atg. state. il.us,  or the Springfield address on the first page of this letter.  This letter\nserves to close this matter. \n\nVery truly yours, \n\nMATT H\n\n12\n\nTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n50407 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs.  Karen Lukasik,  Township Clerk\nAlgonquin Township\n3702 U. S.  Highway 14\nCrystal Lake,  Illinois 60014\n\nklukasik@algonquintownship. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A FOIA request sent to a township clerk's personal email","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-50407/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 17, 2017\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2017 PAC 50407\n\nDear Mr. \n\nThis determination is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn October 31, 2017, you submitted a FOIA request to the personal e- mail\n\naddress of Ms. Karen Lukasik seeking all e- mails that she exchanged with another individual\nbetween October 25, 2017, and October 31, 2017. Ms. Lukasik is the Algonquin Township\nTownship) Clerk. On November 9, 2017, you submitted a Request\nAccess Bureau alleging that the Township did not respond to your FOIA request and copied the\nTownship Clerk on your Request for Review. On the same day you submitted your Request for\nReview, the Township Clerk responded to you and to this office by stating that she had not\nreceived the request via her Township e- mail address, and asking you to re -submit the request to\nher Township e- mail address. \n\nfor Review to the Public\n\nSection 3(c) of FOIA (5 ILCS 140/ 3(c) (West 2016)) expressly requires that\n\nrequests be \" directed to the public body.\" A requester may submit a FOIA request to a public\nbody by personal delivery, mail, e- mail, fax, \" or other means available to the public body.\" 5\nILCS 140/ 3(c) (West 2016). The Attorney General has concluded that a public official\nrepresenting the public body may receive a FOIA request by personal delivery at the public\nbody's principal place of business or during a public meeting of the public body, but a public\nofficial\nsidewalk, or at his or her private residence or place of business.\" \nNo. 12- 004, issued January 26, 2012, at 3. \n\nis not \" obligated to accept delivery of a FOIA request during a chance encounter on the\nIll. Att' y Gen. Pub. Acc. Op. \n\nInstead of directing your request to the Township, you submitted it to the personal\ne- mail address of the Township Clerk. The Township Clerk has an official e- mail address issued\nby the Township. Further, you have not asserted or demonstrated that the Township Clerk uses\nher personal e- mail address— rather than her official Township e- mail address— as a means of\nconducting Township business such as receiving or responding to FOIA requests. Because your\nFOIA request was not directed to a public body, as required by section 3(c) of FOIA, the\nTownship did not receive or deny your FOIA request. Accordingly, no further action by this\noffice is warranted. \n\nIf you have any questions, you may contact me at (217) 782- 9054, \n\nmhartman@atg. state. il.us, or the Springfield address on the first page of this letter. This letter\nserves to close this matter. \n\nVery truly yours, \n\nMATT H\n\n12\n\nTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n50407 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMs. Karen Lukasik, Township Clerk\nAlgonquin Township\n3702 U. S. Highway 14\nCrystal Lake, Illinois 60014\n\nklukasik@algonquintownship. com"}
{"id":900,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-07-03","case_number":null,"request_numbers":["50831"],"title":"Southern Illinois University properly withheld consultant review under 7(1)(t)","filename":"50831, issued July 3, 2018.pdf","rel_path":null,"word_count":2544,"summary":"The Daily Egyptian requested a consultant review of Southern Illinois University's athletics game operations, which the University withheld under FOIA exemption 7(1)(t). The PAC determined the University properly withheld the record because the Athletic Director is not the 'head of the public body' and therefore could not waive the exemption.","plain_summary":"A student newspaper requested a consultant's report regarding university athletics operations. The university refused to release the report, claiming it was exempt from disclosure. The Attorney General's office agreed with the university, finding that the report was properly withheld and that the Athletic Director did not have the authority to waive that legal protection.","holding":"Southern Illinois University did not improperly withhold the requested consultant review record.","legal_question":"Whether the University's Athletic Director qualifies as the 'head of the public body' with the authority to waive the applicability of FOIA exemption 7(1)(t) regarding a consultant's review.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(t)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(t)"],"public_body":"Southern Illinois University","requesting_party":"Mr. Brian Munoz (The Daily Egyptian)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(t)","subject_description":"The request sought a consultant's review of university athletics game operations and the associated contract.","ocr_status":"ok","ocr_quality":92.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_e/50831%2C%20issued%20July%203%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["consultant report","university athletics","exemption 7(1)(t)","waiver of exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 3,  2018\n\nVia electronic mail\n\nMr.  Brian Munoz\n\nPhotography and Multimedia Editor\nThe Daily Egyptian\nbmunoz@dailyegyptian. com\n\nVia electronic mail\n\nMr.  Douglas McCarty\nAssociate General Counsel\n\nSouthern Illinois University\nAnthony Hall 318 — Mail Code 4307\n1265 Lincoln Drive\n\n[street address redacted for site publication -- see original PDF]\ndjmccarty@siu. edu\n\nRE:  FOIA Request\n\nfor Review — 2017 PAC 50831\n\nDear Mr.  Munoz and Mr. McCarty: \n\nThis determination letter is issued pursuant to section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons that follow,  the\n\nPublic Access Bureau concludes that Southern Illinois University ( University)  did not\nimproperly withhold a record responsive to Mr.  Brian Munoz' s November 30,  2017,  FOIA\n\nrequest. \n\nOn that date,  Mr. Munoz,  on behalf of The Daily Egyptian,  submitted a FOIA\nrequest to the University seeking \"[ t] he 2016 and/ or 2017 consultant review of [University] \nAthletics game operations AND the contract with the consultant.\" ( Emphasis in original.)'  Mr. \n\nMunoz further stated that the consultant \" review was mentioned by Thomas Tommy'  Bell, [ the\nUniversity' s]  Director of Athletics in an interview with the Southern Illinoisan on November 17, \n\nDaily Egyptian ( November 30,  2017). \n\nSouthern Illinois University Request for Public Records form submitted by Brian Munoz,  The\n\n500 South Second Street.  Springfield.  Illinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main.  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Brian Munoz\n\nMr.  Douglas McCarty\nJuly 3,  2018\nPage 2\n\n2017.\" 2 On December 7,  2017, the University extended the time to respond pursuant to section\n3( e)  of FOIA ( 5 ILCS 140/ 3( e) ( West 2016)).  On December 14,  2017,  the University provided\nMr. Munoz with a copy of the consultant' s contract with certain information redacted pursuant\nsection 7( 1)( b)  of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2017 Supp.)).  The University,  however, \nf) of\ndenied the portion of the request seeking the consultant review pursuant to section 7( 1)(\nFOIA ( 5 ILCS 140/ 7( 1) 0 (West 2017 Supp.)). \n\nto\n\nOn December 15,  2017,  this office received Mr. Munoz's Request for Review\n\ndisputing the denial of his request for the consultant' s review.  He asserted that Mr. Bell had\npublicly mentioned the consultant' s review of University game operations in an article published\nin the Southern Illinoisan3 and had specifically attributed changes that were made to the\nplacement of cheerleaders at games to one of the consultant' s recommendations.  He stated that\n\nthe change was implemented after some cheerleaders took a knee during the national anthem. \nMr.  Munoz further asserted: \n\nAt the Daily Egyptian,  we have reason to believe that these \" drafts, \nnotes,  recommendations,  memoranda and other records\"  are at this\n\ntime not preliminary and have been put into effect,  because Bell\nsaid this report is the reason the cheerleaders have been placed in\n\ndifferent areas during games,  and because the portion of the report\nwe received indicates that the consultant' s findings were shared\nwith staff in 2016. 141\n\nOn December 26,  2017,  this office forwarded a copy of the Request for Review to\n\nthe University and asked it to provide a copy of the consultant' s review for this office' s\nconfidential review, together with a detailed explanation of the legal and factual basis for the\n\nasserted exemption.  On January 5,  2018,  this office received a written response,  a copy of the\nreport at issue,  and an affidavit from Mr. Bell.  In its written response,  the University denied that\nMr.  Bell was the \" head of the public body\"  under FOIA but nevertheless contended that his\nstatement to the Southern Illinoisan did not publicly cite and identify the report.  On January 11, \n2018,  this office forwarded a copy of the University' s response to Mr. Munoz;  he replied on\n\nDaily Egyptian (November 30, 2017). \n\nSouthern Illinois University Request\n\nfor Public Records form submitted by Brian Munoz,  The\n\n3K.  Janis Esch,  Change in procedure keeps SIU cheerleaders gfffield,  court during national\n\nanthem,  Southern Illinoisan (November 17,  2017),  http:// thesouthern. com/ news/ local/ siu/ change- in- procedure- \nkeeps- siu- cheerleaders- off-field- court- during/ article_ 69060890- 3eb3- 5b6a- 9cbd- a74d529b210a. html ( last visited\nJanuary 30,  2018). \n\nmay concern ( December\n\n15,  2017). \n\n4E -mail from Brian Munoz,  Photography and Multimedia Editor,  The Daily Egyptian,  to whom it\n\n\fMr. Brian Munoz\n\nMr. Douglas McCarty\nJuly 3,  2018\nPage 3\n\nJanuary 18,  2018.  Mr. Munoz maintained that the consultant' s report was not preliminary and\ndisputed the University' s claim that Mr.  Bell was not \" the head of the public body.\"  He\ncontended that Mr. Bell was the head of the University' s athletics department.  Additionally,  Mr. \nMunoz argued that the University used public funds to perform the review and,  thus,  it was in the\npublic interest\nadditional\nof the public body\"  under FOIA.  On June 5,  2018,  the University provided a supplemental\nresponse to this office addressing that claim.  On June 18,  2018,  this office forwarded a copy of\nthat supplemental\n\nto know the contents of the report.  On May 22,  2018,  this office requested\ninformation from the University concerning its claim that Mr.  Bell was not the \" head\n\nresponse to Mr.  Munoz;  he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department of Public Health,  218 I11.  2d 390,  415 ( 2006).  A public body that withholds\na record \" has the burden of proving by clear and convincing evidence\"  that the record is exempt\nfrom disclosure.  5 ILCS 140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be\n\nnarrowly construed.  Lieber v.  Board of Trustees of Southern Illinois University,  176 111.  2d 401, \n407 ( 1997). \n\nSection 7( 1)( f) of FOIA exempts from disclosure: \n\nPreliminary drafts,  notes,  recommendations,  memoranda\nand other records in which opinions are expressed,  or policies or\n\nactions are formulated, except that a specific record or relevant\n\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. \n\nThe section 7( 1)(\nf) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\"  Harwood v. McDonough,  344 Ill. App.  3d 242,  247 ( 1st Dist. 2003).  The exemption\nis \" intended to protect the communications process and encourage frank and open discussion\n\namong agency employees before a final decision is made.\"  Harwood, 344 Ill. App.  3d at 248. \nSection 70)( f) does not exempt from disclosure purely factual material.  See 111.  Att' y Gen.  Pub. \nAcc.  Op.  No.  13- 015,  issued September 24,  2013,  at 7.  Rather, \"[ o] nly those portions of a\npredecisional document\nwithheld.\"  Kalven v.  City of Chicago,  2014 IL App ( 1st)  121846, ¶ 24,  7 N. E. 3d 741,  748 ( 2014) \nquoting Public Citizen,  Inc.  v.  Office of Management &  Budget,  598 F. 3d 865,  876 ( D. C.  Cir. \n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency' s\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.\"  Chemical Weapons Working\n\nthat reflect the give and take of the deliberative process may be\n\n\fMr.  Brian Munoz\n\nMr. Douglas McCarty\nJuly 3,  2018\nPage 4\n\nGroup v.  US. E.P.A.,  185 F. R. D.  1,  3 ( D. D. C.  1999) ( quoting Dudman Communications v. \nDepartment of the Air Force,  815 F. 2d 1565,  1568 ( D. C.  Cir.  1987)). \n\nFurther, courts have determined that the section 7( 1)(\n\nf) exemption may include\nf)] \n\nconsultants' reports: \" The pivotal fact that remains constant in each case in which the [ 7( 1)(\n\nexemption has been extended to consultants' documents is that 'the consultant does not represent\n\nan interest of its own,  or the interest of any other client,  when it advised the agency that hires it.'\" \nHarwood, 344 Ill. App.  3d at 248 ( citing Department of the Interior v. Klamath Water Users\nProtective Ass' n,  532 U. S.  1,  11,  121 S.  Ct.  1060,  1067 ( 2001)). \n\nIn its response to this office, the University asserted that \" Section 7( 1)(\n\nf) applies\n\nbecause the report in question was relied upon by the University as part of the deliberative\nprocess regarding improving its practices and procedures for sporting events.\" 5 The University\ncontended that the report was preliminary in nature,  even if any of the report' s recommendations\nwere later implemented or shared with staff, because the \" report was integral to the University' s\npre -decisional deliberations regarding the implementation of changes to procedures at sporting\nevents which is sufficient\n\nto bring the report fully within the ambit of Section 7( 1)(\n\nf)[.]\"\n\n6\n\nThis office' s review of the report in question confirmed that it reflects a\n\nconsultant' s assessment of procedures and practices at University sporting events;  the report\nreveals the consultant' s notes and recommendations for improving the events.  Although Mr. \nMunoz asserted that the report was shared with staff and that new event procedures have since\n\nbeen put into effect,  that claim does not undermine the Department' s assertion that the report\n\nconstitutes predecisional and deliberative material under section 7( 1)(\n\nf).  There is no indication\n\nthat the University adopted the report as final University policy,  as opposed to considering it in\nthe process of formulating a policy.  Accordingly, the report is exempt from disclosure pursuant\nto section 7( 1)( f) unless Mr. Bell\npublished in the Southern Illinoisan waived the exemption by publicly citing and identifying the\nreport. \n\nis the head of a public body and his statement\n\nin the article\n\nThe article in question concerned moving cheerleaders to the entrances to athletic\n\nfacilities before games after three cheerleaders participated in an off -field protest during the\nNational Anthem.  The article quoted Mr. Bell as follows: \n\n5Letter from Doug McCarty,  Associate General Counsel,  Southern Illinois University,  to Teresa\n\nLim,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( January 5,  2018). \n\nLim,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( January 5,  2018). \n\n6Letter from Doug McCarty,  Associate General Counsel,  Southern Illinois University, to Teresa\n\n\fMr.  Brian Mufioz\n\nMr. Douglas McCarty\nJuly 3,  2018\nPage 5\n\nOur spirit teams have greeted customers at the entrances in\n\nthe past,  so this is not a new procedure for Athletics.  In fact,  we\n\nhad a consultant review our game operations last year,  and one of\n\nhis recommendations was to make arriving to a game an event in\nand of itself 171\n\nThe University denied that Mr.  Bell was the \" head of the public body,\"  which\nFOIA defines as \" the president,  mayor,  chairman,  presiding officer,  director,  superintendent, \nmanager,  supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person' s duly authorized designee.\" ( Emphasis added.)  5\nILCS 140/ 2( e) ( West 2016).  The meaning of \"public body\"  includes \" all\nlegislative, executive, \nadministrative,  or advisory bodies of the State,  state universities and colleges, * * *  all other\nmunicipal corporations,  boards,  bureaus,  committees,  or commissions of this State, [ and]  any\nsubsidiary bodies of any of the foregoing including but not limited to committees and\nsubcommittees thereofj.'\"  5 ILCS 140/ 2( a) ( West 2016). \n\nIn its supplemental response to this office, the University described its\n\norganizational structure and provided this office with copies of organizational charts identifying\nleadership within the University. 8 According to the University,  the Director of Athletics\nAthletic Director)  reports to the Chancellor of Southern Illinois University Carbondale\nChancellor).  The Chancellor,  who is the chief operating officer of the University' s Carbondale\ncampus,  in turn reports to the Southern Illinois University President ( President).  The President is\nthe Chief Executive Officer of the entire University system and reports to the University' s Board\nof Trustees ( Board).  The University argued that the Athletic Director does not have \" primary\nexecutive and administrative authority\"  and therefore is not the \" head of the public body.\"  The\nUniversity asserted,  in pertinent part: \n\nK.  Janis Esch,  Change in procedure keeps SIU cheerleaders offfeld, court during national\n\nanthem,  Southern Illinoisan ( November 17,  2017),  http:// thesouthern.com/ news/ local/ siu/ change- in- procedure- \nkeeps- siu- cheerleaders- off-field-court- during/article_69060890- 3eb3- 5b6a-9cbd- a74d529b210a.html ( last visited\nJanuary 30,  2018). \n\norganization- chart. pdf and http:// siusystem. edu/ about/ organizational-\n\nstructure. shtml. \n\nCopies of the organizational charts are available online at:  https:// siu. edu/_ documents/ siu- \n\n\fMr.  Brian Munoz\n\nMr. Douglas McCarty\nJuly 3,  2018\nPage 6\n\nThe Athletic Director may not bind the University to contracts\nunless specifically delegated that authority by the Chancellor, \nBoard or President.  The Athletic Director may not hire or fire\nemployees without the consent of the Chancellor.  Thus,  while the\n\nAthletic Director certainly exercises managerial authority over his\nor her individual department,  the position is not vested with actual\n\nprimary executive and administrative authority.\" \nprimary executive and administrative authority\"  is exercised at. the\nlowest\n\nfor the Carbondale campus. 191\n\nlevel by the Chancellor\n\nInstead,  the\n\nThe University' s description of its leadership hierarchy and organizational charts\n\nindicates that the Department is merely a component of the University rather than a \" public\nbody\"  in its own right with independent operations or the authority to make primary executive\nand administrative decisions.  While Mr.  Bell\n\nis the head of the Department of Intercollegiate\n\nAthletics ( Department),  the Department\nand is subject to the Chancellor's direction.  It does not appear that the Athletic Director has the\n\nis part of the University' s formal organizational structure\n\nauthority to make primary executive or administrative decisions for the University.  Because the\nDepartment' s activities are a component of the programs and services offered by the University\nand because the Athletic Director's authority over the University is limited in terms of final\ndecision- making,  this office concludes that Mr. Bell\nAccordingly,  this office concludes that his reference to the consultant' s review could not have\nimproperly\nwaived the applicability of section 7( 1)(\nwithhold that record pursuant to that exemption. \n\nt) of FOIA,  and that the University did not\n\nis not the \" head of the public body.\" \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nRESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n50831 f 71f proper univ\n\nCarbondale,  to Teresa Lim ( June 5,  2018). \n\n9E -mail from Douglas J.  McCarty,  Associate General Counsel,  Southern Illinois University\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Consultant's review of university athletics operations and contract","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-50831/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 3, 2018\n\nVia electronic mail\n\nMr. Brian Munoz\n\nPhotography and Multimedia Editor\nThe Daily Egyptian\nbmunoz@dailyegyptian. com\n\nVia electronic mail\n\nMr. Douglas McCarty\nAssociate General Counsel\n\nSouthern Illinois University\nAnthony Hall 318 — Mail Code 4307\n1265 Lincoln Drive\n\n[street address redacted for site publication -- see original PDF]\ndjmccarty@siu. edu\n\nRE: FOIA Request\n\nfor Review — 2017 PAC 50831\n\nDear Mr. Munoz and Mr. McCarty: \n\nThis determination letter is issued pursuant to section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that Southern Illinois University (University) did not\nimproperly withhold a record responsive to Mr. Brian Munoz's November 30, 2017, FOIA\n\nrequest. \n\nOn that date, Mr. Munoz, on behalf of The Daily Egyptian, submitted a FOIA\nrequest to the University seeking \"[ t] he 2016 and/ or 2017 consultant review of [University] \nAthletics game operations AND the contract with the consultant.\" (Emphasis in original.)' Mr. \n\nMunoz further stated that the consultant \" review was mentioned by Thomas Tommy' Bell, [ the\nUniversity's] Director of Athletics in an interview with the Southern Illinoisan on November 17, \n\nDaily Egyptian (November 30, 2017). \n\nSouthern Illinois University Request for Public Records form submitted by Brian Munoz, The\n\n2017.\" 2 On December 7, 2017, the University extended the time to respond pursuant to section\n3(e) of FOIA (5 ILCS 140/ 3(e) (West 2016)). On December 14, 2017, the University provided\nMr. Munoz with a copy of the consultant's contract with certain information redacted pursuant\nsection 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2017 Supp.)). The University, however, \nf) of\ndenied the portion of the request seeking the consultant review pursuant to section 7(1)(FOIA (5 ILCS 140/ 7(1) 0 (West 2017 Supp.)). \n\nto\n\nOn December 15, 2017, this office received Mr. Munoz's Request for Review\n\ndisputing the denial of his request for the consultant's review. He asserted that Mr. Bell had\npublicly mentioned the consultant's review of University game operations in an article published\nin the Southern Illinoisan3 and had specifically attributed changes that were made to the\nplacement of cheerleaders at games to one of the consultant's recommendations. He stated that\n\nthe change was implemented after some cheerleaders took a knee during the national anthem. \nMr. Munoz further asserted: \n\nAt the Daily Egyptian, we have reason to believe that these \" drafts, \nnotes, recommendations, memoranda and other records\" are at this\n\ntime not preliminary and have been put into effect, because Bell\nsaid this report is the reason the cheerleaders have been placed in\n\ndifferent areas during games, and because the portion of the report\nwe received indicates that the consultant's findings were shared\nwith staff in 2016. 141\n\nOn December 26, 2017, this office forwarded a copy of the Request for Review to\n\nthe University and asked it to provide a copy of the consultant's review for this office's\nconfidential review, together with a detailed explanation of the legal and factual basis for the\n\nasserted exemption. On January 5, 2018, this office received a written response, a copy of the\nreport at issue, and an affidavit from Mr. Bell. In its written response, the University denied that\nMr. Bell was the \" head of the public body\" under FOIA but nevertheless contended that his\nstatement to the Southern Illinoisan did not publicly cite and identify the report. On January 11, \n2018, this office forwarded a copy of the University's response to Mr. Munoz; he replied on\n\nDaily Egyptian (November 30, 2017). \n\nSouthern Illinois University Request\n\nfor Public Records form submitted by Brian Munoz, The\n\n3K. Janis Esch, Change in procedure keeps SIU cheerleaders gfffield, court during national\n\nanthem, Southern Illinoisan (November 17, 2017), http:// thesouthern. com/ news/ local/ siu/ change- in- procedure- \nkeeps- siu- cheerleaders- off-field- court- during/ article_ 69060890- 3eb3- 5b6a- 9cbd- a74d529b210a. html (last visited\nJanuary 30, 2018). \n\nmay concern (December\n\n15, 2017). \n\n4E -mail from Brian Munoz, Photography and Multimedia Editor, The Daily Egyptian, to whom it\n\nJanuary 18, 2018. Mr. Munoz maintained that the consultant's report was not preliminary and\ndisputed the University's claim that Mr. Bell was not \" the head of the public body.\" He\ncontended that Mr. Bell was the head of the University's athletics department. Additionally, Mr. \nMunoz argued that the University used public funds to perform the review and, thus, it was in the\npublic interest\nadditional\nof the public body\" under FOIA. On June 5, 2018, the University provided a supplemental\nresponse to this office addressing that claim. On June 18, 2018, this office forwarded a copy of\nthat supplemental\n\nto know the contents of the report. On May 22, 2018, this office requested\ninformation from the University concerning its claim that Mr. Bell was not the \" head\n\nresponse to Mr. Munoz; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 I11. 2d 390, 415 (2006). A public body that withholds\na record \" has the burden of proving by clear and convincing evidence\" that the record is exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 (West 2016). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 111. 2d 401, \n407 (1997). \n\nSection 7(1)(f) of FOIA exempts from disclosure: \n\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\n\nactions are formulated, except that a specific record or relevant\n\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. \n\nThe section 7(1)(f) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The exemption\nis \" intended to protect the communications process and encourage frank and open discussion\n\namong agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. \nSection 70)(f) does not exempt from disclosure purely factual material. See 111. Att' y Gen. Pub. \nAcc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, \"[ o] nly those portions of a\npredecisional document\nwithheld.\" Kalven v. City of Chicago, 2014 IL App (1st) 121846, ¶ 24, 7 N. E. 3d 741, 748 (2014) \nquoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 (D. C. Cir. \n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency's\ndecision- making process in such a way as to discourage candid discussion within the agency and\n\nGroup v. US. E.P.A., 185 F. R. D. 1, 3 (D. D. C. 1999) (quoting Dudman Communications v. \nDepartment of the Air Force, 815 F. 2d 1565, 1568 (D. C. Cir. 1987)). \n\nFurther, courts have determined that the section 7(1)(f) exemption may include\nf)] \n\nconsultants' reports: \" The pivotal fact that remains constant in each case in which the [ 7(1)(exemption has been extended to consultants' documents is that 'the consultant does not represent\n\nan interest of its own, or the interest of any other client, when it advised the agency that hires it.'\" \nHarwood, 344 Ill. App. 3d at 248 (citing Department of the Interior v. Klamath Water Users\nProtective Ass' n, 532 U. S. 1, 11, 121 S. Ct. 1060, 1067 (2001)). \n\nIn its response to this office, the University asserted that \" Section 7(1)(f) applies\n\nbecause the report in question was relied upon by the University as part of the deliberative\nprocess regarding improving its practices and procedures for sporting events.\" 5 The University\ncontended that the report was preliminary in nature, even if any of the report's recommendations\nwere later implemented or shared with staff, because the \" report was integral to the University's\npre -decisional deliberations regarding the implementation of changes to procedures at sporting\nevents which is sufficient\n\nto bring the report fully within the ambit of Section 7(1)(f)[.]\"\n\n6\n\nThis office's review of the report in question confirmed that it reflects a\n\nconsultant's assessment of procedures and practices at University sporting events; the report\nreveals the consultant's notes and recommendations for improving the events. Although Mr. \nMunoz asserted that the report was shared with staff and that new event procedures have since\n\nbeen put into effect, that claim does not undermine the Department's assertion that the report\n\nconstitutes predecisional and deliberative material under section 7(1)(f). There is no indication\n\nthat the University adopted the report as final University policy, as opposed to considering it in\nthe process of formulating a policy. Accordingly, the report is exempt from disclosure pursuant\nto section 7(1)(f) unless Mr. Bell\npublished in the Southern Illinoisan waived the exemption by publicly citing and identifying the\nreport. \n\nis the head of a public body and his statement\n\nin the article\n\nThe article in question concerned moving cheerleaders to the entrances to athletic\n\nfacilities before games after three cheerleaders participated in an off -field protest during the\nNational Anthem. The article quoted Mr. Bell as follows: \n\n5 Letter from Doug McCarty, Associate General Counsel, Southern Illinois University, to Teresa\n\nLim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (January 5, 2018). \n\nLim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (January 5, 2018). \n\n6 Letter from Doug McCarty, Associate General Counsel, Southern Illinois University, to Teresa\n\nOur spirit teams have greeted customers at the entrances in\n\nthe past, so this is not a new procedure for Athletics. In fact, we\n\nhad a consultant review our game operations last year, and one of\n\nhis recommendations was to make arriving to a game an event in\nand of itself 171\n\nThe University denied that Mr. Bell was the \" head of the public body,\" which\nFOIA defines as \" the president, mayor, chairman, presiding officer, director, superintendent, \nmanager, supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person's duly authorized designee.\" (Emphasis added.) 5\nILCS 140/ 2(e) (West 2016). The meaning of \"public body\" includes \" all\nlegislative, executive, \nadministrative, or advisory bodies of the State, state universities and colleges, * * * all other\nmunicipal corporations, boards, bureaus, committees, or commissions of this State, [ and] any\nsubsidiary bodies of any of the foregoing including but not limited to committees and\nsubcommittees thereofj.'\" 5 ILCS 140/ 2(a) (West 2016). \n\nIn its supplemental response to this office, the University described its\n\norganizational structure and provided this office with copies of organizational charts identifying\nleadership within the University. 8 According to the University, the Director of Athletics\nAthletic Director) reports to the Chancellor of Southern Illinois University Carbondale\nChancellor). The Chancellor, who is the chief operating officer of the University's Carbondale\ncampus, in turn reports to the Southern Illinois University President (President). The President is\nthe Chief Executive Officer of the entire University system and reports to the University's Board\nof Trustees (Board). The University argued that the Athletic Director does not have \" primary\nexecutive and administrative authority\" and therefore is not the \" head of the public body.\" The\nUniversity asserted, in pertinent part: \n\nK. Janis Esch, Change in procedure keeps SIU cheerleaders offfeld, court during national\n\nanthem, Southern Illinoisan (November 17, 2017), http:// thesouthern.com/ news/ local/ siu/ change- in- procedure- \nkeeps- siu- cheerleaders- off-field-court- during/article_69060890- 3eb3- 5b6a-9cbd- a74d529b210a.html (last visited\nJanuary 30, 2018). \n\norganization- chart. pdf and http:// siusystem. edu/ about/ organizational-\n\nstructure. shtml. \n\nCopies of the organizational charts are available online at: https:// siu. edu/_ documents/ siu- \n\nThe Athletic Director may not bind the University to contracts\nunless specifically delegated that authority by the Chancellor, \nBoard or President. The Athletic Director may not hire or fire\nemployees without the consent of the Chancellor. Thus, while the\n\nAthletic Director certainly exercises managerial authority over his\nor her individual department, the position is not vested with actual\n\nprimary executive and administrative authority.\" \nprimary executive and administrative authority\" is exercised at. the\nlowest\n\nfor the Carbondale campus. 191\n\nlevel by the Chancellor\n\nInstead, the\n\nThe University's description of its leadership hierarchy and organizational charts\n\nindicates that the Department is merely a component of the University rather than a \" public\nbody\" in its own right with independent operations or the authority to make primary executive\nand administrative decisions. While Mr. Bell\n\nis the head of the Department of Intercollegiate\n\nAthletics (Department), the Department\nand is subject to the Chancellor's direction. It does not appear that the Athletic Director has the\n\nis part of the University's formal organizational structure\n\nauthority to make primary executive or administrative decisions for the University. Because the\nDepartment's activities are a component of the programs and services offered by the University\nand because the Athletic Director's authority over the University is limited in terms of final\ndecision- making, this office concludes that Mr. Bell\nAccordingly, this office concludes that his reference to the consultant's review could not have\nimproperly\nwaived the applicability of section 7(1)(withhold that record pursuant to that exemption. \n\nt) of FOIA, and that the University did not\n\nis not the \" head of the public body.\" \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nRESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n50831 f 71f proper univ\n\nCarbondale, to Teresa Lim (June 5, 2018). \n\n9E -mail from Douglas J. McCarty, Associate General Counsel, Southern Illinois University"}
{"id":902,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-21","case_number":null,"request_numbers":["51630"],"title":"Illinois Department of Human Services improperly redacted mental health policy under 7(1)(e)","filename":"51630, issued January 21, 2020.pdf","rel_path":null,"word_count":1412,"summary":"The requester sought various policies from the Illinois Department of Human Services, which the Department partially redacted under FOIA Section 7(1)(e). The PAC determined that the Department failed to meet its burden of proof to justify the redactions in policy 2735.","plain_summary":"A requester asked the Illinois Department of Human Services for policies from the Elgin Mental Health Center. The Department provided some policies but blacked out parts of three, claiming they contained sensitive security information. The Attorney General's office reviewed the redacted portions and agreed with the Department that redactions about contraband searches and medication security were proper, but found the redactions about routine incident response in policy 2735 were not justified. The Department was instructed to provide an unredacted copy of policy 2735 to the requester.","holding":"The Illinois Department of Human Services improperly redacted portions of the requested policy 2735.","legal_question":"Whether the Illinois Department of Human Services properly invoked the FOIA exemption for records related to security procedures (Section 7(1)(e)) to redact portions of a mental health center policy.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(e)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(e)"],"public_body":"Illinois Department of Human Services","requesting_party":"S. Piya Mukherjee (on behalf of requester)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(e)","subject_description":"The request involved access to internal policies and incident reporting procedures for the Elgin Mental Health Center and Forensic Treatment Program.","ocr_status":"ok","ocr_quality":97.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_e/51630%2C%20issued%20January%2021%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["mental health records","security exemption","redaction","policy disclosure"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nA\"ITORNEY GENERAL\n\nJanuary 21,  2020\n\nVia electronic mail\n\nMr.  Thomas D.  Mulcrone\n\nAssociate General Counsel\n\nIllinois Department of Human Services\n\n100 West Randolph,  Suite 6- 400\n\n[street address redacted for site publication -- see original PDF]\nDHS. FOIAOfficer@illinois. gov\n\nRE:  FOIA Request for Review — 2018 PAC 51630\n\nDear\n\nand Mr. Mulcrone: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois Department of Human Services ( Department) \nimproperly redacted certain records responsive to\nFOIA request. \n\nDecember 12,  2017\n\nOn December 12,  2017, \n\nsubmitted a FOIA request to the\n\nDepartment seeking copies of twelve Elgin Mental Health Center and Forensic Treatment\nProgram policies and one of its policy indexes.  On January 9,  2018,  the Department provided\nwith ten of the requested policies but redacted certain information from policy\n\n2731 and 2735 pursuant to section 7( 1)( e)  of FOIA ( 5 ILCS 140/ 7( 1)( e) ( West 2016),  as\namended by Public Act 100- 026,  effective August 4,  2017;  100- 201,  effective August 18,  2017). \nfor Review disputing the denial of\nsubmitted this Request\nOn January 24,  2018, \nthe \" FTP policy index\"; ( 2) \" Ppm 1703 Medication and Ppm 3510 Interpersonal relations\n1) \nand ( 3)  Ppm 2735 Incident reporting of allegations of abuse and\n\nbetween staff and patients(;]\" \nneglect.\" I\n\nLetter from\n\nto Public Access Counselor ( January 24,  2018). \n\n500 South Second Street,  Springfield, \n\n100 Rtcsr Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •'\n601 South University Ave.,  Carbondale, \n\n217)  782- 1090 • \" Ii' Y: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n1\"  IY: (800)  964- 3013 •  Fax: ( 312)  814- 3806\nII,  62901 • ( 618)  529- 6400 • \" 19Y: (877)  675- 9339 •  Fax ( 618)  529- 6416 • \n\nIllinois 62701 • (\n\n\fMr.  Thomas D.  Mulcrone\n\nJanuary 21,  2020\nPage 2\n\nOn February 23,  2018,  this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide unredacted copies of the records that it redacted or withheld\n\npursuant to section 7( 1)( e)  for our confidential review.  This office also requested a detailed\n\nexplanation of the factual and legal bases for the assertion of section 7( 1)( e).  On March 6,  2018, \n\nthe Department provided this office with unredacted copies of the records at issue and its written\n\nanswer. \n\nIn this response,  the Department acknowledged that it originally failed to send\n\na copy of the Elgin Mental Health Center Forensic Treatment Program Policy Index. \n\nThat same day, DHS provided\n3510 and a redacted version of policy 1703.  On April 23,  2018,  this office forwarded a copy of\nhe did not reply. \nDHS'  response letter to\n\nwith this document as well as a copy of policy\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2018);  see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\" \n140/\n\nfrom disclosure.  5 ILCS\n\nthat a record is exempt\n\n1. 2 ( West 2018). \n\nSections 7( 1)( e)  of FOIA\n\nSection 7( 1)( e)  of FOIA exempts from disclosure \"[ r] ecords that relate to or affect\n\ninstitutions and detention facilities.\"  The Public Access Counselor\nthe security of correctional\nhas determined that disclosure of a requested record must pose a security risk to a correctional\nfacility to fall within the scope of section 7( 1)( e).  See,  e. g.,. Ill.  Att' y Gen.  PAC Req.  Rev.  Ltr. \n32159,  issued April 17,  2015,  at 3 (\" Construing section 7( 1)( e)  in light of the purpose of FOIA\nand its other provisions,  it better comports with FOIA to conclude that section 7( 1)( e)  applies to\n\nrecords that could jeopardize the security of a correctional\nrecords merely pertaining to security in any manner whatsoever.\"). \n\ninstitution if disclosed,  rather than any\n\nIn this matter, \nMental Health Center because it is a hospital\nfacility.  DHS'  response to this office asserts that: \n\nargues that section 7( 1)(\nrather than a correctional\n\ne)  does not apply to Elgin\ninstitution or detention\n\nCertain portions of EMHC * * *  are designated for\n\ninpatient and outpatient treatment for individuals referred through\n\nthe court system who are found \" not guilty by reason of insanity\" \nor \" unfit to stand trial.\"  These patients,  also referred to as forensic\n\npatients,  reside on secure units and receive court- ordered\n\ntreatment.  As a result,  the Department may exempt records related\n\n\fMr.  Thomas D.  Mulcrone\n\nJanuary 21,  2020\nPage 3\n\nto the security and safety of Elgin Mental Health Center under\nSection 7( 1)( e)  of FOIA. 121\n\nSection 7( 1)(\nas prisons.  Even though Elgin Mental Health Center does operate as a hospital,  it detains\n\ne)  of FOIA encompasses detention facilities as well as correctional\n\ninstitutions such\n\npatients pursuant to court orders and therefore unquestionably serves as a detention facility for\nforensic patients;  the plain language of section 7( 1)( e)  does not restrict its applicability to\nfacilities run solely by the Illinois Department of Corrections.  See Ill.  Att' y Gen.  PAC Req.  Rev. \nLtr. 35184,  issued July 22,  2015,  at 2 ( treatment center that detains individuals under civil\ncommitment orders constitutes a detention facility for purposes of section 7( 1)( e)  of FOIA). \n\nIn it response to this office,  the Department stated that the redacted information\n\ncontains details about searching for weapons and contraband,  procedures for responding to\ncriminal activity,  serious incidents and resident deaths,  and the locations of psychotropic\nmedications and procedures for validating medication orders.  The Department asserted that all\nof the redacted information directly relates to security and that disclosure of the information\nwould endanger security by enabling patients'  to evade detection of weapons and contraband, \nfrustrate investigations,  and gain unauthorized access to medications. \n\nThis office has reviewed the redacted portions of the requested policies,  which\n\ncontain detailed information of how the Elgin Mental Health Center conducts contraband\nsearches,  the location and security of controlled substances within the facility,  and measures\ntaken by staff in response to certain types of incidents.  Our office agrees with the Department\nthat the polices on conducting contraband searches and the location and security of controlled\nsubstances within the facility fall within the scope of section 7( 1)( e)  of FOIA.  Disclosure of this\ndetailed information about how the Department searches for contraband and secures medications\nwould provide insights that detainees could be used to undermine the security of the Elgin\nMental Health Center.  Therefore,  this office concludes that the Department has sustained its\nburden of demonstrating that information redacted from these two policies is exempt from\ndisclosure under section 7( 1)( e)  of FOIA. \n\nHowever,  the redacted portions of the policy on how staff responds to certain\n\ntypes of incidents consists of general\ninformation and evidence and contacting certain employees or agencies.  Unlike the redacted\nportions of the two other policies,  the redacted portions of this policy do not appear to contain\nspecific details of confidential procedures that could be exploited by patients to jeopardize the\nsecurity of the Elgin Mental Health Center.  Accordingly, this office concludes that the\n\ninformation about routine steps such as gathering\n\n2E -mail from Thomas Mulcrone, Associate General Counsel/ FOIA Officer, Illinois Department of\n\nHuman Services,  to S.  Piya Mukherjee,  Esq.,  Office of the Illinois Attorney General,  Public Access Bureau ( March\n6,  2018). \n\n\fMr.  Thomas D.  Mulcrone\n\nJanuary 21,  2020\nPage 4\n\nDepartment has not met its burden of demonstrating that the redacted portions of this policy are\nexempt from disclosure under section 7( 1)( e)  of FOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Department provide\nwith an unredacted copy of policy 2735.  The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nbinding opinion.  This letter serves to close this file.  Please contact me at ( 312)  814- 5383 or the\nChicago address on the first page of this letter if you have any questions. \n\nVery truly your, \n\nCHRISTINA M.  LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n51630 f 71e proper\n\nimproper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Internal policies and incident reporting procedures for a mental health center","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-51630/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nA\"ITORNEY GENERAL\n\nJanuary 21, 2020\n\nVia electronic mail\n\nMr. Thomas D. Mulcrone\n\nAssociate General Counsel\n\nIllinois Department of Human Services\n\n100 West Randolph, Suite 6- 400\n\n[street address redacted for site publication -- see original PDF]\nDHS. FOIAOfficer@illinois. gov\n\nRE: FOIA Request for Review — 2018 PAC 51630\n\nDear\n\nand Mr. Mulcrone: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois Department of Human Services (Department) \nimproperly redacted certain records responsive to\nFOIA request. \n\nDecember 12, 2017\n\nOn December 12, 2017, \n\nsubmitted a FOIA request to the\n\nDepartment seeking copies of twelve Elgin Mental Health Center and Forensic Treatment\nProgram policies and one of its policy indexes. On January 9, 2018, the Department provided\nwith ten of the requested policies but redacted certain information from policy\n\n2731 and 2735 pursuant to section 7(1)(e) of FOIA (5 ILCS 140/ 7(1)(e) (West 2016), as\namended by Public Act 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). \nfor Review disputing the denial of\nsubmitted this Request\nOn January 24, 2018, \nthe \" FTP policy index\"; (2) \" Ppm 1703 Medication and Ppm 3510 Interpersonal relations\n1) \nand (3) Ppm 2735 Incident reporting of allegations of abuse and\n\nbetween staff and patients(;]\" \nneglect.\" I\n\nLetter from\n\nto Public Access Counselor (January 24, 2018). \n\nOn February 23, 2018, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide unredacted copies of the records that it redacted or withheld\n\npursuant to section 7(1)(e) for our confidential review. This office also requested a detailed\n\nexplanation of the factual and legal bases for the assertion of section 7(1)(e). On March 6, 2018, \n\nthe Department provided this office with unredacted copies of the records at issue and its written\n\nanswer. \n\nIn this response, the Department acknowledged that it originally failed to send\n\na copy of the Elgin Mental Health Center Forensic Treatment Program Policy Index. \n\nThat same day, DHS provided\n3510 and a redacted version of policy 1703. On April 23, 2018, this office forwarded a copy of\nhe did not reply. \nDHS' response letter to\n\nwith this document as well as a copy of policy\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2018); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" \n140/\n\nfrom disclosure. 5 ILCS\n\nthat a record is exempt\n\n1. 2 (West 2018). \n\nSections 7(1)(e) of FOIA\n\nSection 7(1)(e) of FOIA exempts from disclosure \"[ r] ecords that relate to or affect\n\ninstitutions and detention facilities.\" The Public Access Counselor\nthe security of correctional\nhas determined that disclosure of a requested record must pose a security risk to a correctional\nfacility to fall within the scope of section 7(1)(e). See, e. g.,. Ill. Att' y Gen. PAC Req. Rev. Ltr. \n32159, issued April 17, 2015, at 3 (\" Construing section 7(1)(e) in light of the purpose of FOIA\nand its other provisions, it better comports with FOIA to conclude that section 7(1)(e) applies to\n\nrecords that could jeopardize the security of a correctional\nrecords merely pertaining to security in any manner whatsoever.\"). \n\ninstitution if disclosed, rather than any\n\nIn this matter, \nMental Health Center because it is a hospital\nfacility. DHS' response to this office asserts that: \n\nargues that section 7(1)(rather than a correctional\n\ne) does not apply to Elgin\ninstitution or detention\n\nCertain portions of EMHC * * * are designated for\n\nto the security and safety of Elgin Mental Health Center under\nSection 7(1)(e) of FOIA. 121\n\nSection 7(1)(as prisons. Even though Elgin Mental Health Center does operate as a hospital, it detains\n\ne) of FOIA encompasses detention facilities as well as correctional\n\ninstitutions such\n\npatients pursuant to court orders and therefore unquestionably serves as a detention facility for\nforensic patients; the plain language of section 7(1)(e) does not restrict its applicability to\nfacilities run solely by the Illinois Department of Corrections. See Ill. Att' y Gen. PAC Req. Rev. \nLtr. 35184, issued July 22, 2015, at 2 (treatment center that detains individuals under civil\ncommitment orders constitutes a detention facility for purposes of section 7(1)(e) of FOIA). \n\nIn it response to this office, the Department stated that the redacted information\n\ncontains details about searching for weapons and contraband, procedures for responding to\ncriminal activity, serious incidents and resident deaths, and the locations of psychotropic\nmedications and procedures for validating medication orders. The Department asserted that all\nof the redacted information directly relates to security and that disclosure of the information\nwould endanger security by enabling patients' to evade detection of weapons and contraband, \nfrustrate investigations, and gain unauthorized access to medications. \n\nThis office has reviewed the redacted portions of the requested policies, which\n\ncontain detailed information of how the Elgin Mental Health Center conducts contraband\nsearches, the location and security of controlled substances within the facility, and measures\ntaken by staff in response to certain types of incidents. Our office agrees with the Department\nthat the polices on conducting contraband searches and the location and security of controlled\nsubstances within the facility fall within the scope of section 7(1)(e) of FOIA. Disclosure of this\ndetailed information about how the Department searches for contraband and secures medications\nwould provide insights that detainees could be used to undermine the security of the Elgin\nMental Health Center. Therefore, this office concludes that the Department has sustained its\nburden of demonstrating that information redacted from these two policies is exempt from\ndisclosure under section 7(1)(e) of FOIA. \n\nHowever, the redacted portions of the policy on how staff responds to certain\n\ntypes of incidents consists of general\ninformation and evidence and contacting certain employees or agencies. Unlike the redacted\nportions of the two other policies, the redacted portions of this policy do not appear to contain\nspecific details of confidential procedures that could be exploited by patients to jeopardize the\nsecurity of the Elgin Mental Health Center. Accordingly, this office concludes that the\n\ninformation about routine steps such as gathering\n\n2E -mail from Thomas Mulcrone, Associate General Counsel/ FOIA Officer, Illinois Department of\n\nHuman Services, to S. Piya Mukherjee, Esq., Office of the Illinois Attorney General, Public Access Bureau (March\n\nDepartment has not met its burden of demonstrating that the redacted portions of this policy are\nexempt from disclosure under section 7(1)(e) of FOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Department provide\nwith an unredacted copy of policy 2735. The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nbinding opinion. This letter serves to close this file. Please contact me at (312) 814- 5383 or the\nChicago address on the first page of this letter if you have any questions. \n\nVery truly your, \n\nCHRISTINA M. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n51630 f 71e proper\n\nimproper sa"}
{"id":903,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-01","case_number":null,"request_numbers":["51711"],"title":"City of Chicago Department of Public Health improperly denied FOIA request as unduly burdensome","filename":"51711, issued April 1, 2019.pdf","rel_path":null,"word_count":1174,"summary":"The requester sought communications and performance reports regarding the operation of specific mental health centers, which the City of Chicago Department of Public Health denied as unduly burdensome. The PAC determined the Department failed to follow the required procedures for claiming an unduly burdensome exemption and ordered the release of the records.","plain_summary":"A requester asked the Chicago Department of Public Health for records about mental health center operations, but the City claimed the request was too broad and burdensome to fulfill. The Attorney General's office found that the City did not follow the correct legal steps to prove the request was burdensome. Consequently, the City was ordered to provide the requested records, subject to any appropriate redactions.","holding":"The Department of Public Health improperly denied the request as unduly burdensome because it failed to comply with the procedural requirements of section 3(g) of FOIA.","legal_question":"Whether the Department of Public Health properly invoked the 'unduly burdensome' exemption under section 3(g) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Department of Public Health","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"fees","subject_description":"The request sought communications and performance reports regarding the operation of the CCHHS-Roseland Community Triage and Mental Health Centers.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_f/51711%2C%20issued%20April%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","FOIA request","public health","records access"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril\n\n1,  2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Monica Hernandez\n\nFreedom of Information Act Officer\n\nDepartment of Public Health\n\nCity of Chicago\n333 South State Street,  Room 200\n\nChicago,  Illinois 60604\n\ncdphfoia@cityofchicago.\n\norg\n\nRE:  FOIA Request for Review — 2018 PAC 51711\n\nDear\n\nand Ms.  Hernandez: \n\nThis determination is issued pursuant to section 9. 5( I) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons discussed below,  the\nPublic Access Bureau concludes that the City of Chicago Department of Public Health\nDepartment) \n\nJanuary 10,  2018,  FOIA request. \n\nimproperly denied a portion of\n\nOn that date, \nseeking,  in relevant part,  copies of records: \n\nsubmitted a three- part FOIA request to the Department\n\nof Cook County Health and Hospitals System ( CCHHS) \ncommunications with [ the Department] ( emails,  memos,  letters, \n\nother records),  during the past 12 months,  about\nincluding that of its agent,  Community Counseling Centers of\nChicago, \" C4\")  of the CCHHS- Roseland Community Triage and\nCCHHS- Roseland Mental (\" Behavioral\")  Health Centers.  Please\n\nthe operation\n\ninclude copies of any quarterly and annual performance reports\nand financial\n\nreports,  reports of staffing and any other reports\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529. 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Monica Hernandez\n\nApril\n\n1,  2019\n\nPage 2\n\npertaining to the performance and cost of the Behavioral Health\nServices\"  and communications and amended agreements on the\n\nplanned change in CCHHS contracted service provider from C4 to\nanother agency. t11\n\ninformed\n\nto section 3( e)  of FOIA ( 5 ILCS 140/ 3( e) ( West 2016)).  In a\n\nOn January 12,  2018,  the Department\nby five business days pursuant\nJanuary 30,  2018,  e- mail,  the Department sent\nthe above -quoted portion of\nFOIA ( 5 ILCS 140/ 3( g) ( West 2016)).  On February 14,  2018,  this office received\nRequest for Review challenging the Department' s denial of the above -quoted portion of her\nrequest pursuant to section 3( g)  of FOIA. \n\nrequest as unduly burdensome pursuant to section 3( g)  of\n\nthat it was extending its time to respond\n\na letter dated January 29,  2018,  denying\n\nOn February 20,  2018,  this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide an explanation for treating the relevant portion of\nrequest as unduly burdensome.  On March 2,  2018,  the Department provided a written response. \nOn March 5,  2018,  this office forwarded the Department' s response to\n2018, \n\non March 15, \n\nreplied. \n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" . 5 ILCS\n140/ 1 ( West 2016).  Under section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2016)), \"[ a] ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \nSection 3( d)  of FOIA ( 5 ILCS 140/ 3( d) ( West 2016))  provides that \"[ e] ach public body shall, \npromptly, either comply with or deny a request for public records within 5 business days after its\nreceipt of the request,  unless the time for response is properly extended under subsection ( e)  of\nthis Section.\"  Section 3( e)  permits a public body to extend its time for response by five business\ndays. \n\nThe Department deemed\n\nJanuary 10,  2018,  FOIA request unduly\n\nburdensome under section 3( g)  of FOIA, which provides,  in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\n\nLetter from\n\nto Jennifer Herd,  CDPH FOIA Officer ( January 10,  2018). \n\n\fMs.  Monica Hernandez\n\nApril\n\n1,  2019\n\nPage 3\n\nno way to narrow the request and the burden on the public body\noutweighs the public interest\nin the information.  Before invoking\nthis exemption,  the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions.  If any public body responds\nto a categorical\nburden its operation and the conditions described above are met,  it\nshall do so in writing,  specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body.  Such a response shall be\ntreated as a denial of the request for information. \n\nrequest by stating that compliance would unduly\n\nSection 3( d)  of FOIA,  however,  provides: \" A public body that fails to respond to a request\nreceived may not treat the request as unduly burdensome under subsection ( g).\" \n\nThe Department does not dispute that it received\n\nFOIA request on\n\nJanuary 10,  2018.  On January 12,  2018,  the Department\ntimely extended its time to respond to\nthe request by five business days.  Accordingly,  taking into account the January 15,  2018,  Dr. \nMartin Luther King,  Jr. holiday,  the Department' s response to\n2018.  However, the Department did not respond to\ndays after receipt.  The Department has not asserted that it and\nagreed to an extension\nbeyond January 25,  2018,  nor is there any indication that they did.  Therefore,  the Department' s\nJanuary 30,  2018,  response was untimely,  and the Department waived the opportunity to deny\nthe relevant portion of\nrequest as unduly burdensome.  See Ill. Att'y Gen.  Pub. Acc. \nOp.  No.  14- 007,  issued August 14,  2014,  at 8 ( public body that failed to issue timely response\nand failed to comply with the requisite procedures in section 3( g)  improperly denied request as\nunduly burdensome). \n\nuntil January 30,  2018,  thirteen\n\nwas due on January 25, \n\nAccordingly,  this office requests that the Department provide the requested\nsubject only to appropriate redactions under section 7 of FOIA ( 5 ILCS\nrecords to\n140/ 7 ( West 2017 Supp.),  as amended by Public Act 100- 732,  effective August 3,  2018). \nIn\naccordance with section 9( a)  of FOIA (5 ILCS 140/ 9( a) ( West 2016)),  the Department must\nprovide a detailed factual basis for the applicability of any exemption under which information is\n\nredacted or withheld. \n\n\fMs.  Monica Hernandez\n\nApril\n\n1,  2019\n\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at ( 217)  524- 7958,  or LHarter@atg. state. il.us. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n51711 f 3g and burd improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Communications and performance reports on mental health centers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-51711/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril\n\n1, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Monica Hernandez\n\nFreedom of Information Act Officer\n\nDepartment of Public Health\n\nCity of Chicago\n333 South State Street, Room 200\n\nChicago, Illinois 60604\n\ncdphfoia@cityofchicago.\n\norg\n\nRE: FOIA Request for Review — 2018 PAC 51711\n\nDear\n\nand Ms. Hernandez: \n\nThis determination is issued pursuant to section 9. 5(I) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons discussed below, the\nPublic Access Bureau concludes that the City of Chicago Department of Public Health\nDepartment) \n\nJanuary 10, 2018, FOIA request. \n\nimproperly denied a portion of\n\nOn that date, \nseeking, in relevant part, copies of records: \n\nsubmitted a three- part FOIA request to the Department\n\nof Cook County Health and Hospitals System (CCHHS) \ncommunications with [ the Department] (emails, memos, letters, \n\nother records), during the past 12 months, about\nincluding that of its agent, Community Counseling Centers of\nChicago, \" C4\") of the CCHHS- Roseland Community Triage and\nCCHHS- Roseland Mental (\" Behavioral\") Health Centers. Please\n\nthe operation\n\ninclude copies of any quarterly and annual performance reports\nand financial\n\nreports, reports of staffing and any other reports\n\npertaining to the performance and cost of the Behavioral Health\nServices\" and communications and amended agreements on the\n\nplanned change in CCHHS contracted service provider from C4 to\nanother agency. t11\n\ninformed\n\nto section 3(e) of FOIA (5 ILCS 140/ 3(e) (West 2016)). In a\n\nOn January 12, 2018, the Department\nby five business days pursuant\nJanuary 30, 2018, e- mail, the Department sent\nthe above -quoted portion of\nFOIA (5 ILCS 140/ 3(g) (West 2016)). On February 14, 2018, this office received\nRequest for Review challenging the Department's denial of the above -quoted portion of her\nrequest pursuant to section 3(g) of FOIA. \n\nrequest as unduly burdensome pursuant to section 3(g) of\n\nthat it was extending its time to respond\n\na letter dated January 29, 2018, denying\n\nOn February 20, 2018, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide an explanation for treating the relevant portion of\nrequest as unduly burdensome. On March 2, 2018, the Department provided a written response. \nOn March 5, 2018, this office forwarded the Department's response to\n2018, \n\non March 15, \n\nreplied. \n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\". 5 ILCS\n140/ 1 (West 2016). Under section 1. 2 of FOIA (5 ILCS 140/ 1. 2 (West 2016)), \"[ a] ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \nSection 3(d) of FOIA (5 ILCS 140/ 3(d) (West 2016)) provides that \"[ e] ach public body shall, \npromptly, either comply with or deny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly extended under subsection (e) of\nthis Section.\" Section 3(e) permits a public body to extend its time for response by five business\ndays. \n\nThe Department deemed\n\nJanuary 10, 2018, FOIA request unduly\n\nburdensome under section 3(g) of FOIA, which provides, in pertinent part: \n\nno way to narrow the request and the burden on the public body\noutweighs the public interest\nin the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body responds\nto a categorical\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. \n\nrequest by stating that compliance would unduly\n\nSection 3(d) of FOIA, however, provides: \" A public body that fails to respond to a request\nreceived may not treat the request as unduly burdensome under subsection (g).\" \n\nThe Department does not dispute that it received\n\nFOIA request on\n\nJanuary 10, 2018. On January 12, 2018, the Department\ntimely extended its time to respond to\nthe request by five business days. Accordingly, taking into account the January 15, 2018, Dr. \nMartin Luther King, Jr. holiday, the Department's response to\n2018. However, the Department did not respond to\ndays after receipt. The Department has not asserted that it and\nagreed to an extension\nbeyond January 25, 2018, nor is there any indication that they did. Therefore, the Department's\nJanuary 30, 2018, response was untimely, and the Department waived the opportunity to deny\nthe relevant portion of\nrequest as unduly burdensome. See Ill. Att'y Gen. Pub. Acc. \nOp. No. 14- 007, issued August 14, 2014, at 8 (public body that failed to issue timely response\nand failed to comply with the requisite procedures in section 3(g) improperly denied request as\nunduly burdensome). \n\nuntil January 30, 2018, thirteen\n\nwas due on January 25, \n\nAccordingly, this office requests that the Department provide the requested\nsubject only to appropriate redactions under section 7 of FOIA (5 ILCS\nrecords to\n140/ 7 (West 2017 Supp.), as amended by Public Act 100- 732, effective August 3, 2018). \nIn\naccordance with section 9(a) of FOIA (5 ILCS 140/ 9(a) (West 2016)), the Department must\nprovide a detailed factual basis for the applicability of any exemption under which information is\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 524- 7958, or LHarter@atg. state. il.us. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n51711 f 3g and burd improper mun"}
{"id":904,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-05-07","case_number":null,"request_numbers":["51718"],"title":"Chicago Police Department partially violated FOIA by not providing database reports","filename":"51718, issued May 7, 2018.pdf","rel_path":null,"word_count":2757,"summary":"The requester sought specific police case reports and the Chicago Police Department's Automated Incident Reporting Application (AIRA) user manual. The PAC determined the CPD improperly responded to the request for case reports but correctly withheld the manual under a security exemption.","plain_summary":"A requester asked the Chicago Police Department for case reports and a copy of the AIRA user manual. The Attorney General's office found that the police department improperly responded to the request for the case reports, concluding that the requester sought existing data from a database, not a new record. The determination does not address whether the police department properly withheld the AIRA manual; it only describes the department's claim of an exemption and the requester's dispute, without reaching a final conclusion on that item.","holding":"","legal_question":"Whether the Chicago Police Department violated FOIA by failing to provide requested case reports and by withholding an internal software manual.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(o)"],"public_body":"Chicago Police Department","requesting_party":"Teresa Lim (Assistant Attorney General) / Requester name redacted","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved access to police case reports and an internal technical manual for the department's incident reporting software.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_o/51718%2C%20issued%20May%207%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","software manual","security exemption","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMay 7,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Charise Valente\n\nGeneral Counsel\n\nChicago Police Department\n\n3510 South Michigan Avenue\n\nChicago,  Illinois 60653\n\npacola@chicagopolice. org\n\nRE:  FOIA Request for Review — 2018 PAC 51718;  CPD No. \n\nDear\n\nand Ms.  Valente: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department ( CPD)  improperly\nresponded to the first item of\nimproperly deny the second item. \n\nJanuary 10,  2018,  FOIA request,  but did not\n\nOn that date, \n\nsubmitted a FOIA request to CPD seeking the following: \n\nI) \n\nA Display copy of the following case reports that are not\n\nshown on the attached document under \" Query RD Number\nStatuses\" \n\n2) \n\nA copy of AIRA' s ( AUTOMATED INCIDENT\n\nREPORTING APPLICATION[)]  User ManuaL11J\n\nLetter from\n\nto [ CPD]  FOIA Officer (January 10,  2018). \n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main_ Carbondale_  Illinois 62901 • ( 61R)  529- 6400 •  TTY• ( 6l Rl 529- 6407 •  Far (61R)  529- 6416\n\n\fMs.  Charise Valente\n\nMay 7,  2018\nPage 2\n\nIn reference to the first requested item, \n\nprovided CPD with a\n\nscreenshot of a \" Query RD Number Statuses\"  report\npertaining to a specific RD number. \nalso indicated in her request that she had\nattempted to access the AIRA manual via CPD' s website but was unsuccessful because a\n\nfrom a database,  which listed case statuses\n\nhyperlink to the manual was blocked to the public.  On January 12,  2018,  CPD requested\nclarification from\nregarding the first item of her request,  asking if she sought a copy\nof the case report associated with the RD number listed in the attached screenshot.  Later on that\n\nclarified that she had provided the first page of a \" computer preview\nsame date, \nscreen which has a total of 13 listings per page. i2 She stated that she sought the remaining\nlistings, around 43 listings total: \" If there are 13 listings per page there should be an addition[ al] \n\n3 or 4 pages that I' m looking for. i3 Later that day,  CPD responded: \" A screen capture of this\nnature is not something that is provided under the FOIA.  The FOIA provides records which are\ncreated from the activities of a public body.  A screen capture is not considered this type of\nrecord.  Therefore,  we cannot consider this a FOIA request. i4 With regard to the second item of\n\nthe request,  CPD asserted that it had already responded and referenced a CPD FOIA case\nnumber, \nresponded to CPD,  stating that she could not\naccess the AIRA user manual using the link that was provided in the referenced FOIA case\nnumber and reiterating that the provided link was blocked to the public.  On January 16,  2018, \nafter additional communications with\n\nregarding the website link, CPD informed\n\nThat same day, \n\nthat it was re -opening her FOIA request with regard to the second item of her request.  On\n\nJanuary 23,  2018,  CPD denied the portion of the request seeking a copy of the AIRA manual\npursuant to section 7( 1)( o)  of FOIA ( 5 ILCS 140/ 7( 1)( o) ( West 2016),  as amended by Public\nActs 100- 026,  effective August 4,  2017;  100- 201,  effective August 18,  2017). \n\nOn February 14,  2018,  this office received\n\nRequest for Review\n\ndisputing the denial of her request.  She stated that the requested AIRA user manual came out in\nJune of 2003 in the 14th District and that a CPD FOIA officer had directed her to a specific CPD\n\nwebpage where she could print the manual.  Yet,  she asserted that the site that she was directed\n\nto was blocked to the public.  She further stated that the first page of the screenshot that she had\n\nincluded in her request was provided to her husband in response to a separate FOIA request.  She\n\nstated that she sought the remaining listings. \n\nOn February 26,  2018,  this office forwarded a copy of the Request for Review to\nCPD and asked it to provide a copy of the AIRA user manual,  or a representative sample,  for this\noffice' s confidential review, together with a detailed explanation of the legal and factual basis for\n\n2E -mail\n\nfrom\n\n3E -mail\n\nfrom\n\nto Whom It May Concern ( January 12,  2018). \n\nto Whom It May Concern ( January 12,  2018). \n\nE- mail\n\nfrom CPD FOIA Intake to\n\nJanuary 12,  2018). \n\n\fMs.  Charise Valente\n\nMay 7,  2018\nPage 3\n\nthe asserted 7( 1)( o)  exemption.  This office also asked CPD to provide a detailed explanation of\n\nits response to the first item of Ms.  Ridley' s request,  addressing\nclaim that the\nscreenshot included in her request had been previously provided by CPD to her husband. \n\nHaving received no response from CPD,  this office sent additional\n\nletters to the\n\ndepartment on March 12,  2018,  and April 10,  2018,  again asking it to respond.  On April 11, \n2018,  CPD responded that it had sent a written response to this office on March 12,  2018;  CPD\n\nprovided this office with a copy of that response as well as a sample set of pages from the AIRA\nmanual\n\nIn its response,  CPD asserted that the database\n\nfor this office' s confidential\n\nreview. \n\ncaptured in the screenshot included preliminary information that was also exempt from\ndisclosure under section 7( 1)(\nActs 100- 026,  effective August 4,  2017;  100- 201,  effective August 18,  2017).  That same day, \nthis office forwarded a copy of the written response to\nIn an April 18,  2018, \ntelephone conversation with an Assistant Attorney General in the Public Access Bureau, \n\nf) of FOIA ( 5 ILCS 140/ 7( 1)( 0 (West 2016),  as amended by Public\n\nemphasized that she needed the requested items to assist her husband. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department ofPublic Health,  218 I11.  2d 390,  415 ( 2006).  A public body that withholds\na record \" has the burden of proving by clear and convincing evidence\" \nthat the record is exempt\nfrom disclosure.  5 ILCS 140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be\n\nnarrowly construed.  Lieber v. Board of Trustees of Southern Illinois University,  176 III.  2d 401, \n407 ( 1997). \n\nQuery RD Number Statuses\"  Display\n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of [that]  particular request.\"  Campbell v.  U.S. \n\nDepartment offustice,  164 F. 3d 20,  28 ( D. C.  Cir.  1998).  A public body is not required to\nanswer questions or create new records in response to a FOIA request.  Kenyon v.  Garrels,  184\n\nIll.  App.  3d 28,  32 ( 4th Dist.  1989).  However,  the contents of a database constitute \" public\nrecords\"  subject\nto disclosure under FOIA.  Hites v.  Waubonsee Cmty.  Coll.,  2016 IL App ( 2d) \n150836, ¶ 70,  56 N. E. 3d 1049.  1064 ( 2016),  appeal denied sub nom.  Hites v.  Waubon.see Cmty. \nColl., 65 N.E. 3d 840 ( 2016) ( concluding that \" data in [ a community college' s database] \nconstitutes public records under FOIA because such data is clearly 'recorded information * * * \npertaining to the transaction of public business * * * \nprepared by * * *  being used by * * *  or\nunder the control of [a]  public body.\"'). \n\n\fMs.  Charise Valente\n\nMay 7,  2018\nPage 4\n\nIn its response to this office,  CPD argued that the document\n\nthat\n\nprovided with regard to the first item of her request did not constitute a public record. \n\nSpecifically,  CPD claimed that the document \" is a screen capture of an internal CPD database, \nnot a public record. i5\n\nHowever,  CPS appears able to search that database and retrieve a listing of all\n\ncase reports or status updates that have been entered for a specified Case Report ID Number and\n\nRD number.  In contrast to a request that asks a public body to interpret or analyze case history\ninformation or otherwise create a record that did not previously exist,  a request that asks for all\ncase updates that have been entered into a database with respect to a particular case merely\nrequires a compilation of existing data. \nhas conveyed that she seeks a listing of all\ncase statuses that have been entered for a certain Case Report ID number and RD number with\n\nthe specification that the listing be provided based on a \" Query RD Number Statuses\"  search. \nThe screenshot\nprovided simply illustrates the underlying case status information she\nseeks;  CPD does not dispute that this data resides in its database.  A search and gathering of data\nalready present in a database does not constitute the creation of a new record,  even if the public\nbody must perform a computerized search and sorting of its database.  See Hites,  2016 IL App\n2d)  150836, ¶ 80,  56 N.E. 3d at 1066- 67 ( request for zip codes of students enrolled in certain\nclasses for certain years and other existing data requiring \" the application of [computer]  code or\nprogramming to retrieve stored information,  or to sort a database by particular data fields ( e. g., \nby zip code or ' raw input'  for a specific registration -form field),  does not create a new record.\"). \nBecause\nconcludes that CPD improperly responded that she did not seek copies of public records. \n\nrequest sought existing data maintained in CPD' s database,  this office\n\nSection 7( 1)( f) of FOIA\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure: \n\nPreliminary drafts,  notes,  recommendations,  memoranda\nand other records in which opinions are expressed,  or policies or\n\nactions are formulated,  except that a specific record or relevant\n\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. \n\nThe section 7( 1)( f) exemption applies to \" inter- and intra -agency predecisional\n\nand deliberative material.\"  Harwood v.  McDonough,  344 Ill.  App.  3d 242,  247 ( 1st Dist.  2003). \nThe exemption is \" intended to protect the communications process and encourage frank and open\n\n5Letter from Sarah Bown,  Freedom of Information Act Officer,  Chicago Police Department, \n\nOffice of Legal Affairs,  Unit 114,  to Teresa Lim,  Assistant Attorney General,  Office of Attorney General,  Public\nAccess Bureau ( March 12,  2018). \n\n\fMs.  Charise Valente\n\nMay 7,  2018\nPage 5\n\nthat reflect the give and take of the deliberative process may be\n\ndiscussion among agency employees before a final decision is made.\"  Harwood,  344 Ill. App. \n3d at 248.  Section 7( 1)( f) does not exempt from disclosure purely factual material.  See Ill. Att'y\nGen. Pub.  Acc.  Op. No.  13- 015,  issued September 24,  2013,  at 7.  Rather, \"[ o] nly those portions\nof a predecisional document\nwithheld.\"  Kalven v.  City of Chicago,  2014 IL App ( 1st)  121846, ¶ 24,  7 N.E. 3d 741,  748 ( 2014) \nquoting Public Citizen,  Inc.  v.  Office of Management &  Budget,  598 F. 3d 865,  876 ( D. C.  Cir. \n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency' s\ndecision-making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.\"  Chemical Weapons Working\nGroup v.  U.S.  E.P.A.,  185 F. R. D.  1,  3 ( D. D. C.  1999) ( quoting Dudman Communications v. \nDepartment of the Air Force,  815 F. 2d 1565,  1568 ( D. C.  Cir.  1987)). \n\nIn its response to this office,  CPD contended that the database in question\n\ncontained preliminary information that is exempt from disclosure under section 7( 1)(\nf).  This\noffice has reviewed the information contained in the computer display at issue and determined\nthat the information does not reflect the give-and- take deliberations of CPD as it investigated a\n\nmatter.  Rather, the entries reflect factual information about case statuses that have been entered, \n\nsuch as the name of the CPD personnel who entered the update and when the status entry was\nit did not explain the role\ncreated.  While CPD asserted that the information was \" preliminary,\" \nthat the information played in any deliberative process.  Accordingly, this office concludes that\nCPD has not demonstrated by clear and convincing evidence that the responsive case history\ninformation is exempt from disclosure pursuant to section 7( 1)( f). This office requests that CPD\n\nprovide\nnumber based on a \" Query RD Number Statuses\"  search. \n\nwith a printout of all case history information entered for the specified RD\n\nSection 7( 1)( o)  of FOIA\n\nSection 7( 1)( o)  exempts from disclosure: \n\nAdministrative or technical\n\ninformation associated with\n\nautomated data processing operations,  including but not\nlimited to software,  operating protocols,  computer program\nabstracts,  file layouts,  source listings,  object modules,  load\n\nmodules,  user guides,  documentation pertaining to all logical and\nphysical design of computerized systems,  employee manuals,  and\n\nany other information that,  if disclosed,  would jeopardize the\nsecurity of the system or its data or the security of materials\nexempt under this Section. ( Emphasis added.) \n\n\fMs.  Charise Valente\n\nMay 7,  2018\nPage 6\n\nWith regard to the second item of\n\nrequest,  CPD stated that it had\n\nconsulted with its Information Services Division and determined that disclosure of the requested\n\nAIRA manual would cause a security breach of its Criminal History Records Information System\nCHRIS).  Specifically,  CPD contended that release of the manual would reveal\nthe \" schema\"  or\ninternal structure of the database.  CPD asserted,  in pertinent part: \n\nThe court system accepts CPD reports as authentic because they\ncannot be modified without record;  any changes are logged and the\noperator /  creator of those changes noted in a way so that the entire\nreport can be verified at all stages. \n\nAllowing knowledge of the schema through a complete\n\ndisclosure of the database structure outside the department could\n\nallow the database integrity constraints to be circumvented.  With\nsuch knowledge the possibility exists that the data tables could be\naltered.  If the tables were ever altered the court would have no\n\ninto question any report generated by the system. \n\nchoice but to call\nUltimately,  the court could find our electronic reports unreliable\nand not accept them any longer. 161\n\nThis office has reviewed a sampling of the AIRA manual and confirmed that the\n\nmanual is a user guide on how to use the AIRA system.  The manual contains technical\n\ninformation about the various components of the AIRA system as well as detailed instructions on\n\nhow to enter reports or make changes to information that is already in the system.  This office\nhas determined that disclosure of such specific information about AIRA' s structure and functions\n\nwould jeopardize the security of the system.  In her Request for Review, \nCPD had initially provided her with a link to an online posting of the manual.  However,  as\n\nasserted that\n\nstated,  the link to the manual was not accessible to the public.  While it appears that CPD\nmistakenly referred her to the online link, the available information indicates that only authorized\nCPD personnel are permitted access to the manual.  Because disclosure of the technical and\n\nadministrative information contained in the AIRA manual would potentially compromise the\nsecurity of the AIRA system,  this office concludes that the AIRA manual\ndisclosure under section 7( 1)( o)  of FOIA. \n\nis exempt\n\nfrom\n\n6Letter from Sarah Bown,  Freedom of Information Act Officer,  Chicago Police Department, \nOffice of Legal Affairs,  to Teresa Lim,  Assistant Attorney General,  Office of Attorney General,  Public Access\nBureau ( March 12,  2018). \n\n\fMs.  Charise Valente\n\nMay 7,  2018\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n51718 f 3d response incomplete 71f improper 710 proper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police case reports and an internal software manual","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-51718/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMay 7, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Charise Valente\n\nGeneral Counsel\n\nChicago Police Department\n\n3510 South Michigan Avenue\n\nChicago, Illinois 60653\n\npacola@chicagopolice. org\n\nRE: FOIA Request for Review — 2018 PAC 51718; CPD No. \n\nDear\n\nand Ms. Valente: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) improperly\nresponded to the first item of\nimproperly deny the second item. \n\nJanuary 10, 2018, FOIA request, but did not\n\nOn that date, \n\nsubmitted a FOIA request to CPD seeking the following: \n\nI) \n\nA Display copy of the following case reports that are not\n\nshown on the attached document under \" Query RD Number\nStatuses\" \n\n2) \n\nA copy of AIRA's (AUTOMATED INCIDENT\n\nREPORTING APPLICATION[)] User ManuaL11J\n\nLetter from\n\nto [ CPD] FOIA Officer (January 10, 2018). \n\nIn reference to the first requested item, \n\nprovided CPD with a\n\nscreenshot of a \" Query RD Number Statuses\" report\npertaining to a specific RD number. \nalso indicated in her request that she had\nattempted to access the AIRA manual via CPD's website but was unsuccessful because a\n\nfrom a database, which listed case statuses\n\nhyperlink to the manual was blocked to the public. On January 12, 2018, CPD requested\nclarification from\nregarding the first item of her request, asking if she sought a copy\nof the case report associated with the RD number listed in the attached screenshot. Later on that\n\nclarified that she had provided the first page of a \" computer preview\nsame date, \nscreen which has a total of 13 listings per page. i2 She stated that she sought the remaining\nlistings, around 43 listings total: \" If there are 13 listings per page there should be an addition[ al] \n\n3 or 4 pages that I' m looking for. i3 Later that day, CPD responded: \" A screen capture of this\nnature is not something that is provided under the FOIA. The FOIA provides records which are\ncreated from the activities of a public body. A screen capture is not considered this type of\nrecord. Therefore, we cannot consider this a FOIA request. i4 With regard to the second item of\n\nthe request, CPD asserted that it had already responded and referenced a CPD FOIA case\nnumber, \nresponded to CPD, stating that she could not\naccess the AIRA user manual using the link that was provided in the referenced FOIA case\nnumber and reiterating that the provided link was blocked to the public. On January 16, 2018, \nafter additional communications with\n\nregarding the website link, CPD informed\n\nThat same day, \n\nthat it was re -opening her FOIA request with regard to the second item of her request. On\n\nJanuary 23, 2018, CPD denied the portion of the request seeking a copy of the AIRA manual\npursuant to section 7(1)(o) of FOIA (5 ILCS 140/ 7(1)(o) (West 2016), as amended by Public\nActs 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). \n\nOn February 14, 2018, this office received\n\nRequest for Review\n\ndisputing the denial of her request. She stated that the requested AIRA user manual came out in\nJune of 2003 in the 14th District and that a CPD FOIA officer had directed her to a specific CPD\n\nwebpage where she could print the manual. Yet, she asserted that the site that she was directed\n\nto was blocked to the public. She further stated that the first page of the screenshot that she had\n\nincluded in her request was provided to her husband in response to a separate FOIA request. She\n\nstated that she sought the remaining listings. \n\nOn February 26, 2018, this office forwarded a copy of the Request for Review to\nCPD and asked it to provide a copy of the AIRA user manual, or a representative sample, for this\noffice's confidential review, together with a detailed explanation of the legal and factual basis for\n\n2E -mail\n\nfrom\n\n3E -mail\n\nfrom\n\nthe asserted 7(1)(o) exemption. This office also asked CPD to provide a detailed explanation of\n\nits response to the first item of Ms. Ridley's request, addressing\nclaim that the\nscreenshot included in her request had been previously provided by CPD to her husband. \n\nHaving received no response from CPD, this office sent additional\n\nletters to the\n\ndepartment on March 12, 2018, and April 10, 2018, again asking it to respond. On April 11, \n2018, CPD responded that it had sent a written response to this office on March 12, 2018; CPD\n\nprovided this office with a copy of that response as well as a sample set of pages from the AIRA\nmanual\n\nIn its response, CPD asserted that the database\n\nfor this office's confidential\n\nreview. \n\ncaptured in the screenshot included preliminary information that was also exempt from\ndisclosure under section 7(1)(Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). That same day, \nthis office forwarded a copy of the written response to\nIn an April 18, 2018, \ntelephone conversation with an Assistant Attorney General in the Public Access Bureau, \n\nf) of FOIA (5 ILCS 140/ 7(1)(0 (West 2016), as amended by Public\n\nemphasized that she needed the requested items to assist her husband. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 I11. 2d 390, 415 (2006). A public body that withholds\na record \" has the burden of proving by clear and convincing evidence\" \nthat the record is exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 (West 2016). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 III. 2d 401, \n407 (1997). \n\nQuery RD Number Statuses\" Display\n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of [that] particular request.\" Campbell v. U.S. \n\nDepartment offustice, 164 F. 3d 20, 28 (D. C. Cir. 1998). A public body is not required to\nanswer questions or create new records in response to a FOIA request. Kenyon v. Garrels, 184\n\nIll. App. 3d 28, 32 (4th Dist. 1989). However, the contents of a database constitute \" public\nrecords\" subject\nto disclosure under FOIA. Hites v. Waubonsee Cmty. Coll., 2016 IL App (2d) \n150836, ¶ 70, 56 N. E. 3d 1049. 1064 (2016), appeal denied sub nom. Hites v. Waubon.see Cmty. \nColl., 65 N.E. 3d 840 (2016) (concluding that \" data in [ a community college's database] \nconstitutes public records under FOIA because such data is clearly 'recorded information * * * \n\nIn its response to this office, CPD argued that the document\n\nthat\n\nprovided with regard to the first item of her request did not constitute a public record. \n\nSpecifically, CPD claimed that the document \" is a screen capture of an internal CPD database, \nnot a public record. i5\n\nHowever, CPS appears able to search that database and retrieve a listing of all\n\ncase reports or status updates that have been entered for a specified Case Report ID Number and\n\nRD number. In contrast to a request that asks a public body to interpret or analyze case history\ninformation or otherwise create a record that did not previously exist, a request that asks for all\ncase updates that have been entered into a database with respect to a particular case merely\nrequires a compilation of existing data. \nhas conveyed that she seeks a listing of all\ncase statuses that have been entered for a certain Case Report ID number and RD number with\n\nthe specification that the listing be provided based on a \" Query RD Number Statuses\" search. \nThe screenshot\nprovided simply illustrates the underlying case status information she\nseeks; CPD does not dispute that this data resides in its database. A search and gathering of data\nalready present in a database does not constitute the creation of a new record, even if the public\nbody must perform a computerized search and sorting of its database. See Hites, 2016 IL App\n2d) 150836, ¶ 80, 56 N.E. 3d at 1066- 67 (request for zip codes of students enrolled in certain\nclasses for certain years and other existing data requiring \" the application of [computer] code or\nprogramming to retrieve stored information, or to sort a database by particular data fields (e. g., \nby zip code or ' raw input' for a specific registration -form field), does not create a new record.\"). \nBecause\nconcludes that CPD improperly responded that she did not seek copies of public records. \n\nrequest sought existing data maintained in CPD's database, this office\n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure: \n\nPreliminary drafts, notes, recommendations, memoranda\nand other records in which opinions are expressed, or policies or\n\nactions are formulated, except that a specific record or relevant\n\nportion of a record shall not be exempt when the record is publicly\ncited and identified by the head of the public body. \n\nThe section 7(1)(f) exemption applies to \" inter- and intra -agency predecisional\n\nand deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). \nThe exemption is \" intended to protect the communications process and encourage frank and open\n\n5 Letter from Sarah Bown, Freedom of Information Act Officer, Chicago Police Department, \n\nOffice of Legal Affairs, Unit 114, to Teresa Lim, Assistant Attorney General, Office of Attorney General, Public\n\nthat reflect the give and take of the deliberative process may be\n\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. Section 7(1)(f) does not exempt from disclosure purely factual material. See Ill. Att'y\nGen. Pub. Acc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, \"[ o] nly those portions\nof a predecisional document\nwithheld.\" Kalven v. City of Chicago, 2014 IL App (1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 (2014) \nquoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 (D. C. Cir. \n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency's\ndecision-making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency's ability to perform its functions.\" Chemical Weapons Working\nGroup v. U.S. E.P.A., 185 F. R. D. 1, 3 (D. D. C. 1999) (quoting Dudman Communications v. \nDepartment of the Air Force, 815 F. 2d 1565, 1568 (D. C. Cir. 1987)). \n\nIn its response to this office, CPD contended that the database in question\n\ncontained preliminary information that is exempt from disclosure under section 7(1)(f). This\noffice has reviewed the information contained in the computer display at issue and determined\nthat the information does not reflect the give-and- take deliberations of CPD as it investigated a\n\nmatter. Rather, the entries reflect factual information about case statuses that have been entered, \n\nsuch as the name of the CPD personnel who entered the update and when the status entry was\nit did not explain the role\ncreated. While CPD asserted that the information was \" preliminary,\" \nthat the information played in any deliberative process. Accordingly, this office concludes that\nCPD has not demonstrated by clear and convincing evidence that the responsive case history\ninformation is exempt from disclosure pursuant to section 7(1)(f). This office requests that CPD\n\nprovide\nnumber based on a \" Query RD Number Statuses\" search. \n\nwith a printout of all case history information entered for the specified RD\n\nSection 7(1)(o) of FOIA\n\nSection 7(1)(o) exempts from disclosure: \n\nAdministrative or technical\n\ninformation associated with\n\nautomated data processing operations, including but not\nlimited to software, operating protocols, computer program\nabstracts, file layouts, source listings, object modules, load\n\nWith regard to the second item of\n\nrequest, CPD stated that it had\n\nconsulted with its Information Services Division and determined that disclosure of the requested\n\nAIRA manual would cause a security breach of its Criminal History Records Information System\nCHRIS). Specifically, CPD contended that release of the manual would reveal\nthe \" schema\" or\ninternal structure of the database. CPD asserted, in pertinent part: \n\nThe court system accepts CPD reports as authentic because they\ncannot be modified without record; any changes are logged and the\noperator / creator of those changes noted in a way so that the entire\nreport can be verified at all stages. \n\nAllowing knowledge of the schema through a complete\n\ndisclosure of the database structure outside the department could\n\nallow the database integrity constraints to be circumvented. With\nsuch knowledge the possibility exists that the data tables could be\naltered. If the tables were ever altered the court would have no\n\ninto question any report generated by the system. \n\nchoice but to call\nUltimately, the court could find our electronic reports unreliable\nand not accept them any longer. 161\n\nThis office has reviewed a sampling of the AIRA manual and confirmed that the\n\nmanual is a user guide on how to use the AIRA system. The manual contains technical\n\ninformation about the various components of the AIRA system as well as detailed instructions on\n\nhow to enter reports or make changes to information that is already in the system. This office\nhas determined that disclosure of such specific information about AIRA's structure and functions\n\nwould jeopardize the security of the system. In her Request for Review, \nCPD had initially provided her with a link to an online posting of the manual. However, as\n\nasserted that\n\nstated, the link to the manual was not accessible to the public. While it appears that CPD\nmistakenly referred her to the online link, the available information indicates that only authorized\nCPD personnel are permitted access to the manual. Because disclosure of the technical and\n\nadministrative information contained in the AIRA manual would potentially compromise the\nsecurity of the AIRA system, this office concludes that the AIRA manual\ndisclosure under section 7(1)(o) of FOIA. \n\nis exempt\n\nfrom\n\n6 Letter from Sarah Bown, Freedom of Information Act Officer, Chicago Police Department, \nOffice of Legal Affairs, to Teresa Lim, Assistant Attorney General, Office of Attorney General, Public Access\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n51718 f 3d response incomplete 71f improper 710 proper pd"}
{"id":905,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-03-29","case_number":null,"request_numbers":["51776"],"title":"Chicago Mayor's Office properly withheld Amazon HQ2 bid under 7(1)(h)","filename":"51776, issued March 29, 2018.pdf","rel_path":null,"word_count":1776,"summary":"Reporters requested the City of Chicago's bid proposal for Amazon's second headquarters, which the Mayor's Office denied. The PAC determined the denial was proper because the records were exempt under FOIA section 7(1)(h) as the final selection had not yet been made.","plain_summary":"Reporters asked the City of Chicago for its bid proposal to host Amazon's second headquarters. The City refused to release the document, and the Attorney General's office agreed, stating that state law allows public bodies to keep such bids secret until a final decision is reached by the company. This means the public does not have a right to see competitive bid proposals while the selection process is still ongoing.","holding":"The Mayor's Office did not violate FOIA by denying the request for the Amazon bid proposal because the records were exempt from disclosure under section 7(1)(h) until a final selection is made.","legal_question":"Whether the City of Chicago properly withheld its Amazon HQ2 bid proposal under the FOIA exemption for bids and proposals prior to a final selection.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(h)"],"public_body":"Office of the Mayor of the City of Chicago","requesting_party":"Ms. Sophia Tareen & Mr. John O' Connor (Associated Press)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(h)","subject_description":"The request sought the City of Chicago's bid proposal submitted to Amazon for its second headquarters.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_h/51776%2C%20issued%20March%2029%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Amazon","bid proposal","economic development","exemption 7(1)(h)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 29,  2018\n\nVia electronic mail\n\nMs.  Sophia Tareen &  Mr.  John O' Connor\n\nReporters,  Associated Press\n\n440 South LaSalle,  Suite 1000\n\n[street address redacted for site publication -- see original PDF]\nstareen@ap. org &  joconnor@ap. org\n\nVia electronic mail\n\nMs.  Tia Mathew\n\nAssistant Corporation Counsel\n\nCity of Chicago Department of Law\n30 North LaSalle Street,  Suite 1720\n\nChicago,  Illinois 60602\n\ntia. mathew@cityofchicago. org\n\nRE:  FOIA Request for Review — 2018 PAC 51776\n\nDear Ms.  Tareen,  Mr. O' Connor,  and Ms.  Mathew: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the Office of the Mayor of the City of Chicago ( Mayor' s\nOffice)  did not violate FOIA by denying a FOIA request submitted by Ms.  Sophia Tareen and\nMr. John O' Connor. \n\nOn February 8,  2018,  Ms.  Tareen and Mr. O' Connor submitted a FOIA request\n\nto\n\nthe Mayor' s Office seeking: \n\nC] opies of the following covering Sept.  1 to Nov.  1 [:] \n\nThe application made on behalf of Chicago and its suburbs\n\nto Amazon connected to the Request for Proposals issued by the\nfor a second headquarters.  Please include\ncompany in September\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: (877)  844- 5461 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • (\n\n312)  814- 3000 •  TTY: ( 800)  964- 3013 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois\n\n62901 • (\n\n618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Sophia Tareen &  Mr. John O' Connor\n\nMs.  Tia Mathew\n\nMarch 29,  2018\n\nPage 2\n\nall cover letters;  videos,  attachments,  and other files included along\nwith this application[ 11\n\nOn February 16,  2018,  the Mayor' s Office denied the request as a repeated request\n\npursuant to section 3( g)  of FOIA (5 ILCS 140/ 3( g) ( West 2016)),  arguing that it had previously\nproperly denied the request under section 7( 1)( h)  of FOIA ( 5 ILCS 140/ 7( 1)( h) ( West 2016),  as\namended by Public Acts 100- 026,  effedtive August 4,  2017;  100- 201,  effective August 18, \nfor Review\n2017).  On that same date,  Ms.  Tareen and Mr.  O' Connor submitted this Request\n\ncontesting the Mayor' s Office's denial. \n\nOn February 21,  2018,  this office sent a copy of the Request for Review to the\n\nMayor' s Office and asked it to provide this office with unredacted copies of the responsive\n\nrecords for this office' s confidential review, together with a detailed explanation for the assertion\n\nthat the Mayor' s Office had previously properly denied the same request under section 7( 1)( h). \nOn March 2,  2018,  the Mayor's Office provided a written response but no records for this office' s\n\nreview.  Ms.  Tareen and Mr.  O' Connor did not submit a reply. \n\nDISCUSSION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016).  A public body\nhas the burden of proving by clear and convincing evidence\"  that any records it withholds are\nexempt from disclosure.  5 ILCS 140/ 1. 2 ( West 2016).  The Act' s exceptions to disclosure \" are to\n\nbe read narrowly.\"  Lieber v.  Board of Trustees of Southern Illinois University,  176 I11.  2d 401, \n407 ( 1997). \n\nSection 3( g)  of FOIA permits a public body to deny as unduly burdensome\n\nrepeated requests from the same person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act[.]\"  Because the Mayor's Office\npreviously denied a request from Ms.  Tareen and Mr. O' Connor for the same records,  it is\nnecessary to analyze whether that previous denial was proper in order to determine whether the\nrequest at issue here was an unduly burdensome repeated request. \n\nSection 7( 1)( h)  of FOIA exempts from disclosure: \n\nOffice of the Mayor ( February 8,  2018). \n\nFOIA request\n\nfrom Sophia Tareen &  John O' Connor,  The Associated Press,  to FOIA Officer, \n\n\fMs.  Sophia Tareen &  Mr. John O' Connor\n\nMs.  Tia Mathew\n\nMarch 29,  2018\n\nPage 3\n\nProposals and bids for any contract,  grant,  or agreement, \nincluding information which if it were disclosed would frustrate\nprocurement or give an advantage to any person proposing to enter\ninto a contractor agreement with the body,  until an award or final\nselection is made.  Information prepared by or for the body in\npreparation of a bid solicitation shall be exempt until an award or\n\nfinal selection is made. \n\nThere are no published cases in which an Illinois reviewing court has construed the scope of\nsection 7( 1)( h). \n\nIn its response to this office,  the Mayor's Office argued: \n\nThe language provided in Section 7( 1)( h)  clearly delineates\nthat proposals and bids are exempt until an award or final selection\n\nis made.  In this instance,  the requester seeks the bid and proposal\n\nrecords that the City submitted to Amazon.  Because a final\nselection has not been made by Amazon,  the records fit squarely\nwithin the ekemption provided in Section 7( 1)( h). t21\n\nThe Mayor' s Office acknowledged that section 7( 1)( h)  contains a clause referring to procurement\nand contractor agreements,  but claimed that \"[ t] he word ' including' connotes that what is listed\nafter this word is a part of a larger group that is exempt.\" 3\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly.  DeLuna v.  Burciaga,  223 Ill. 2d 49,  59\n2006). \" The most reliable indicator of legislative intent\nand ordinary meaning.\"  Gaffney v.  Board of Trustees of Orland Fire Protection District,  2012\nIL 110012, ¶ 56,  969 N.E. 2d 359,  372 ( 2012).  A statute must be read \" as a whole, construing\nwords and phrases in light of other relevant statutory provisions and not in isolation.\"  People• v. \nSmith,  2016 IL 119659, ¶ 27,  76 N. E. 3d 1251,  1258 ( 2016). \" When the statutory language is\nclear and unambiguous,  it should be applied as written without resort to extrinsic aids or tools of\ninterpretation.\"  Poris v. Lake Holiday Property Owners Ass' n,  2013 IL 113907, ¶ 47,  983 N. E. 2d\n993,  1004 ( 2013).  If statutory language is ambiguous or unclear, a reviewing body may look\n\nis the statutory language,  given its plain\n\nJoshua Jones,  Deputy Bureau Chief, Office of the Illinois Attorney General ( March 2,  2018),  at 2. \n\n2Letter from Tia Mathew,  Assistant Corporation Counsel,  City of Chicago Department of Law,  to\n\nJoshua Jones,  Deputy Bureau Chief,  Office of the Illinois Attorney General ( March 2,  2018),  at 2. \n\n3Letter from Tia Mathew,  Assistant Corporation Counsel,  City of Chicago Department of Law, to\n\n\fMs.  Sophia Tareen &  Mr.  John O' Connor\n\nMs.  Tia Mathew\n\nMarch 29,  2018\n\nPage 4\n\nbeyond the act' s language to construe its meaning.  Nowak v.  City of Country Club Hills, 2011 IL\n111838, ¶ 11,  958 N. E. 2d 1021,  1023 ( 2011). \n\nThe middle clause of the first sentence of section 7( 1)( h) —\" including\n\ninto a contractor agreement with the body\"— could possibly be\n\ninformation which if it were disclosed would frustrate procurement or give an advantage to any\nperson proposing to enter\ninterpreted as signaling that the exemption applies only to instances in which a public body\nsolicits bids or proposals,  rather than including instances in which a public body submits bids or\nproposals.  However,  courts have interpreted \" the word ' including',  in its most commonly\nunderstood meaning,  to be a term of enlargement,  not of limitation.\"  Paxson v.  Board of\nEducation of School District No. 87, 276 III.  App.  3d 912,  920 ( 1st Dist.  1995).  The General\nAssembly' s use of the word \" including\"  rather than a limiting term such as \" only\"  indicates that\nbids or proposals solicited by public bodies are not the only types of bids or proposals that\nsection 7( 1)( h)  is intended to encompass.  This interpretation is consistent with the meaning of\nsection 7( 1)( h)  when it is read as a whole,  as well.  The beginning portion of section 7( 1)( h), \n\np] roposals and bids for any contract,  grant,  or agreement\" ( emphasis added),  plainly includes\nall proposals and bids.  The last sentence of section 7( 1)( h)  provides that \"[ i] nformation prepared\nby or for the body in preparation of a bid solicitation shall be exempt until an award or final\nselection is made\" ( emphasis added),  thus including proposals and bids both submitted by a body\nand submitted to a body within the exemption. \n\nAbsent case law or legislative history restricting the scope of section 7( 1)( h)  to\nproposals or bids submitted to a public body,  the Public Access Bureau has determined that the\nexemption applies to bids or proposals submitted by a public body.  See Ill. Att' y Gen.  PAC Req. \nRev.  Ltr. 28257,  issued February 21,  2017,  at 3 ( sheriff' s office did not violate FOIA by\nwithholding materials prepared in preparation for a bid for a new contract with the U. S.  Marshals\nService). \n\nIn this matter,  the request sought\n\nthe City of Chicago' s bid for Amazon' s second\n\nheadquarters,  and it is undisputed that Amazon had not yet made a final selection.  Because\nsection 7( 1)( h)  exempts from disclosure bids and proposals until a final selection is made,  and\n\nbecause this office lacks a sufficient basis to conclude that section 7( 1)( h)  is limited to bids and\n\nproposals submitted to a public body,  the Public Access Bureau has determined that the Mayor' s\nOffice' s denial of Ms.  Tareen' s and Mr. O' Connor' s previous request for the same records did not\n\nviolate FOIA.  Therefore,  the Mayor' s Office did not improperly deny their February 8,  2018, \nrequest as an unduly burdensome repeated request. \n\n\fs. Sophia Tareen &  Mr. John O' Connor\n\nMs.  Tia Mathew\n\nMarch 29,  2018\n\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  Should\nyou have questions,  please contact me at ( 312)  814- 8413 or jjones@atg. state. il.us. \n\nVery truly yours, \n\nJOSHUA M.  JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n51776 f 71h proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city's bid proposal for a corporate headquarters","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-51776/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nMarch 29, 2018\n\nVia electronic mail\n\nMs. Sophia Tareen & Mr. John O' Connor\n\nReporters, Associated Press\n\n440 South LaSalle, Suite 1000\n\n[street address redacted for site publication -- see original PDF]\nstareen@ap. org & joconnor@ap. org\n\nVia electronic mail\n\nMs. Tia Mathew\n\nAssistant Corporation Counsel\n\nCity of Chicago Department of Law\n30 North LaSalle Street, Suite 1720\n\nChicago, Illinois 60602\n\ntia. mathew@cityofchicago. org\n\nRE: FOIA Request for Review — 2018 PAC 51776\n\nDear Ms. Tareen, Mr. O' Connor, and Ms. Mathew: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Office of the Mayor of the City of Chicago (Mayor's\nOffice) did not violate FOIA by denying a FOIA request submitted by Ms. Sophia Tareen and\nMr. John O' Connor. \n\nOn February 8, 2018, Ms. Tareen and Mr. O' Connor submitted a FOIA request\n\nto\n\nthe Mayor's Office seeking: \n\nC] opies of the following covering Sept. 1 to Nov. 1 [:] \n\nThe application made on behalf of Chicago and its suburbs\n\nto Amazon connected to the Request for Proposals issued by the\nfor a second headquarters. Please include\ncompany in September\n\nall cover letters; videos, attachments, and other files included along\nwith this application[ 11\n\nOn February 16, 2018, the Mayor's Office denied the request as a repeated request\n\npursuant to section 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2016)), arguing that it had previously\nproperly denied the request under section 7(1)(h) of FOIA (5 ILCS 140/ 7(1)(h) (West 2016), as\namended by Public Acts 100- 026, effedtive August 4, 2017; 100- 201, effective August 18, \nfor Review\n2017). On that same date, Ms. Tareen and Mr. O' Connor submitted this Request\n\ncontesting the Mayor's Office's denial. \n\nOn February 21, 2018, this office sent a copy of the Request for Review to the\n\nMayor's Office and asked it to provide this office with unredacted copies of the responsive\n\nrecords for this office's confidential review, together with a detailed explanation for the assertion\n\nthat the Mayor's Office had previously properly denied the same request under section 7(1)(h). \nOn March 2, 2018, the Mayor's Office provided a written response but no records for this office's\n\nreview. Ms. Tareen and Mr. O' Connor did not submit a reply. \n\nDISCUSSION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016). A public body\nhas the burden of proving by clear and convincing evidence\" that any records it withholds are\nexempt from disclosure. 5 ILCS 140/ 1. 2 (West 2016). The Act's exceptions to disclosure \" are to\n\nbe read narrowly.\" Lieber v. Board of Trustees of Southern Illinois University, 176 I11. 2d 401, \n407 (1997). \n\nSection 3(g) of FOIA permits a public body to deny as unduly burdensome\n\nrepeated requests from the same person for the same records that are unchanged or identical to\nrecords previously provided or properly denied under this Act[.]\" Because the Mayor's Office\npreviously denied a request from Ms. Tareen and Mr. O' Connor for the same records, it is\nnecessary to analyze whether that previous denial was proper in order to determine whether the\nrequest at issue here was an unduly burdensome repeated request. \n\nProposals and bids for any contract, grant, or agreement, \nincluding information which if it were disclosed would frustrate\nprocurement or give an advantage to any person proposing to enter\ninto a contractor agreement with the body, until an award or final\nselection is made. Information prepared by or for the body in\npreparation of a bid solicitation shall be exempt until an award or\n\nfinal selection is made. \n\nThere are no published cases in which an Illinois reviewing court has construed the scope of\nsection 7(1)(h). \n\nIn its response to this office, the Mayor's Office argued: \n\nThe language provided in Section 7(1)(h) clearly delineates\nthat proposals and bids are exempt until an award or final selection\n\nis made. In this instance, the requester seeks the bid and proposal\n\nrecords that the City submitted to Amazon. Because a final\nselection has not been made by Amazon, the records fit squarely\nwithin the ekemption provided in Section 7(1)(h). t21\n\nThe Mayor's Office acknowledged that section 7(1)(h) contains a clause referring to procurement\nand contractor agreements, but claimed that \"[ t] he word ' including' connotes that what is listed\nafter this word is a part of a larger group that is exempt.\" 3\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E. 2d 359, 372 (2012). A statute must be read \" as a whole, construing\nwords and phrases in light of other relevant statutory provisions and not in isolation.\" People• v. \nSmith, 2016 IL 119659, ¶ 27, 76 N. E. 3d 1251, 1258 (2016). \" When the statutory language is\nclear and unambiguous, it should be applied as written without resort to extrinsic aids or tools of\ninterpretation.\" Poris v. Lake Holiday Property Owners Ass' n, 2013 IL 113907, ¶ 47, 983 N. E. 2d\n993, 1004 (2013). If statutory language is ambiguous or unclear, a reviewing body may look\n\nis the statutory language, given its plain\n\nJoshua Jones, Deputy Bureau Chief, Office of the Illinois Attorney General (March 2, 2018), at 2. \n\n2 Letter from Tia Mathew, Assistant Corporation Counsel, City of Chicago Department of Law, to\n\nJoshua Jones, Deputy Bureau Chief, Office of the Illinois Attorney General (March 2, 2018), at 2. \n\n3 Letter from Tia Mathew, Assistant Corporation Counsel, City of Chicago Department of Law, to\n\nbeyond the act's language to construe its meaning. Nowak v. City of Country Club Hills, 2011 IL\n111838, ¶ 11, 958 N. E. 2d 1021, 1023 (2011). \n\nThe middle clause of the first sentence of section 7(1)(h) —\" including\n\ninto a contractor agreement with the body\"— could possibly be\n\ninformation which if it were disclosed would frustrate procurement or give an advantage to any\nperson proposing to enter\ninterpreted as signaling that the exemption applies only to instances in which a public body\nsolicits bids or proposals, rather than including instances in which a public body submits bids or\nproposals. However, courts have interpreted \" the word ' including', in its most commonly\nunderstood meaning, to be a term of enlargement, not of limitation.\" Paxson v. Board of\nEducation of School District No. 87, 276 III. App. 3d 912, 920 (1st Dist. 1995). The General\nAssembly's use of the word \" including\" rather than a limiting term such as \" only\" indicates that\nbids or proposals solicited by public bodies are not the only types of bids or proposals that\nsection 7(1)(h) is intended to encompass. This interpretation is consistent with the meaning of\nsection 7(1)(h) when it is read as a whole, as well. The beginning portion of section 7(1)(h), \n\np] roposals and bids for any contract, grant, or agreement\" (emphasis added), plainly includes\nall proposals and bids. The last sentence of section 7(1)(h) provides that \"[ i] nformation prepared\nby or for the body in preparation of a bid solicitation shall be exempt until an award or final\nselection is made\" (emphasis added), thus including proposals and bids both submitted by a body\nand submitted to a body within the exemption. \n\nAbsent case law or legislative history restricting the scope of section 7(1)(h) to\nproposals or bids submitted to a public body, the Public Access Bureau has determined that the\nexemption applies to bids or proposals submitted by a public body. See Ill. Att' y Gen. PAC Req. \nRev. Ltr. 28257, issued February 21, 2017, at 3 (sheriff's office did not violate FOIA by\nwithholding materials prepared in preparation for a bid for a new contract with the U. S. Marshals\nService). \n\nIn this matter, the request sought\n\nthe City of Chicago's bid for Amazon's second\n\nheadquarters, and it is undisputed that Amazon had not yet made a final selection. Because\nsection 7(1)(h) exempts from disclosure bids and proposals until a final selection is made, and\n\nbecause this office lacks a sufficient basis to conclude that section 7(1)(h) is limited to bids and\n\nproposals submitted to a public body, the Public Access Bureau has determined that the Mayor's\nOffice's denial of Ms. Tareen's and Mr. O' Connor's previous request for the same records did not\n\nviolate FOIA. Therefore, the Mayor's Office did not improperly deny their February 8, 2018, \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. Should\nyou have questions, please contact me at (312) 814- 8413 or jjones@atg. state. il.us. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n51776 f 71h proper mun"}
{"id":906,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-17","case_number":null,"request_numbers":["51910"],"title":"Chicago Police Department improperly redacted burglary case records under FOIA exemptions","filename":"51910, issued April 17, 2018.pdf","rel_path":null,"word_count":2372,"summary":"The Chicago Police Department redacted records related to a 2007-2008 burglary, and the PAC determined that some of these redactions were improper while others were justified.","plain_summary":"The requester sought police reports concerning an old break-in, which the department produced with extensive redactions under FOIA's private-information, personal-privacy, and law-enforcement-source exemptions. The PAC determined that redactions of individuals' private identifying information, a partial license plate, victim and uninvolved-party identities, and information that would reveal confidential sources were proper, but that redactions of business contact information, ages, uninvolved business names, and general descriptions of the police response and the crime were not. The department was directed to release the improperly redacted portions.","holding":"The Chicago Police Department improperly redacted some portions of the records responsive to the request.","legal_question":"Whether the Chicago Police Department properly applied FOIA exemptions 7(1)(b), 7(1)(c), and 7(1)(d)(iv) to redact records concerning a past burglary investigation.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(iv)"],"public_body":"Chicago Police Department","requesting_party":"Mr. Mitch Dudek (Chicago Sun-Times)","pac_outcome":"Improperly redacted records","pac_law_type":null,"subject_category":"police records","subject_description":"The records concern a 2007 or 2008 break-in and attempted burglary at a specific location.","ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b/51910%2C%20issued%20April%2017%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","redaction","FOIA exemption","burglary records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 17,  2018\n\nVia electronic mail\n\nMr.  Mitch Dudek\n\nReporter\n\nChicago Sun - Times\n[street address redacted for site publication -- see original PDF]\nmdudek@suntimes. com\n\nVia electronic mail\n\nMs.  Charise Valente\nGeneral Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\nChicago,  Illinois 60653\n\npacola@chicagopolice. org\n\nRE:  Request\n\nfor Review — 2018 PAC 51910;  CPD FOIA No.:  P43861\n\nDear Mr. Dudek and Ms.  Valente: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department ( CPD)  improperly redacted\nsome portions of the records responsive to Mr. Mitch Dudek' s January 16,  2018,  FOIA request. \n\nOn that date,  Mr. Dudek,  on behalf of the Chicago Sun - Times,  submitted a FOIA\nrequest to CPD seeking copies of records,  including police reports and any surveillance videos, \nrelated to a break- in and attempted burglary at a named location that occurred in 2007 or 2008. \nOn February 22,  2018,  CPD produced copies of the responsive records but extensively redacted\nto sections 7( 1)( b),  7( 1)( c),  and 7( 1)( d)( iv)  of FOIA ( 5 ILCS 140/ 7( 1)( b), \ninformation pursuant\n1)( c), (\n\n1)( d)( iv) ( West 2016),  as amended by Public Acts 100- 026,  effective August 4,  2017; \n\nand 100- 201,  effective August 18,  2017).  On February 27,  2018,  this office received Mr. \nDudek' s Request\n\nfor Review contesting CPD' s redactions. \n\n500 South Second Street,  Springfield,  Illinois 62701 • (\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois, 60601 • ( 312) 814- 3000 •  TTY: ( 312)  814-3374 •  Fax: ( 312)  814- 3806\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Mitch Dudek\n\nMs.  Charise Valente\n\nApril 17,  2018\n\nPage 2\n\nOn March 5,  2018,  this office forwarded a copy of the Request\n\nfor Review to\n\nCPD and asked it to provide this office with unredacted copies of the requested records for our\nconfidential review, together with a detailed explanation of the factual and legal bases for the\napplicability of sections 7( 1)( b),  7( 1)( c),  and 7( 1)( d)( iv).  On March 7,  2018,  CPD provided this\noffice with those materials,  maintaining that the redactions were proper.  On March 8,  2018,  this\noffice forwarded a copy of CPD's response to Mr. Dudek; he replied on March 12,  2018. 1\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Dept. ofPublic Health,  218 III.  2d 390, 415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt\n140/ 1. 2 ( West 2016). \n\nfrom disclosure. \n\n5 ILCS\n\nIn its response to Mr. Dudek' s FOIA request,  CPD provided redacted copies of the\n\noriginal Case Incident Report and Case Supplementary Reports concerning the incident.  CPD' s\n\nresponse stated: \n\nV] ictim ( s)  personal\n\ninformation,  witness ( s)  personal\n\ninformation,  witness statements,  person ( s)  interviewed personal\ninformation, person ( s)  interviewed statements,  Person ( s) \nreporting offense personal\n\ninformation,  Chicago Police employee\n\nnumbers,  and private computer numbers are exempt and were\n\nproperly redacted pursuant to Section 7( 1)( b),  7( 1)( c),  and\n7( 1)( d)( iv)• 121\n\nSection 7( 1)( b)  of FOIA\n\nSection 7( 1)( b)  exempts from disclosure \"[ p] rivate information,  unless disclosure\nlaw or a court order.\"  Section 2( c- \n\nis required by another provision of this Act,  a State or federal\n5)  of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2016))  defines \" private information\"  as: \n\nAlthough Mr. Dudek's reply references that CPD did not provide copies of surveillance videos, \n\nby March 16,  2018,  e- mail to an Assistant Attorney General\nfurther review of that\n\nissue. \n\nin the Public Access Bureau, Mr. Dudek declined\n\nDepartment,  Office of Legal Affairs,  to Mitch Dudek ( February 22,  2018). \n\nLetter from P. O.  W.  Cousins # 8107,  Freedom of Information Officer,  Chicago Police\n\n\fMr.  Mitch Dudek\n\nMs.  Charise Valente\n\nApril 17,  2018\n\nPage 3\n\nU] nique identifiers,  including a person' s social security number, \ndriver' s license number,  employee identification number, \n\nbiometric identifiers, personal financial information, passwords or\n\nother access codes,  medical\ntelephone\nnumbers, and personal email addresses.  Private information also\nincludes home address and personal license plates, except as\n\nrecords,  home or personal\n\notherwise provided by law or when compiled without possibility of\nattribution to any person. ( Emphasis added.) \n\nThis office has previously determined that a CPD user identification number is a\n\nunique number that identifies an individual who is authorized to access certain CPD\nrecordkeeping systems,  and therefore,  constitutes a form of \"private information\"  under section\n2( c- 5).  See,  e.g., I11.  Att'y Gen.  PAC Req.  Rev.  Ltr.  45656,  issued July 18,  2017,  at 3. \n\nThis office has reviewed an unredacted copy of the records in question and\n\ndetermined that CPD redacted employee identification numbers, home addresses,  and personal\nphone numbers.  Such details constitute \" private information\"  under the plain language of that\nterm' s definition in section 2( c- 5)  of FOIA.  Additionally, CPD redacted user identification\nnumbers of specific CPD personnel.  Because user identification numbers,  as well as employee\n\nidentification numbers,  home addresses,  and personal phone numbers,  constitute \" private\n\ninformation,\" \nsection 7( 1)( b). \n\nthis office concludes that CPD did not improperly redact\n\nthose details pursuant\n\nto\n\nCPD,  however,  also redacted business addresses and business telephone numbers. \nThis office has previously determined that the address and telephone number of a business is not\nexempt under section 7( 1)( b)  because such information does not constitute \" private information\" \nwithin the scope of that exemption.  See,  e. g., III.  Att' y Gen.  PAC Req.  Rev.  Ltr. 22902,  issued\nJune 27,  2016,  at 3 ( finding the telephone number of a business was improperly redacted\npursuant\n2014,  at 2 ( determining that business addresses are not exempt from disclosure under section\n7( 1)( b)  of FOIA).  Accordingly,  this office concludes that CPD improperly redacted this\ninformation under section 7( 1)( b)  of FOIA. \n\nto section 7( 1)( b)  of FOIA);  111.  Att' y Gen.  PAC Req.  Rev.  Ltr. 23125,  issued March 26, \n\nAdditionally, CPD redacted a reference to a personal\n\nlicense plate number. \n\nGenerally,  under the plain language of section 7( 1)( b),  a personal\nfrom disclosure.  However,  in this instance,  the redacted portion contains only two numbers of\nthe license plate number\nlicense plate\nnumber does not allow for that license plate number to be attributed to any particular person. \nlicense plate\nTherefore,  because the plain language of section 7( 1)( b)  also states that personal\n\nin question.  The disclosure of two numbers of a personal\n\nlicense plate number is exempt\n\nnumbers are not exempt\n\nfrom disclosure \" when compiled without possibility of attribution to any\n\n\fMr.  Mitch Dudek\n\nMs.  Charise Valente\n\nApril\n\n17,  2018\n\nPage 4\n\nperson\"  this office concludes that CPD improperly redacted the partial personal\nnumber pursuant to section 7( 1)( b)  of FOIA. \n\nlicense plate\n\nSection 7( 1)( c)  of FOIA\n\nSection 7( 1)(\n\nc)  of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy,  unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"  Section 7( 1)(\n\nc)  defines \" unwarranted invasion of personal privacy\" \n\nas: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\n\nright to privacy outweighs any legitimate public interest in\nobtaining the information.  The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy. \n\nA public body' s assertion that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis.  Chicago\nJourneymen Plumbers'  Local Union 130 v.  Department of Public Health,  327 I11.  App.  3d 192, \n196 ( 1st Dist.  2001).  This office has consistently determined that the disclosure of information\nidentifying a victim of a criminal offense would constitute a clearly unwarranted invasion of\npersonal privacy and therefore that such information may be redacted from a record pursuant\nto\nsection 7( 1)( c).  See,  e. g., III.  Att' y Gen.  PAC Req.  Rev.  Ltr.  26904,  issued April 16,  2014,  at 2. \nLikewise,  this office has previously determined that the disclosure of the names of third parties\nmentioned in police reports,  such as suspects who were never arrested and other persons\n\nreferenced incidentally,  constitutes a clearly unwarranted invasion of personal privacy.  See,  e. g., \nIII.  Att' y Gen.  PAC Req.  Rev.  Ltr.  31526,  issued November 26,  2014,  at 6;  see also Citizens for\nResponsibility and Ethics in Washington v.  United States Dep' t of Justice,  846 F.  Supp.  2d 63,  71\nD. D. C.  2012) ( the right to privacy \" is strongest where the individuals in question ' have been\ninvestigated but never publicly charged.\" ( quoting American Civil Liberties Union v.  United\nStates Dep' t of Justice,  655 F. 3d 1,  7 ( D. C.  Cir.  2011))).  Additionally,  this office has previously\ndetermined that an individual' s race is highly personal\nwould constitute an unwarranted invasion of personal privacy.  See,  e. g.,  III.  Att' y Gen.  PAC\nReq.  Rev.  Ltr.  18274,  issued March 27,  2012. \n\ninformation,  the disclosure of which\n\nThis office' s review of the responsive records confirmed that CPD redacted the\n\nname of a victim of an alleged crime and that victim' s identifying information,  including the\nvictim' s personal contact details and race.  CPD also redacted information related to uninvolved\n\n\fMr. Mitch Dudek\n\nMs.  Charise Valente\n\nApril 17,  2018\n\nPage 5\n\nthird parties.  Because disclosure of this information would constitute a clearly unwarranted\ninvasion of personal privacy,  this office concludes that CPD did not improperly redact this\ninformation pursuant to section 7( 1)( c). \n\nCPD also redacted the ages of individuals identified in the responsive records.  As\n\nopposed to dates of birth, this office has determined that ages are not exempt from disclosure\nunder section 7( 1)( c)  of FOIA.  See,  e. g., 111.  Att'y Gen.  PAC Req.  Rev.  22982,  issued July 29, \n2013,  at 4.  Additionally,  CPD redacted the names of uninvolved businesses that were\nincidentally mentioned in the reports in question.  Unlike the names of individuals,  the disclosure\nof the names of businesses would not cause an unwarranted invasion of any individual' s personal\nprivacy.  Accordingly,  this office concludes that CPD improperly redacted these details under\nsection 7( 1)( c)  of FOIA. \n\nSection 7( 1)( d)( iv)  of FOIA\n\nSection 7( 1)( d)( iv)  of FOIA exempts from disclosure: \n\nd) \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nr\n\niv) \n\nunavoidably disclose the identity of a confidential\n\nsource,  confidential\nconfidential source,  or persons who file complaints with or\nprovide information to administrative,  investigative, law\n\ninformation furnished only by the\n\nenforcement,  or penal agencies[.] \n\nThis provision allows police departments to protect\n\nthe anonymity of both\ninformants and other persons who provide them with information.  See,  e.g., \n\nconfidential\nChicago Alliance for Neighborhood Safety v.  Town of Chicago,  348 Ill. App. 3d 188,  200- 01 ( 1st\nDist.  2004) ( names and addresses of beat meeting participants properly redacted because they\nprovided information to police department).  A witness statement may be withheld in its entirety\nonly if disclosure of its contents \" would necessarily result in the disclosure of the identity of that\nsource\"  of information and,  therefore, \" redaction of the [ statement]  cannot be meaningfully\naccomplished.\"  Copley Press,  Inc.  v.  City of Springfield,  266 III.  App.  3d 421,  426 ( 4th Dist. \n1994). \n\n\fr. Mitch Dudek\n\nMs.  Charise Valente\n\nApril\n\n17,  2018\n\nPage 6\n\nThis office' s review confirmed that certain portions that CPD redacted from the\n\nnarrative sections of the reports contain discrete information that would unavoidably identify\npersons who provided information to CPD,  such as those individuals'  names,  titles,  addresses, \nand telephone numbers.  Under the plain language of section 7( 1)( d)( iv),  CPD did not improperly\nredact this identifying information.  Portions of the redacted responsive records,  however,  also\ndocument the manner in which the police handled the matter, descriptions of the general nature\nof the crime under investigation, and a description of images that the police officers viewed on\nsecurity surveillance footage.  Such information does not fall within the scope of section\n7( 1)( d)( iv)  because there is no indication that the disclosure of that information would reveal the\nidentity of the persons who provided information to CPD. \n\nIn accordance with the conclusions expressed in this determination, \n\nthis office\n\nrequests that CPD provide Mr.  Dudek with copies of the non- exempt portions of the responsive\n\nrecords.  With this letter to CPD,  this office has attached a copy of the records in which we have\nhighlighted the portions of the records for which this office has concluded that CPD has\nsustained its burden of demonstrating are exempt from disclosure;  the remaining portions should\nbe provided to Mr.  Dudek.  The highlighted copy of the report\nMr.  Dudek. \n\nis not included with the letter to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  you may contact me by mail at the Chicago address on the first page of this letter, \nby e- mail at sbarnaby@atg. state. il. us,  or by phone at ( 312)  550- 4480.  Thank you. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n51910 f 716 proper/ improper 71c proper/ improper\n\n71 div proper/ improper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested police records regarding an old burglary case, but the Chicago Police Department heavily redacted the documents they provided. The Attorney General's office reviewed the files and decided that the police department went too far with their redactions. The department must now release the portions of the records that the PAC determined were not legally exempt.","card_headline":"Police records of a past burglary investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-51910/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nApril 17, 2018\n\nVia electronic mail\n\nMr. Mitch Dudek\n\nReporter\n\nChicago Sun - Times\n[street address redacted for site publication -- see original PDF]\nmdudek@suntimes. com\n\nVia electronic mail\n\nMs. Charise Valente\nGeneral Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653\n\npacola@chicagopolice. org\n\nRE: Request\n\nfor Review — 2018 PAC 51910; CPD FOIA No.: P43861\n\nDear Mr. Dudek and Ms. Valente: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) improperly redacted\nsome portions of the records responsive to Mr. Mitch Dudek's January 16, 2018, FOIA request. \n\nOn that date, Mr. Dudek, on behalf of the Chicago Sun - Times, submitted a FOIA\nrequest to CPD seeking copies of records, including police reports and any surveillance videos, \nrelated to a break- in and attempted burglary at a named location that occurred in 2007 or 2008. \nOn February 22, 2018, CPD produced copies of the responsive records but extensively redacted\nto sections 7(1)(b), 7(1)(c), and 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(1)(b), \ninformation pursuant\n1)(c), (1)(d)(iv) (West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; \n\nand 100- 201, effective August 18, 2017). On February 27, 2018, this office received Mr. \nDudek's Request\n\nfor Review contesting CPD's redactions. \n\nOn March 5, 2018, this office forwarded a copy of the Request\n\nfor Review to\n\nCPD and asked it to provide this office with unredacted copies of the requested records for our\nconfidential review, together with a detailed explanation of the factual and legal bases for the\napplicability of sections 7(1)(b), 7(1)(c), and 7(1)(d)(iv). On March 7, 2018, CPD provided this\noffice with those materials, maintaining that the redactions were proper. On March 8, 2018, this\noffice forwarded a copy of CPD's response to Mr. Dudek; he replied on March 12, 2018. 1\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Dept. ofPublic Health, 218 III. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt\n140/ 1. 2 (West 2016). \n\nfrom disclosure. \n\n5 ILCS\n\nIn its response to Mr. Dudek's FOIA request, CPD provided redacted copies of the\n\noriginal Case Incident Report and Case Supplementary Reports concerning the incident. CPD's\n\nresponse stated: \n\nV] ictim (s) personal\n\ninformation, witness (s) personal\n\ninformation, witness statements, person (s) interviewed personal\ninformation, person (s) interviewed statements, Person (s) \nreporting offense personal\n\ninformation, Chicago Police employee\n\nnumbers, and private computer numbers are exempt and were\n\nproperly redacted pursuant to Section 7(1)(b), 7(1)(c), and\n7(1)(d)(iv)• 121\n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) exempts from disclosure \"[ p] rivate information, unless disclosure\nlaw or a court order.\" Section 2(c- \n\nis required by another provision of this Act, a State or federal\n5) of FOIA (5 ILCS 140/ 2(c- 5) (West 2016)) defines \" private information\" as: \n\nAlthough Mr. Dudek's reply references that CPD did not provide copies of surveillance videos, \n\nby March 16, 2018, e- mail to an Assistant Attorney General\nfurther review of that\n\nU] nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, \n\nbiometric identifiers, personal financial information, passwords or\n\nother access codes, medical\ntelephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\n\nrecords, home or personal\n\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.) \n\nThis office has previously determined that a CPD user identification number is a\n\nunique number that identifies an individual who is authorized to access certain CPD\nrecordkeeping systems, and therefore, constitutes a form of \"private information\" under section\n2(c- 5). See, e.g., I11. Att'y Gen. PAC Req. Rev. Ltr. 45656, issued July 18, 2017, at 3. \n\nThis office has reviewed an unredacted copy of the records in question and\n\ndetermined that CPD redacted employee identification numbers, home addresses, and personal\nphone numbers. Such details constitute \" private information\" under the plain language of that\nterm's definition in section 2(c- 5) of FOIA. Additionally, CPD redacted user identification\nnumbers of specific CPD personnel. Because user identification numbers, as well as employee\n\nidentification numbers, home addresses, and personal phone numbers, constitute \" private\n\ninformation,\" \nsection 7(1)(b). \n\nthis office concludes that CPD did not improperly redact\n\nthose details pursuant\n\nto\n\nCPD, however, also redacted business addresses and business telephone numbers. \nThis office has previously determined that the address and telephone number of a business is not\nexempt under section 7(1)(b) because such information does not constitute \" private information\" \nwithin the scope of that exemption. See, e. g., III. Att' y Gen. PAC Req. Rev. Ltr. 22902, issued\nJune 27, 2016, at 3 (finding the telephone number of a business was improperly redacted\npursuant\n2014, at 2 (determining that business addresses are not exempt from disclosure under section\n7(1)(b) of FOIA). Accordingly, this office concludes that CPD improperly redacted this\ninformation under section 7(1)(b) of FOIA. \n\nto section 7(1)(b) of FOIA); 111. Att' y Gen. PAC Req. Rev. Ltr. 23125, issued March 26, \n\nAdditionally, CPD redacted a reference to a personal\n\nlicense plate number. \n\nGenerally, under the plain language of section 7(1)(b), a personal\nfrom disclosure. However, in this instance, the redacted portion contains only two numbers of\nthe license plate number\nlicense plate\nnumber does not allow for that license plate number to be attributed to any particular person. \nlicense plate\nTherefore, because the plain language of section 7(1)(b) also states that personal\n\nperson\" this office concludes that CPD improperly redacted the partial personal\nnumber pursuant to section 7(1)(b) of FOIA. \n\nlicense plate\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \n\nas: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\n\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy. \n\nA public body's assertion that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 I11. App. 3d 192, \n196 (1st Dist. 2001). This office has consistently determined that the disclosure of information\nidentifying a victim of a criminal offense would constitute a clearly unwarranted invasion of\npersonal privacy and therefore that such information may be redacted from a record pursuant\nto\nsection 7(1)(c). See, e. g., III. Att' y Gen. PAC Req. Rev. Ltr. 26904, issued April 16, 2014, at 2. \nLikewise, this office has previously determined that the disclosure of the names of third parties\nmentioned in police reports, such as suspects who were never arrested and other persons\n\nreferenced incidentally, constitutes a clearly unwarranted invasion of personal privacy. See, e. g., \nIII. Att' y Gen. PAC Req. Rev. Ltr. 31526, issued November 26, 2014, at 6; see also Citizens for\nResponsibility and Ethics in Washington v. United States Dep' t of Justice, 846 F. Supp. 2d 63, 71\nD. D. C. 2012) (the right to privacy \" is strongest where the individuals in question ' have been\ninvestigated but never publicly charged.\" (quoting American Civil Liberties Union v. United\nStates Dep' t of Justice, 655 F. 3d 1, 7 (D. C. Cir. 2011))). Additionally, this office has previously\ndetermined that an individual's race is highly personal\nwould constitute an unwarranted invasion of personal privacy. See, e. g., III. Att' y Gen. PAC\nReq. Rev. Ltr. 18274, issued March 27, 2012. \n\ninformation, the disclosure of which\n\nThis office's review of the responsive records confirmed that CPD redacted the\n\nname of a victim of an alleged crime and that victim's identifying information, including the\nvictim's personal contact details and race. CPD also redacted information related to uninvolved\n\nthird parties. Because disclosure of this information would constitute a clearly unwarranted\ninvasion of personal privacy, this office concludes that CPD did not improperly redact this\ninformation pursuant to section 7(1)(c). \n\nCPD also redacted the ages of individuals identified in the responsive records. As\n\nopposed to dates of birth, this office has determined that ages are not exempt from disclosure\nunder section 7(1)(c) of FOIA. See, e. g., 111. Att'y Gen. PAC Req. Rev. 22982, issued July 29, \n2013, at 4. Additionally, CPD redacted the names of uninvolved businesses that were\nincidentally mentioned in the reports in question. Unlike the names of individuals, the disclosure\nof the names of businesses would not cause an unwarranted invasion of any individual's personal\nprivacy. Accordingly, this office concludes that CPD improperly redacted these details under\nsection 7(1)(c) of FOIA. \n\nSection 7(1)(d)(iv) of FOIA\n\nSection 7(1)(d)(iv) of FOIA exempts from disclosure: \n\nd) \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nr\n\niv) \n\nunavoidably disclose the identity of a confidential\n\nsource, confidential\nconfidential source, or persons who file complaints with or\nprovide information to administrative, investigative, law\n\ninformation furnished only by the\n\nenforcement, or penal agencies[.] \n\nThis provision allows police departments to protect\n\nthe anonymity of both\ninformants and other persons who provide them with information. See, e.g., \n\nconfidential\nChicago Alliance for Neighborhood Safety v. Town of Chicago, 348 Ill. App. 3d 188, 200- 01 (1st\nDist. 2004) (names and addresses of beat meeting participants properly redacted because they\nprovided information to police department). A witness statement may be withheld in its entirety\nonly if disclosure of its contents \" would necessarily result in the disclosure of the identity of that\nsource\" of information and, therefore, \" redaction of the [ statement] cannot be meaningfully\naccomplished.\" Copley Press, Inc. v. City of Springfield, 266 III. App. 3d 421, 426 (4th Dist. \n\nThis office's review confirmed that certain portions that CPD redacted from the\n\nnarrative sections of the reports contain discrete information that would unavoidably identify\npersons who provided information to CPD, such as those individuals' names, titles, addresses, \nand telephone numbers. Under the plain language of section 7(1)(d)(iv), CPD did not improperly\nredact this identifying information. Portions of the redacted responsive records, however, also\ndocument the manner in which the police handled the matter, descriptions of the general nature\nof the crime under investigation, and a description of images that the police officers viewed on\nsecurity surveillance footage. Such information does not fall within the scope of section\n7(1)(d)(iv) because there is no indication that the disclosure of that information would reveal the\nidentity of the persons who provided information to CPD. \n\nIn accordance with the conclusions expressed in this determination, \n\nthis office\n\nrequests that CPD provide Mr. Dudek with copies of the non- exempt portions of the responsive\n\nrecords. With this letter to CPD, this office has attached a copy of the records in which we have\nhighlighted the portions of the records for which this office has concluded that CPD has\nsustained its burden of demonstrating are exempt from disclosure; the remaining portions should\nbe provided to Mr. Dudek. The highlighted copy of the report\nMr. Dudek. \n\nis not included with the letter to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me by mail at the Chicago address on the first page of this letter, \nby e- mail at sbarnaby@atg. state. il. us, or by phone at (312) 550- 4480. Thank you. \n\nVery truly yours, \n\nSHANNON BARNABY\n\nAssistant Attorney General\nPublic Access Bureau\n\n51910 f 716 proper/ improper 71c proper/ improper\n\n71 div proper/ improper pd"}
{"id":907,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-11-18","case_number":null,"request_numbers":["52130"],"title":"Village of East Dundee violated FOIA by improperly aggregating burden to deny request","filename":"52130, issued November 18, 2020.pdf","rel_path":null,"word_count":1467,"summary":"Representative Allen Skillicom requested emails between Village of East Dundee officials, which the Village denied as unduly burdensome. The PAC determined that the Village failed to provide the required opportunity for the requester to confer and narrow the request as mandated by FOIA.","plain_summary":"A state representative asked the Village of East Dundee for emails from the Finance Director to the Village Administrator during a specific month. The Village denied the request, claiming it was unduly burdensome, and cited the burden of multiple related requests from other individuals. The Attorney General's office found that the Village violated FOIA because it improperly combined the burden of separate requests and failed to show that the burden of complying with the representative's individual request outweighed the public interest. The Village was asked to provide the responsive emails, subject to permissible redactions.","holding":"The Village of East Dundee violated FOIA by improperly aggregating the burden of multiple related requests and failing to demonstrate that the burden of complying with the individual request outweighed the public interest.","legal_question":"Whether a public body may deny a FOIA request as unduly burdensome under section 3(g) without first providing the requester an opportunity to confer and narrow the request.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of East Dundee","requesting_party":"Representative Allen Skillicom","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought all emails between the Village Finance Director and the Village Administrator over a one-month period.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Combining-requests/52130%2C%20issued%20November%2018%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","FOIA request","narrowing request","Village of East Dundee"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nNovember 18,  2020\n\nVia electronic mail\n\nThe Honorable Allen Skillicom\n\nState Representative,  66th District\n\n245 Dunridge Circle\n\n[street address redacted for site publication -- see original PDF]\nloudes13@yahoo. com\n\nVia electronic mail\n\nMs.  Mallory A.  Milluzzi\nKlein,  Thorpe &  Jenkins,  Ltd. \n\n20 North Wacker Drive,  Suite 1660\n\nChicago,  Illinois 60606\n\nmamilluzzi@ktjlaw. com\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 52130\n\nDear Representative Skillicom and Ms.  Milluzzi: \n\nThis determination letter is issued pursuant\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)). \n\nto section 9. 5( 0 of the Freedom of\n\nOn March 5,  2018,  Representative Allen Skillicom submitted a FOIA request\n\nto\n\nthe Village of East Dundee ( Village)  seeking \"[ a] ll emails from Finance Director Torres to\nVillage Administrator] \n\nJennifer Johnsen from March 1,  2017 to April\n\n1,  2017 in an electronic\n\nformat.\"  On March 12,  2018,  the Village responded that the request was unduly burdensome\nunder section 3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West 2018)).  The Village stated: \n\nA FOIA request was received on February 18,  2018 for all emails, \nincluding any attachments to emails,  between Jennifer Johnsen and\nthe Finance Director from February 1st,  2017 through August 1st, \n2017.  After numerous times of the requestor and I going back and\nforth with requests to narrow the scope of the request,  efforts to\n\nreduce the request to manageable proportions were unsuccessful\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fThe Honorable Allen Skillicorn\n\nMs.  Mallory A. Milluzzi\nNovember 18,  2020\n\nPage 2\n\nand the request was ultimately denied. \n\nSince then,  I have come to realize that several\n\nindividuals\n\nare working in concert with each other and farming out the original\nrequest amongst each other with each requesting for the same exact\ninformation but for the next consecutive month.  Therefore,  all six\n\nrequests that have been received by six different individuals are\nbeing considered as one requestor.  And although it is not\nappropriate to deny the requests individually,  clearly all six\nrequesters are working together.  Therefore,  the Village is denying\nthe request based on the fact that the request is unduly burdensome\nbecause the burden on the Village of complying with your request\noutweighs the public interest in providing the specified records,  the\nefforts to reduce the request\nunsuccessful and your refusal to narrow the scope by subject? t' 1\nEmphasis added.) \n\nto manageable proportions have been\n\nRepresentative Skillicorn submitted this Request\n\nfor Review contesting the\n\nVillage' s response.  In addition,  five other individuals submitted Requests for Review contesting\nthe denial of their FOIA requests for similar information in different time periods.  Since a\n\nsignificant\ntime period has passed,  this office recently asked each requester whether he or she\nwas still interested in pursuing their Request for Review.  Representative Skillicorn is the only\nindividual who indicated to this office that he was still interested in receiving responsive records. \nAccordingly,  this determination will review whether Representative Skillicorn' s FOIA request\nwas unduly burdensome. \n\nSection 3( g)  of FOIA provides,  in pertinent part,  that: \n\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest\nin the information.  Before invoking\nthis exemption,  the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request\nresponds to a categorical\n\nrequest by stating that compliance would\n\nto manageable proportions. \n\nIf any public body\n\nE - mail\n\nfrom Katherine Holt ( March 12,  2018). \n\n\fThe Honorable Allen Skillicorn\n\nMs.  Mallory A.  Milluzzi\nNovember\n\n18,  2020\n\nPage 3\n\nunduly burden its operation and the conditions described above are\nmet,  it shall do so in writing,  specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance will so\nburden the operations of the public body.  Such a response shall be\ntreated as a denial of the request for information. \n\nA]  public body asserting a section 3( g)  exemption must make a clear and\n\nconvincing showing that the burden of compliance outweighs public interest\nthe requested records.\"  Sargent Shriver National Center on Poverty Law,  Inc.  v.  Board of\nEducation of City of Chicago,  2018 IL App ( 1st)  171846, ¶ 38,  122 N. E. 3d 729,  738 ( 2018). \nSection 3( g)  does not define what constitutes an unduly burdensome request,  other than that it is\na categorical\nfor records in which the burden on the public body of producing the records\nrequest\nwould outweigh the public interest\ninvolves a case- by- case analysis in which the public body must demonstrate the extent of the\nburden of compliance on its operations and that the burden outweighs the public interest\n\nin obtaining the information.  Thus,  section 3( g)  necessarily\n\nin the disclosure of\n\nin\n\ndisclosure.  See Sargent Shriver National Center on Poverty Law, Inc.  v. Board ofEducation of\nCity of Chicago,  2018 IL App ( 1st)  171846, ¶ 38,  122 N. E. 3d 729,  738 ( 2018) (\" What constitutes\na clear and convincing showing of undue burden will\nlikely vary from case to case,  depending on\nthe broadness of the request,  the level of detail provided in the public body' s response,  and the\nnature of the parties'  exchange.\"). \n\nIn response to this office,  the Village provided a chart which indicated that\n\nit had\n\napproximately 275 e- mails responsive to Representative Skillicom' s March 5,  2018,  FOIA\nin\nrequest.  Although Representative Skillicorn has not\n\nidentified a specific public interest\n\nviewing the approximately 275 e- mails responsive to his categorical request for all e- mails\nwithin a certain time period,  there generally is a public interest\ncommunications\n\nin the disclosure of\nand Finance Director.  Further,  the Village\n\nbetween the Village Administrator\n\nacknowledged in its response to Mr.  Skillicorn that\nindividual FOIA request as unduly burdensome. \n\nit would not be appropriate to deny his\n\nSection 3( g)  requires a public body to specify the extent\n\nto which its operations\nrequest[.]\"  Other provisions of FOIA\n\nwould be burdened by complying with each \" categorical\nare designed to address the burden of responding to separate requests submitted by multiple\n\n\fThe Honorable Allen Skillicom\n\nMs. Mallory A. Milluzzi\nNovember 18,  2020\n\nPage 4\n\nindividuals acting in concert.2 Section 3( g),  however, does not permit a public body to measure\nthe burden of complying with an individual\nrequest by aggregating the burden of complying with\nother related requests.  As such,  the Village has not demonstrated that the burden of complying\nwith Representative Skillicorn' s March 5,  2018,  FOIA request would outweigh the public interest\nin the requested e- mails.  Accordingly,  this office requests that the Village provide\nRepresentative Skillicom with those e- mails in an electronic format, subject to permissible\n\nredactions pursuant\n\nto section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018)). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  Please contact me at ( 312) \n814- 5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nEDIE STEINBERG\n\nSenior Assistant Attorney G\nPublic Access Bureau\n\n52130 f 3g and burd improper mun\n\n2Section 2( b)  of FOIA ( 5 ILCS 140/ 2( b) ( West 2018))  defines \" person\" as \" any individual, \n\nfirm,  organization or association,  acting individually or as a group.\" ( Emphasis added.); \n\ncorporation,  partnership, \nsee also 5 ILCS 1 40/ 2( g) ( West 2018) ( defining \" recurrent requester\"  as \" a person that,  in the 12 months\nimmediately preceding the request,  has submitted to the same public body ( i)  a minimum of 50 requests for records, \nii)  a minimum of 15 requests for records within a 30 -day period, or ( iii) a minimuncof 7 requests for records within\na 7 - day period.\"); \nindividual requests that total requests for more than 5 different categories of records in a period of 20 business\ndays;\"); \n\n5 ILCS 140/ 2( h) ( West 2018)  defining \" voluminous request\"  to include \" a combination of\n\n5 ILCS 140/ 3. 2,  3. 6 ( West 2018) ( providing expanded time periods and options for responding to\n\nvoluminous requests and requests by recurrent\n\nrequesters). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails between a finance director and a village administrator","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52130/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nNovember 18, 2020\n\nVia electronic mail\n\nThe Honorable Allen Skillicom\n\nState Representative, 66th District\n\n245 Dunridge Circle\n\n[street address redacted for site publication -- see original PDF]\nloudes13@yahoo. com\n\nVia electronic mail\n\nMs. Mallory A. Milluzzi\nKlein, Thorpe & Jenkins, Ltd. \n\n20 North Wacker Drive, Suite 1660\n\nChicago, Illinois 60606\n\nmamilluzzi@ktjlaw. com\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52130\n\nDear Representative Skillicom and Ms. Milluzzi: \n\nThis determination letter is issued pursuant\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). \n\nto section 9. 5(0 of the Freedom of\n\nOn March 5, 2018, Representative Allen Skillicom submitted a FOIA request\n\nto\n\nthe Village of East Dundee (Village) seeking \"[ a] ll emails from Finance Director Torres to\nVillage Administrator] \n\nJennifer Johnsen from March 1, 2017 to April\n\n1, 2017 in an electronic\n\nformat.\" On March 12, 2018, the Village responded that the request was unduly burdensome\nunder section 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2018)). The Village stated: \n\nA FOIA request was received on February 18, 2018 for all emails, \nincluding any attachments to emails, between Jennifer Johnsen and\nthe Finance Director from February 1st, 2017 through August 1st, \n2017. After numerous times of the requestor and I going back and\nforth with requests to narrow the scope of the request, efforts to\n\nreduce the request to manageable proportions were unsuccessful\n\nand the request was ultimately denied. \n\nSince then, I have come to realize that several\n\nindividuals\n\nare working in concert with each other and farming out the original\nrequest amongst each other with each requesting for the same exact\ninformation but for the next consecutive month. Therefore, all six\n\nrequests that have been received by six different individuals are\nbeing considered as one requestor. And although it is not\nappropriate to deny the requests individually, clearly all six\nrequesters are working together. Therefore, the Village is denying\nthe request based on the fact that the request is unduly burdensome\nbecause the burden on the Village of complying with your request\noutweighs the public interest in providing the specified records, the\nefforts to reduce the request\nunsuccessful and your refusal to narrow the scope by subject? t' 1\nEmphasis added.) \n\nto manageable proportions have been\n\nRepresentative Skillicorn submitted this Request\n\nfor Review contesting the\n\nVillage's response. In addition, five other individuals submitted Requests for Review contesting\nthe denial of their FOIA requests for similar information in different time periods. Since a\n\nsignificant\ntime period has passed, this office recently asked each requester whether he or she\nwas still interested in pursuing their Request for Review. Representative Skillicorn is the only\nindividual who indicated to this office that he was still interested in receiving responsive records. \nAccordingly, this determination will review whether Representative Skillicorn's FOIA request\nwas unduly burdensome. \n\nSection 3(g) of FOIA provides, in pertinent part, that: \n\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\n\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest\nin the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request\nresponds to a categorical\n\nrequest by stating that compliance would\n\nunduly burden its operation and the conditions described above are\nmet, it shall do so in writing, specifying the reasons why it would\nbe unduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. \n\nA] public body asserting a section 3(g) exemption must make a clear and\n\nconvincing showing that the burden of compliance outweighs public interest\nthe requested records.\" Sargent Shriver National Center on Poverty Law, Inc. v. Board of\nEducation of City of Chicago, 2018 IL App (1st) 171846, ¶ 38, 122 N. E. 3d 729, 738 (2018). \nSection 3(g) does not define what constitutes an unduly burdensome request, other than that it is\na categorical\nfor records in which the burden on the public body of producing the records\nrequest\nwould outweigh the public interest\ninvolves a case- by- case analysis in which the public body must demonstrate the extent of the\nburden of compliance on its operations and that the burden outweighs the public interest\n\nin obtaining the information. Thus, section 3(g) necessarily\n\nin the disclosure of\n\nin\n\ndisclosure. See Sargent Shriver National Center on Poverty Law, Inc. v. Board ofEducation of\nCity of Chicago, 2018 IL App (1st) 171846, ¶ 38, 122 N. E. 3d 729, 738 (2018) (\" What constitutes\na clear and convincing showing of undue burden will\nlikely vary from case to case, depending on\nthe broadness of the request, the level of detail provided in the public body's response, and the\nnature of the parties' exchange.\"). \n\nIn response to this office, the Village provided a chart which indicated that\n\nit had\n\napproximately 275 e- mails responsive to Representative Skillicom's March 5, 2018, FOIA\nin\nrequest. Although Representative Skillicorn has not\n\nidentified a specific public interest\n\nviewing the approximately 275 e- mails responsive to his categorical request for all e- mails\nwithin a certain time period, there generally is a public interest\ncommunications\n\nin the disclosure of\nand Finance Director. Further, the Village\n\nbetween the Village Administrator\n\nacknowledged in its response to Mr. Skillicorn that\nindividual FOIA request as unduly burdensome. \n\nit would not be appropriate to deny his\n\nSection 3(g) requires a public body to specify the extent\n\nto which its operations\nrequest[.]\" Other provisions of FOIA\n\nwould be burdened by complying with each \" categorical\nare designed to address the burden of responding to separate requests submitted by multiple\n\nindividuals acting in concert.2 Section 3(g), however, does not permit a public body to measure\nthe burden of complying with an individual\nrequest by aggregating the burden of complying with\nother related requests. As such, the Village has not demonstrated that the burden of complying\nwith Representative Skillicorn's March 5, 2018, FOIA request would outweigh the public interest\nin the requested e- mails. Accordingly, this office requests that the Village provide\nRepresentative Skillicom with those e- mails in an electronic format, subject to permissible\n\nredactions pursuant\n\nto section 7 of FOIA (5 ILCS 140/ 7 (West 2018)). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (312) \n814- 5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nEDIE STEINBERG\n\nSenior Assistant Attorney G\nPublic Access Bureau\n\n52130 f 3g and burd improper mun\n\n2 Section 2(b) of FOIA (5 ILCS 140/ 2(b) (West 2018)) defines \" person\" as \" any individual, \n\nfirm, organization or association, acting individually or as a group.\" (Emphasis added.); \n\ncorporation, partnership, \nsee also 5 ILCS 1 40/ 2(g) (West 2018) (defining \" recurrent requester\" as \" a person that, in the 12 months\nimmediately preceding the request, has submitted to the same public body (i) a minimum of 50 requests for records, \nii) a minimum of 15 requests for records within a 30 -day period, or (iii) a minimuncof 7 requests for records within\na 7 - day period.\"); \nindividual requests that total requests for more than 5 different categories of records in a period of 20 business\ndays;\"); \n\n5 ILCS 140/ 2(h) (West 2018) defining \" voluminous request\" to include \" a combination of\n\n5 ILCS 140/ 3. 2, 3. 6 (West 2018) (providing expanded time periods and options for responding to\n\nvoluminous requests and requests by recurrent\n\nrequesters)."}
{"id":908,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-06-27","case_number":null,"request_numbers":["52348"],"title":"Illinois State Police improperly withheld investigation records under 7(1)(d)(iii)","filename":"52348, Issued June 27, 2018.pdf","rel_path":null,"word_count":1467,"summary":"The requester sought records from the Illinois State Police regarding an investigation into New Lenox Police Department personnel, which the ISP denied under the fair trial exemption; the PAC determined the denial was improper and ordered the records disclosed with appropriate redactions.","plain_summary":"A citizen requested records from the Illinois State Police about an investigation into local police officers. The State Police refused to release any of the documents, claiming it would prevent a fair trial. The Attorney General's office disagreed, ruling that the agency must release the records while redacting sensitive private information.","holding":"The Illinois State Police improperly withheld the requested records in their entirety, as they failed to demonstrate that the disclosure would interfere with a fair trial or impartial hearing.","legal_question":"Whether the Illinois State Police properly invoked the section 7(1)(d)(iii) exemption to deny a request for records concerning an investigation of police officers.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(iii)"],"public_body":"Illinois State Police","requesting_party":null,"pac_outcome":"Violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned records of an investigation into specific individuals within the New Lenox Police Department regarding an August 2016 incident.","ocr_status":"ok","ocr_quality":93.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iii/52348%2C%20Issued%20June%2027%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","fair trial exemption","redaction","investigatory records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJune 27,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Kerry Sutton\nLegal Counsel\n\nIllinois State Police\n\n801 South Seventh Street,  1000- S\nSpringfield,  Illinois 62703\nkerry_sutton@isp. state. il.us\n\nRE:  FOIA Request for Review — 2018 PAC 52348;  ISP FOIR 18- 0441\n\nDear\n\nand Mr. Sutton: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons that follow, the\n\nPublic Access Bureau concludes that the response by the Illinois State Police ( ISP)  to\n\nFebruary 13,  2018,  request violated the requirements of FOIA. \n\nOn that date, \n\nsubmitted a FOIA request to ISP seeking copies of\n\nany and all records involving the investigation of specific individuals within the New Lenox\nPolice Department concerning an August 2016 incident.  On February 20,  2018,  ISP extended its\ntime for response by five business days.  On March 7,  2018,  ISP denied the request in its entirety\n\npursuant\n\nto section 7( 1)( d)( iii) of FOIA ( 5 ILCS 140/ 7( 1)( d)( iii) ( West 2017 Supp.)). \n\nISP\n\nasserted: \n\n500 South Second Street,  Springfield,  Illinois 62706 • (\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Kerry Sutton\nJune 27,  2018\n\nPage 2\n\nlikelihood that\n\nThe information requested could create a substantial\na person will be deprived of a fair trial or an impartial hearing if\nthe information were made public, as this case has not yet been\nadjudicated.  The entirety of the evidence in this case is related to\nstatements made by law enforcement officers against another law\nenforcement officer.  The Appellate Prosecutor is currently\nreviewing this case for possible charges against the accused.  With\nthe recent rash of news stories presenting law enforcement officials\nin a bad light,  release of this information at this time would serve\nto taint a jury pool,  thus preventing the accused officer from\nreceiving a fair trial. l' 1\n\nOn March 16,  2018, \n\nsubmitted this Request for Review\n\ncontesting ISP' s denial. \n\nOn April 11,  2018,  this office sent a copy of the Request for Review to ISP and\n\nasked it to furnish this office with unredacted copies of the requested records for this office' s\nconfidential review,  together with a detailed written explanation of the factual and legal bases for\nthe applicability' of the asserted exemption.  On April 18,  2018,  ISP provided the requested\nmaterials and a written response,  asserting: \n\nThis is still an active investigation.  The Appellate\nProsecutor' s office has received the reports and is in the process of\ngoing through the reports to determine the next steps,  if any.  Upon\nreview, the prosecutor may ask for additional\ninterviews or follow\nISP' s FOIA officer has personally spoken with\nup investigations. \nthe prosecutor' s office and they have requested that no documents\nbe released until their review has been completed. 121\n\nISP enclosed an e- mail from the appellate prosecutor' s office asking that the requested\ninformation not be released yet. \n\ndid not submit a reply. \n\n2018). \n\nE- mail\n\nfrom Erin Davis,  Freedom of Information Officer,  to\n\nMarch 7, \n\nAttorney General],  Office of the Attorney General ( April\n\n2Letter from Lieutenant Kerry Sutton,  Legal Counsel,  to Mr. Christopher Boggs,  Assistant\n18,  2018). \n\n\fMr. Kerry Sutton\nJune 27,  2018\n\nPage 3\n\nDETERMINATION\n\nFOIA provides that \"[ a] ll records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also\nSouthern Illinoisan v. Illinois Department ofPublic Health,  218 111.  2d 390,  415 ( 2006).  A\npublic body \" has the burden of proving by clear and convincing evidence\" \nexempt\n\n5 ILCS 140/ 1. 2 ( West 2016). \n\nthat a record is\n\nfrom disclosure. \n\nSection 7( 1)( d)( iii) of FOIA exempts from disclosure: \n\nd)  Records in the possession of any public body created in\nthe course of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niii) create a substantial\n\nlikelihood that a person will\n\nbe deprived of a fair trial or impartial hearing[.] \n\nTo demonstrate that records are exempt from disclosure under the corresponding provision in\nFederal FOIA ( 5 U. S. C. §  552 et seq. ( 1982 and Supp.  1988)), 3 an agency must establish \"(\n1) \nthat a trial or adjudication is pending or truly imminent; and ( 2)  that it is more probable than not\nthat disclosure of the material sought would seriously interfere with the fairness of those\nproceedings.\"  Washington Post Co.  v.  U.S.  Dep' t of Justice,  863 F. 2d 96,  102 ( D. C.  Cir.  1988). \nIn accordance with Illinois judicial precedent,  the Attorney General has issued a binding opinion\nto ISP concluding that the mere existence of an ongoing investigation that could result\ncriminal charges does not constitute clear and convincing evidence that any records are exempt\nfrom disclosure. \n\nIll. Att' y Gen.  Pub.  Acc.  Op.  No.  17- 001,  issued March 14,  2017,  at 5. \n\nin\n\nISP' s assertion of section 7( 1)( d)( iii) is largely conclusory. \n\nISP' s response to this\n\noffice merely stated that the Appellate Prosecutor' s office was in the process of reviewing the\nrequested records to determine the next steps,  ifany.  ISP has neither demonstrated that a trial or\nadjudication is pending or truly imminent,  nor explained how the release of any specific\nrecords— much less all of the records— would create a substantial\nlikelihood that a person would\nbe deprived of a fair trial.  Because ISP has not set forth facts demonstrating how the disclosure\nof the withheld records would create a substantial likelihood that a person would be deprived of a\n\ndisclosure would \" deprive a person of a right\n\nto a fair trial or an impartial adjudication[.]\" \n\nThis provision exempts records compiled for law enforcement\n\npurposes to the extent\n\nthat\n\n\fMr. Kerry Sutton\nJune 27,  2018\n\nPage 4\n\nfair trial or an impartial hearing,  this office concludes that ISP has not met its burden of\ndemonstrating by clear and convincing evidence that the requested records are exempt from\ndisclosure in their entireties under section 7( 1)( d)( iii) of FOIA. \n\nAlthough ISP did not raise any other exemptions in its response to\n\nFOIA request,  this office notes that certain discrete portions of the responsive records\n\nthat bear on the rights of third parties contain information that may be properly redacted. \nparticular,  private information may be redacted under section 7( 1)( b)  of FOIA ( 5 ILCS\n140/ 7( 1)( b) ( West 2017 Supp.)).' \nIn addition,  dates of birth may be properly redacted under\nsection 7( 1)( c)  ofFOIA5 ( 5 ILCS 140/ 7( 1)( c) ( West 2017 Supp.))  and information identifying\nwitnesses who provided information may are exempt\n7( 1)( d)( iv) ( West 2017 Supp.)).  See 11.  Att' y Gen.  Req.  Rev.  Ltr.  12887,  issued July 20,  2011\nexempting names of public employees who provide information during the course of an\nadministrative investigation of another employee). \n\nfrom disclosure pursuant\n\nto section\n\nIn\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat ISP provide\nwith copies of the requested records,  subject only to permissible\nredactions of the records pursuant to section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2016),  as amended\nby Public Acts 100- 026,  effective August 4,  2017;  100- 201,  effective August 18,  2017). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions, please contact me at the Springfield address on the first page of this letter. \n\nVery truly ours\n\nRIS i ' HER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n52348 f 7ldiii improper pd sa\n\nSection 7( I)( b)  exempts from disclosure \" private information,\"  which FOIA defines to include\n\npersonal telephone numbers,  home addresses,  and employee identification numbers.  5 ILCS 140/ 2( c- 5) ( West\n2016). \n\nSection 7( 1)( c)  permits a public body to withhold information that \" would constitute a clearly\n\nunwarranted invasion of personal privacy\"  if disclosed.  The Attomey General has issued a binding opinion\nconcluding that birth dates are exempt from disclosure pursuant to section 7( 1)( c). \n16- 009,  issued November 7,  2016,  at 12. \n\nIII. Att'y Gen.  Pub.  Acc. Op. No. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An investigation of police officers","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52348/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJune 27, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Kerry Sutton\nLegal Counsel\n\nIllinois State Police\n\n801 South Seventh Street, 1000- S\nSpringfield, Illinois 62703\nkerry_sutton@isp. state. il.us\n\nRE: FOIA Request for Review — 2018 PAC 52348; ISP FOIR 18- 0441\n\nDear\n\nand Mr. Sutton: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the response by the Illinois State Police (ISP) to\n\nFebruary 13, 2018, request violated the requirements of FOIA. \n\nOn that date, \n\nsubmitted a FOIA request to ISP seeking copies of\n\nany and all records involving the investigation of specific individuals within the New Lenox\nPolice Department concerning an August 2016 incident. On February 20, 2018, ISP extended its\ntime for response by five business days. On March 7, 2018, ISP denied the request in its entirety\n\npursuant\n\nto section 7(1)(d)(iii) of FOIA (5 ILCS 140/ 7(1)(d)(iii) (West 2017 Supp.)). \n\nISP\n\nasserted: \n\nlikelihood that\n\nThe information requested could create a substantial\na person will be deprived of a fair trial or an impartial hearing if\nthe information were made public, as this case has not yet been\nadjudicated. The entirety of the evidence in this case is related to\nstatements made by law enforcement officers against another law\nenforcement officer. The Appellate Prosecutor is currently\nreviewing this case for possible charges against the accused. With\nthe recent rash of news stories presenting law enforcement officials\nin a bad light, release of this information at this time would serve\nto taint a jury pool, thus preventing the accused officer from\nreceiving a fair trial. l' 1\n\nOn March 16, 2018, \n\nsubmitted this Request for Review\n\ncontesting ISP's denial. \n\nOn April 11, 2018, this office sent a copy of the Request for Review to ISP and\n\nasked it to furnish this office with unredacted copies of the requested records for this office's\nconfidential review, together with a detailed written explanation of the factual and legal bases for\nthe applicability' of the asserted exemption. On April 18, 2018, ISP provided the requested\nmaterials and a written response, asserting: \n\nThis is still an active investigation. The Appellate\nProsecutor's office has received the reports and is in the process of\ngoing through the reports to determine the next steps, if any. Upon\nreview, the prosecutor may ask for additional\ninterviews or follow\nISP's FOIA officer has personally spoken with\nup investigations. \nthe prosecutor's office and they have requested that no documents\nbe released until their review has been completed. 121\n\nISP enclosed an e- mail from the appellate prosecutor's office asking that the requested\ninformation not be released yet. \n\ndid not submit a reply. \n\n2018). \n\nE- mail\n\nDETERMINATION\n\nFOIA provides that \"[ a] ll records in the custody or possession of a public body\n\nare presumed to be open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also\nSouthern Illinoisan v. Illinois Department ofPublic Health, 218 111. 2d 390, 415 (2006). A\npublic body \" has the burden of proving by clear and convincing evidence\" \nexempt\n\n5 ILCS 140/ 1. 2 (West 2016). \n\nthat a record is\n\nfrom disclosure. \n\nSection 7(1)(d)(iii) of FOIA exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niii) create a substantial\n\nlikelihood that a person will\n\nbe deprived of a fair trial or impartial hearing[.] \n\nTo demonstrate that records are exempt from disclosure under the corresponding provision in\nFederal FOIA (5 U. S. C. § 552 et seq. (1982 and Supp. 1988)), 3 an agency must establish \"(1) \nthat a trial or adjudication is pending or truly imminent; and (2) that it is more probable than not\nthat disclosure of the material sought would seriously interfere with the fairness of those\nproceedings.\" Washington Post Co. v. U.S. Dep' t of Justice, 863 F. 2d 96, 102 (D. C. Cir. 1988). \nIn accordance with Illinois judicial precedent, the Attorney General has issued a binding opinion\nto ISP concluding that the mere existence of an ongoing investigation that could result\ncriminal charges does not constitute clear and convincing evidence that any records are exempt\nfrom disclosure. \n\nIll. Att' y Gen. Pub. Acc. Op. No. 17- 001, issued March 14, 2017, at 5. \n\nin\n\nISP's assertion of section 7(1)(d)(iii) is largely conclusory. \n\nISP's response to this\n\noffice merely stated that the Appellate Prosecutor's office was in the process of reviewing the\nrequested records to determine the next steps, ifany. ISP has neither demonstrated that a trial or\nadjudication is pending or truly imminent, nor explained how the release of any specific\nrecords— much less all of the records— would create a substantial\nlikelihood that a person would\nbe deprived of a fair trial. Because ISP has not set forth facts demonstrating how the disclosure\nof the withheld records would create a substantial likelihood that a person would be deprived of a\n\nfair trial or an impartial hearing, this office concludes that ISP has not met its burden of\ndemonstrating by clear and convincing evidence that the requested records are exempt from\ndisclosure in their entireties under section 7(1)(d)(iii) of FOIA. \n\nAlthough ISP did not raise any other exemptions in its response to\n\nFOIA request, this office notes that certain discrete portions of the responsive records\n\nthat bear on the rights of third parties contain information that may be properly redacted. \nparticular, private information may be redacted under section 7(1)(b) of FOIA (5 ILCS\n140/ 7(1)(b) (West 2017 Supp.)).' \nIn addition, dates of birth may be properly redacted under\nsection 7(1)(c) ofFOIA5 (5 ILCS 140/ 7(1)(c) (West 2017 Supp.)) and information identifying\nwitnesses who provided information may are exempt\n7(1)(d)(iv) (West 2017 Supp.)). See 11. Att' y Gen. Req. Rev. Ltr. 12887, issued July 20, 2011\nexempting names of public employees who provide information during the course of an\nadministrative investigation of another employee). \n\nfrom disclosure pursuant\n\nto section\n\nIn\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat ISP provide\nwith copies of the requested records, subject only to permissible\nredactions of the records pursuant to section 7 of FOIA (5 ILCS 140/ 7 (West 2016), as amended\nby Public Acts 100- 026, effective August 4, 2017; 100- 201, effective August 18, 2017). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter. \n\nVery truly ours\n\nRIS i ' HER R. BOGGS\n\nAssistant Attorney General\nPublic Access Bureau\n\n52348 f 7ldiii improper pd sa\n\nSection 7(I)(b) exempts from disclosure \" private information,\" which FOIA defines to include\n\npersonal telephone numbers, home addresses, and employee identification numbers. 5 ILCS 140/ 2(c- 5) (West\n2016). \n\nSection 7(1)(c) permits a public body to withhold information that \" would constitute a clearly\n\nunwarranted invasion of personal privacy\" if disclosed. The Attomey General has issued a binding opinion\nconcluding that birth dates are exempt from disclosure pursuant to section 7(1)(c). \n16- 009, issued November 7, 2016, at 12. \n\nIII. Att'y Gen. Pub. Acc. Op. No."}
{"id":909,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-12-04","case_number":null,"request_numbers":["52452"],"title":"Illinois Department of Public Health improperly redacted Staff Intensity Scale scores under 7(1)(i)","filename":"52452, issued December 4, 2018.pdf","rel_path":null,"word_count":2804,"summary":"The requester sought records from the Illinois Department of Public Health regarding oversight of facilities for the developmentally disabled, and the PAC determined the Department improperly redacted specific scoring data.","plain_summary":"A facility requested oversight records from the Illinois Department of Public Health, but the Department redacted scoring information from a Staff Intensity Scale, claiming it was a valuable formula under FOIA. The Illinois Attorney General's Public Access Bureau concluded that the Department improperly redacted the information because the scores do not meet the definition of 'valuable formulae' under section 7(1)(i) of FOIA. The Department failed to meet its burden of proof to justify the redaction.","holding":"The Illinois Department of Public Health failed to meet its burden of proof to justify redacting Staff Intensity Scale scores under section 7(1)(i) of FOIA.","legal_question":"Did the Department of Public Health meet its burden of proof to demonstrate that Staff Intensity Scale scores were exempt from disclosure under section 7(1)(i) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(i)"],"public_body":"Illinois Department of Public Health","requesting_party":"Mr. Jason T. Lundy (on behalf of Golfview Developmental Center)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(i)","subject_description":"The request concerned records related to the Department's oversight of Intermediate Care Facilities for the Developmentally Disabled, specifically Staff Intensity Scale scores.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_i/52452%2C%20issued%20December%204%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["redaction","public health","FOIA exemption","records request"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 4,  2018\n\nVia electronic mail\n\nMr. Jason T.  Lundy\nCounsel\n\nfor Golfview Developmental Center\n\nPolsinelli\n\n150 North Riverside Plaza,  Suite 3000\n\n[street address redacted for site publication -- see original PDF]\njlundy@polsinelli. com\n\nVia electronic mail\n\nMr. William Bryant\n\nActing Freedom of Information Officer\nIllinois Department of Public Health\n\n525- 535 West Jefferson Street\n\nSpringfield,  Illinois 62761- 0001\n\ndph. foia@illinois. gov\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 52452;  IDPH FOIA #  1804314122\n\nDear Mr. Lundy and Mr. Bryant: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons discussed below,  this\noffice concludes that the Illinois Department of Public Health ( Department) \nimproperly redacted\nportions of records in response to Mr. Jason Lundy' s November 6,  2017,  FOIA request. \n\nOn that date,  Mr. Lundy,  on behalf of Golfview Development Center,  submitted a\n10 -part FOIA request to the Department seeking records relating to the Department' s oversight of\nIntermediate Care Facilities for the Developmentally Disabled.  On November 14,  2017,  the\nDepartment responded by asserting that it did not possess records responsive to the request,  and\non January 5,  2018,  Mr. Lundy submitted a Request for Review to this office contesting the\nDepartment' s response to his request:  After this office forwarded Mr. Lundy' s Request for\nReview to the Department,  on January 29,  2018,  the Department notified Mr. Lundy that it had\n\nThat Request\n\nfor Review was assigned the file number 2017 PAC 51123. \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Jason T.  Lundy\nMr.  William Bryant\n\nDecember 4,  2018\n\nPage 2\n\nconducted an additional search and identified a responsive record;  the Department\n\nfurnished that\n\nrecord to Mr.  Lundy with redactions pursuant\ni) \nWest 2017 Supp.)).  On March 30,  2018,  Mr.  Lundy submitted the above - referenced Request\nfor Review contesting the redactions. \n\ni)  of FOIA ( 5 ILCS 140/ 7( 1)(\n\nto section 7( 1)(\n\nOn April 4,  2018,  this office sent a copy of the Request\n\nfor Review to the\nDepartment and asked it to provide an unredacted copy of the responsive records for our\nconfidential review, together with a detailed explanation of its legal and factual bases for\n\nwithholding it.  On April 13,  2018,  the Department provided this office with those records and a\nwritten response.  On April 25,  2018,  this office received Mr.  Lundy' s reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"  5 ILCS\n140/ 1. 2 ( West 2016).  Section 3( a)  of FOIA (5 ILCS 140/ 3( a) ( West 2016))  further provides: \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\"  The exemptions from\n\ndisclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2017 Supp.))  are to be narrowly\nconstrued.  See Lieber v. Board of Trustees ofSouthern Illinois University,  176 Ill. 2d 401,  407\n1997). \n\nThe record at issue is a seven - page document entitled \" Staff Intensity Scale of\n\nMaladaptive Behaviors.\"  Other that the fact that the record furnished to Mr.  Lundy uses roman\nnumerals in its headers,  the unredacted parts of the form are identical\nto the Staff Intensity Scale\nfound at Table B of Section 144 of Title 89 of the Illinois Administrative Code ( 89 I11.  Adm. \n\nCode § 144. Table B ( last amended at 19 Ill.  Reg.  2890,  effective February 22,  1995)).  As\nexplained in Table A of that same section,  the Staff Intensity Scale was designed \" to describe\nbehavior problems which are displayed by children and adults who have developmental\ndisabilities.\"  89 Ill. Adm.  Code § 144. Table A (last amended at 19 Ill. Reg. 2890,  effective\nFebruary 22,  1995).  The scale measures 24 categories of behaviors,  and between one and four\nspecific behaviors are listed within each category.  Table A further explains that the scale can be\nused to rate an individual with developmental disabilities by recording the frequency of the\nobserved behavior so as to inform decision making about allocation of staffing resources.  89 I11. \nAdm.  Code § 144. Table A( a)(\n1995). \nbe displayed in the section where the frequencies of each behavior\n\nIn the version furnished to Mr. Lundy,  the Department redacted information that would\nis recorded. ( The version of\n\n1)( 4) ( last amended at 19 Ill.  Reg.  2890,  effective February 22, \n\nthe scale available in the Administrative Code contains blank lines where the frequencies of each\n\nbehavior would be recorded.) \n\nIn its response to the Request\n\nfor Review,  the Department asserted\n\n\fMr.  Jason T.  Lundy\nMr. William Bryant\n\nDecember 4,  2018\n\nPage 3\n\nthat this record was responsive to the part of the FOIA request seeking scales or tools used by\nsurveyor during an Inspection of Care survey or to prepare the Inspection of Care summary in\nrelation to the determination of the level of specialized care required by residents of a facility\nand/ or the reimbursement rate. \n\nThe Department asserted that the information redacted from the scale consists of\n\nscoring formulas used to complete the Staff Intensity Scale.  The Department\nthis information as the\n\nfurther described\n\nnumbers on the Form used internally by the Department\nevaluate each maladaptive behavior of an individual client.  Based\nupon the frequency of the behavior,  a \" score\"  is calculated which is\nused,  in part,  to formulate the reimbursement\nrate for an individual\nclient that the facility receives and is intended to reimburse the\nfacility for the additional care requirements due to the maladaptive\nbehaviors. 121\n\nto\n\nFor each specific behavior,  if a client engages in that behavior with the frequency listed on the\nscale,  the client' s \" score\"  is increased by the value assigned by the Department for that behavior\nand frequency level. \n\nThe Department\n\nredacted the scores it assigns to each behavior and frequency\n\nlevel pursuant to section 7( 1)(\n\ni)  of FOIA, which exempts from disclosure: \n\nValuable formulae,  computer geographic systems,  designs, \n\ndrawings and research data obtained or produced by any public\nbody when disclosure could reasonably be expected to produce\nprivate gain or public loss.  The exemption for \" computer\ngeographic systems\"  provided in this paragraph ( i)  does not extend\n\nto requests made by news media as defined in Section 2 of this Act\nwhen the requested information is not otherwise exempt and the\nonly purpose of the request is to access and disseminate\ninformation regarding the health,  safety,  welfare,  or legal rights of\nthe general public. \n\nThe Department' s response to this office asserted that the scores redacted from\n\nthe record are a \" valuable formulae\"  because: \n\n2Letter from William Bryant,  Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health,  to Leah Bartelt,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General\nApril\n\n13,  2018),  at 2- 3. \n\n\fMr. Jason T. Lundy\nMr. William Bryant\n\nDecember 4,  2018\n\nPage 4\n\nThe scoring information was developed through the expertise of\nthe Department,  specifically staff knowledgeable of the care of\ndevelopmentally disabled clients,  including individuals with\nmaladaptive behaviors,  and is based upon their technical\n\nknowledge of treatment requirements intended to reduce\n\nmaladaptive behaviors.  Based upon this knowledge and\n\nexperience,  the Department has developed a scoring formula to\nrequired to reduce\napproximate the levels of care and treatment\n\nmaladaptive behaviors and utilizes this numerical formula to\n\nthe additional burdens placed upon a facility to provide\n\nrepresent\nthe required level of care to individuals with maladaptive\nbehaviors and reimburse the facility accordingly. * * * [ T] he\nnumbers associated with each frequency of maladaptive behavior\nare not random or simplistic,  i. e.  1,  2,  3,  4,  rather they reflect a\nrational evaluation of the severity of the behaviors which reflect a\nhigher number\nbehaviors21\n\nfor the more frequent and potentially harmful\n\nThe phrase \" valuable formulae\"  is not defined in FOIA.  Therefore, we look to the\n\nprinciples of statutory construction.  When construing a statute,  the primary purpose is to\nascertain and give effect to the intent of the General Assembly.  Southern Illinoisan v. Illinois\nDepartment of Public Health,  218 Ill.  2d 390,  415,  844 N. E. 2d 1,  14 ( 2006). \" The best evidence\nof legislative intent is the language used in the statute itself, which must be given its plain, \nordinary and popularly understood meaning.\"  Nelson v. Kendall County,  2014 IL 116303, ¶ 23, \n10 N. E. 3d 893,  988 ( 2014).  When a term is undefined in a statute,  it is entirely appropriate to\nuse a dictionary to help determine its meaning.  Lacey v.  Village of Palatine,  232 Ill. 2d 349,  363, \n904 N. E. 2d 18,  26 ( 2009). \"[ W] here two words or phrases of analogous meaning are employed\ntogether in a statute,  they are understood to be used in their cognate sense,  to express the same\nrelations,  and give color and expression to each other.\"  Environmental Protection Agency v. \nPollution Control Board,  186 I11.  App.  3d 995,  999 ( 5th Dist.  1989). \n\nThe dictionary definition of \"formula\"  is \" a general fact, rule,  or principle\nexpressed in usually mathematical symbols\"  and \" a group of symbols ( such as letters and\nnumbers)  associated to express facts or data ( such as the number and kinds of teeth in the jaw) \n\nLetter from William Bryant,  Acting Freedom of Information Officer,  Illinois Department of\n\nPublic Health,  to Leah Bartelt,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General, \nApril 13,  2018),  at 2. \n\n\fMr. Jason T.  Lundy\nMr. William Bryant\n\nDecember 4,  2018\n\nPage 5\n\n4\n\nconcisely[.]\"\n\nIn Binding Opinion 14- 016,  the Attorney General determined that the phrase\nvaluable formulae\"  should be \" read in context with the rest of the exemption for ' computer\ngeographic systems,  designs,  drawings and research data',\"  and that in doing so,  it is clear \" that\nthe General Assembly intended ' valuable formulae'  to mean something technical\n\nin nature,. \n\nsimilar\n\nto ' computer geographic systems'  or ' research data.\" \n\nI11.  Att' y Gen.  Pub.  Acc.  Op.  No. \n\n14- 016, issued December 2,  2014,  at 9. \n\nAlthough the scores the Department has assigned to each behavior are meant\n\nto\n\nrepresent the additional burden of caring for a client exhibiting those behaviors, the scores\nthemselves do not meet the definition of \"formula\"  because they merely set forth assigned values\nrather than the rule or principle used to calculate those values.  Even accepting the Department' s\nassertion that the assigned scores are \" technical in nature\"  because they are based on experience\nand technical knowledge,  the scores are still not \" research data.\" \" Research\"  is defined as: \n\nSerious study of a subject with the purpose of acquiring more knowledge,  discovering new\nfacts,  or testing new ideas[ ]\"  or \"[ t] he activity of finding information that one needs to answer a\nquestion or solve a problem.\"  Black' s Law Dictionary ( 14th ed.  2014),  available at Westlaw\nBLACKS.  Although the scores may be derived from an analysis of what could arguably— based\non the Department' s explanation— be considered observational and experiential data compiled\nduring \" research,\"  the scores themselves are not \" research data \" \n\nFurthermore, the Department explained that the scores for each client are used,  in\npart,  to \" formulate the reimbursement rate for an individual client that the facility receives and is\nintended to reimburse the facility for the additional care requirements due to the maladaptive\nbehaviors.\" 5 However,  the information redacted from the record does not include any formula\nthat incorporates the client' s score with other factors to calculate the reimbursement rate. \nAccordingly,  based on this office' s review of the record itself and the explanation provided by\nthe Department,  the scores redacted from the Staff Intensity Scale do not constitute \" valuable\nformulae,\"  as that phrase is used in section 7( 1) 0)  of FOIA. \n\nEven if the scores could be considered valuable formulae,  they are only exempt\nfrom disclosure under section 7( 1) 0)  if the Department demonstrates by clear and convincing\nevidence that \" disclosure could reasonably be expected to produce private gain or public loss.\"  5\nILCS 140/ 7( 1)(\n\nIn its response to this office, the Department asserted: \n\ni) ( West 2017 Supp.). \n\nvisited October 2,  2018). \n\nSee Formula, Merriam -Webster, https:// www.merriam- webster.com/ dictionary/ formula ( last\n\n5Letter from William Bryant,  Acting Freedom of Information Officer,  Illinois Department of\n\nPublic Health,  to Leah Bartelt,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General,  at\n1- 2 ( April\n\n13,  2018). \n\n\fMr.  Jason T.  Lundy\nMr.  William Bryant\n\nDecember 4,  2018\n\nPage 6\n\nThe release of the scoring information is reasonably\nexpected to provide a private gain to facilities in possession of the\ninformation by potentially permitting the facility to reduce their\ncosts by not providing appropriate care to individuals exhibiting\nmaladaptive behaviors which do not increase the reimbursement\n\nrate. * * * \n\nAn unscrupulous facility may not direct the appropriate\n\nresources to treat a zero or low scoring behavior knowing that their\ntreatment will not be reimbursed despite the treatment still being a\n\nrequirement. \n\nAlternatively,  release of the scoring information may\n\nprovide an incentive for unscrupulous facilities to overstate the\noccurrences of higher scoring behaviors in an effort to receive a\nThat]  result can occur by a\nhigher rate of reimbursement. * * * [\nfacility instructing staff to more intensely observe clients for the\nbehaviors identified as high scoring or creatively charting incidents\nto fit the descriptions on the Form corresponding to high scoring\nbehaviors. 161\n\nfurther argued that this potential conduct by facilities could result in \" public\n\nThe Department\nloss\"  due to inappropriately high reimbursement\nexhibit behaviors that do not score highly on the scale. \n\nrates,  or facilities refusing to accept clients who\n\nIn reply,  Mr. Lundy argues that Department cannot rely on the assumption that a\nfacility caring for these clients \" would ignore its regulatory and statutory obligations, jeopardize\nits licensure and risk the imposition of remedies for the sole basis of receiving a higher\nreimbursement rate,\"  and presume that a facility would be able to estimate a potential client's\nscore\"  prior to beginning to care for a client, such that it could accurately reject those clients\nwith lower scores. \n\nThe Department has not met its burden of demonstrating that \" disclosure could\n\nreasonably be expected to produce private gain or public loss.\"  The Department has not\ndemonstrated that the scores have inherent value to someone who obtains them,  unlike a\n\nLetter from William Bryant,  Acting Freedom of Information Officer,  Illinois Department of\n\nPublic Health,  to Leah Bartelt,  Assistant Attorney General,  Public Access Bureau, Office of the Attorney General,  at\n2 ( April 13,  2018). \n\nBureau,  Office of the Attorney General,  at 2 ( April 25,  2018). \n\nLetter from Jason Lundy, Polsinelli,  to Leah Bartell, Assistant Attorney General,  Public Access\n\n\fr. Jason T.  Lundy\nMr. William Bryant\n\nDecember 4,  2018\n\nPage 7\n\nconfidential formula for a pharmaceutical or food additive.  Instead,  it is not only the scores,  but\nalso the willingness of an \" unscrupulous\"  facility to misuse that information to its financial\nadvantage,  that could result in private gain or public loss.  The Illinois Supreme Court has stated\nthat the exemptions from disclosure are to be narrowly construed.  See Lieber v.  Board of\nTrustees of Southern Illinois University,  176 Ill.  2d 401,  407 ( 1997).  The Department' s argument\nis too speculative to satisfy its burden to demonstrate reasonable expectation of private gain or\npublic loss. \n\nAccordingly,  the Department did not sustain its burden of demonstrating by clear\nand convincing evidence that the withheld scores are exempt from disclosure pursuant to section\n7( 1)(\ni)  of FOIA.  This office requests that the Department provide Mr. Lundy with an unredacted\ncopy of the responsive Staff Intensity Scale. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  If you have questions,  you may contact me at\n312)  814- 6437 or Ibartelt@atg. state. il.us.  This letter serves to close this matter. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n52452 f 71i improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Staff Intensity Scale scores for intermediate care facilities","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52452/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 4, 2018\n\nVia electronic mail\n\nMr. Jason T. Lundy\nCounsel\n\nfor Golfview Developmental Center\n\nPolsinelli\n\n150 North Riverside Plaza, Suite 3000\n\n[street address redacted for site publication -- see original PDF]\njlundy@polsinelli. com\n\nVia electronic mail\n\nMr. William Bryant\n\nActing Freedom of Information Officer\nIllinois Department of Public Health\n\n525- 535 West Jefferson Street\n\nSpringfield, Illinois 62761- 0001\n\ndph. foia@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52452; IDPH FOIA # 1804314122\n\nDear Mr. Lundy and Mr. Bryant: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons discussed below, this\noffice concludes that the Illinois Department of Public Health (Department) \nimproperly redacted\nportions of records in response to Mr. Jason Lundy's November 6, 2017, FOIA request. \n\nOn that date, Mr. Lundy, on behalf of Golfview Development Center, submitted a\n10 -part FOIA request to the Department seeking records relating to the Department's oversight of\nIntermediate Care Facilities for the Developmentally Disabled. On November 14, 2017, the\nDepartment responded by asserting that it did not possess records responsive to the request, and\non January 5, 2018, Mr. Lundy submitted a Request for Review to this office contesting the\nDepartment's response to his request: After this office forwarded Mr. Lundy's Request for\nReview to the Department, on January 29, 2018, the Department notified Mr. Lundy that it had\n\nThat Request\n\nfor Review was assigned the file number 2017 PAC 51123. \n\nconducted an additional search and identified a responsive record; the Department\n\nfurnished that\n\nrecord to Mr. Lundy with redactions pursuant\ni) \nWest 2017 Supp.)). On March 30, 2018, Mr. Lundy submitted the above - referenced Request\nfor Review contesting the redactions. \n\ni) of FOIA (5 ILCS 140/ 7(1)(to section 7(1)(On April 4, 2018, this office sent a copy of the Request\n\nfor Review to the\nDepartment and asked it to provide an unredacted copy of the responsive records for our\nconfidential review, together with a detailed explanation of its legal and factual bases for\n\nwithholding it. On April 13, 2018, the Department provided this office with those records and a\nwritten response. On April 25, 2018, this office received Mr. Lundy's reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2016)) further provides: \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\" The exemptions from\n\ndisclosure contained in section 7 of FOIA (5 ILCS 140/ 7 (West 2017 Supp.)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 407\n1997). \n\nThe record at issue is a seven - page document entitled \" Staff Intensity Scale of\n\nMaladaptive Behaviors.\" Other that the fact that the record furnished to Mr. Lundy uses roman\nnumerals in its headers, the unredacted parts of the form are identical\nto the Staff Intensity Scale\nfound at Table B of Section 144 of Title 89 of the Illinois Administrative Code (89 I11. Adm. \n\nCode § 144. Table B (last amended at 19 Ill. Reg. 2890, effective February 22, 1995)). As\nexplained in Table A of that same section, the Staff Intensity Scale was designed \" to describe\nbehavior problems which are displayed by children and adults who have developmental\ndisabilities.\" 89 Ill. Adm. Code § 144. Table A (last amended at 19 Ill. Reg. 2890, effective\nFebruary 22, 1995). The scale measures 24 categories of behaviors, and between one and four\nspecific behaviors are listed within each category. Table A further explains that the scale can be\nused to rate an individual with developmental disabilities by recording the frequency of the\nobserved behavior so as to inform decision making about allocation of staffing resources. 89 I11. \nAdm. Code § 144. Table A(a)(1995). \nbe displayed in the section where the frequencies of each behavior\n\nIn the version furnished to Mr. Lundy, the Department redacted information that would\nis recorded. (The version of\n\n1)(4) (last amended at 19 Ill. Reg. 2890, effective February 22, \n\nthe scale available in the Administrative Code contains blank lines where the frequencies of each\n\nthat this record was responsive to the part of the FOIA request seeking scales or tools used by\nsurveyor during an Inspection of Care survey or to prepare the Inspection of Care summary in\nrelation to the determination of the level of specialized care required by residents of a facility\nand/ or the reimbursement rate. \n\nThe Department asserted that the information redacted from the scale consists of\n\nscoring formulas used to complete the Staff Intensity Scale. The Department\nthis information as the\n\nfurther described\n\nnumbers on the Form used internally by the Department\nevaluate each maladaptive behavior of an individual client. Based\nupon the frequency of the behavior, a \" score\" is calculated which is\nused, in part, to formulate the reimbursement\nrate for an individual\nclient that the facility receives and is intended to reimburse the\nfacility for the additional care requirements due to the maladaptive\nbehaviors. 121\n\nto\n\nFor each specific behavior, if a client engages in that behavior with the frequency listed on the\nscale, the client's \" score\" is increased by the value assigned by the Department for that behavior\nand frequency level. \n\nThe Department\n\nredacted the scores it assigns to each behavior and frequency\n\nlevel pursuant to section 7(1)(i) of FOIA, which exempts from disclosure: \n\nValuable formulae, computer geographic systems, designs, \n\ndrawings and research data obtained or produced by any public\nbody when disclosure could reasonably be expected to produce\nprivate gain or public loss. The exemption for \" computer\ngeographic systems\" provided in this paragraph (i) does not extend\n\nto requests made by news media as defined in Section 2 of this Act\nwhen the requested information is not otherwise exempt and the\nonly purpose of the request is to access and disseminate\ninformation regarding the health, safety, welfare, or legal rights of\nthe general public. \n\nThe Department's response to this office asserted that the scores redacted from\n\nthe record are a \" valuable formulae\" because: \n\n2 Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General\n\nThe scoring information was developed through the expertise of\nthe Department, specifically staff knowledgeable of the care of\ndevelopmentally disabled clients, including individuals with\nmaladaptive behaviors, and is based upon their technical\n\nknowledge of treatment requirements intended to reduce\n\nmaladaptive behaviors. Based upon this knowledge and\n\nexperience, the Department has developed a scoring formula to\nrequired to reduce\napproximate the levels of care and treatment\n\nmaladaptive behaviors and utilizes this numerical formula to\n\nthe additional burdens placed upon a facility to provide\n\nrepresent\nthe required level of care to individuals with maladaptive\nbehaviors and reimburse the facility accordingly. * * * [ T] he\nnumbers associated with each frequency of maladaptive behavior\nare not random or simplistic, i. e. 1, 2, 3, 4, rather they reflect a\nrational evaluation of the severity of the behaviors which reflect a\nhigher number\nbehaviors21\n\nfor the more frequent and potentially harmful\n\nThe phrase \" valuable formulae\" is not defined in FOIA. Therefore, we look to the\n\nprinciples of statutory construction. When construing a statute, the primary purpose is to\nascertain and give effect to the intent of the General Assembly. Southern Illinoisan v. Illinois\nDepartment of Public Health, 218 Ill. 2d 390, 415, 844 N. E. 2d 1, 14 (2006). \" The best evidence\nof legislative intent is the language used in the statute itself, which must be given its plain, \nordinary and popularly understood meaning.\" Nelson v. Kendall County, 2014 IL 116303, ¶ 23, \n10 N. E. 3d 893, 988 (2014). When a term is undefined in a statute, it is entirely appropriate to\nuse a dictionary to help determine its meaning. Lacey v. Village of Palatine, 232 Ill. 2d 349, 363, \n904 N. E. 2d 18, 26 (2009). \"[ W] here two words or phrases of analogous meaning are employed\ntogether in a statute, they are understood to be used in their cognate sense, to express the same\nrelations, and give color and expression to each other.\" Environmental Protection Agency v. \nPollution Control Board, 186 I11. App. 3d 995, 999 (5th Dist. 1989). \n\nThe dictionary definition of \"formula\" is \" a general fact, rule, or principle\nexpressed in usually mathematical symbols\" and \" a group of symbols (such as letters and\nnumbers) associated to express facts or data (such as the number and kinds of teeth in the jaw) \n\nLetter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, \n\n4\n\nconcisely[.]\"\n\nIn Binding Opinion 14- 016, the Attorney General determined that the phrase\nvaluable formulae\" should be \" read in context with the rest of the exemption for ' computer\ngeographic systems, designs, drawings and research data',\" and that in doing so, it is clear \" that\nthe General Assembly intended ' valuable formulae' to mean something technical\n\nin nature,. \n\nsimilar\n\nto ' computer geographic systems' or ' research data.\" \n\nI11. Att' y Gen. Pub. Acc. Op. No. \n\n14- 016, issued December 2, 2014, at 9. \n\nAlthough the scores the Department has assigned to each behavior are meant\n\nto\n\nrepresent the additional burden of caring for a client exhibiting those behaviors, the scores\nthemselves do not meet the definition of \"formula\" because they merely set forth assigned values\nrather than the rule or principle used to calculate those values. Even accepting the Department's\nassertion that the assigned scores are \" technical in nature\" because they are based on experience\nand technical knowledge, the scores are still not \" research data.\" \" Research\" is defined as: \n\nSerious study of a subject with the purpose of acquiring more knowledge, discovering new\nfacts, or testing new ideas[ ]\" or \"[ t] he activity of finding information that one needs to answer a\nquestion or solve a problem.\" Black's Law Dictionary (14th ed. 2014), available at Westlaw\nBLACKS. Although the scores may be derived from an analysis of what could arguably— based\non the Department's explanation— be considered observational and experiential data compiled\nduring \" research,\" the scores themselves are not \" research data \" \n\nFurthermore, the Department explained that the scores for each client are used, in\npart, to \" formulate the reimbursement rate for an individual client that the facility receives and is\nintended to reimburse the facility for the additional care requirements due to the maladaptive\nbehaviors.\" 5 However, the information redacted from the record does not include any formula\nthat incorporates the client's score with other factors to calculate the reimbursement rate. \nAccordingly, based on this office's review of the record itself and the explanation provided by\nthe Department, the scores redacted from the Staff Intensity Scale do not constitute \" valuable\nformulae,\" as that phrase is used in section 7(1) 0) of FOIA. \n\nEven if the scores could be considered valuable formulae, they are only exempt\nfrom disclosure under section 7(1) 0) if the Department demonstrates by clear and convincing\nevidence that \" disclosure could reasonably be expected to produce private gain or public loss.\" 5\nILCS 140/ 7(1)(In its response to this office, the Department asserted: \n\ni) (West 2017 Supp.). \n\nvisited October 2, 2018). \n\nSee Formula, Merriam -Webster, https:// www.merriam- webster.com/ dictionary/ formula (last\n\n5 Letter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at\n\nThe release of the scoring information is reasonably\nexpected to provide a private gain to facilities in possession of the\ninformation by potentially permitting the facility to reduce their\ncosts by not providing appropriate care to individuals exhibiting\nmaladaptive behaviors which do not increase the reimbursement\n\nrate. * * * \n\nAn unscrupulous facility may not direct the appropriate\n\nresources to treat a zero or low scoring behavior knowing that their\ntreatment will not be reimbursed despite the treatment still being a\n\nrequirement. \n\nAlternatively, release of the scoring information may\n\nprovide an incentive for unscrupulous facilities to overstate the\noccurrences of higher scoring behaviors in an effort to receive a\nThat] result can occur by a\nhigher rate of reimbursement. * * * [\nfacility instructing staff to more intensely observe clients for the\nbehaviors identified as high scoring or creatively charting incidents\nto fit the descriptions on the Form corresponding to high scoring\nbehaviors. 161\n\nfurther argued that this potential conduct by facilities could result in \" public\n\nThe Department\nloss\" due to inappropriately high reimbursement\nexhibit behaviors that do not score highly on the scale. \n\nrates, or facilities refusing to accept clients who\n\nIn reply, Mr. Lundy argues that Department cannot rely on the assumption that a\nfacility caring for these clients \" would ignore its regulatory and statutory obligations, jeopardize\nits licensure and risk the imposition of remedies for the sole basis of receiving a higher\nreimbursement rate,\" and presume that a facility would be able to estimate a potential client's\nscore\" prior to beginning to care for a client, such that it could accurately reject those clients\nwith lower scores. \n\nThe Department has not met its burden of demonstrating that \" disclosure could\n\nreasonably be expected to produce private gain or public loss.\" The Department has not\ndemonstrated that the scores have inherent value to someone who obtains them, unlike a\n\nLetter from William Bryant, Acting Freedom of Information Officer, Illinois Department of\n\nPublic Health, to Leah Bartelt, Assistant Attorney General, Public Access Bureau, Office of the Attorney General, at\n2 (April 13, 2018). \n\nBureau, Office of the Attorney General, at 2 (April 25, 2018). \n\nLetter from Jason Lundy, Polsinelli, to Leah Bartell, Assistant Attorney General, Public Access\n\nconfidential formula for a pharmaceutical or food additive. Instead, it is not only the scores, but\nalso the willingness of an \" unscrupulous\" facility to misuse that information to its financial\nadvantage, that could result in private gain or public loss. The Illinois Supreme Court has stated\nthat the exemptions from disclosure are to be narrowly construed. See Lieber v. Board of\nTrustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). The Department's argument\nis too speculative to satisfy its burden to demonstrate reasonable expectation of private gain or\npublic loss. \n\nAccordingly, the Department did not sustain its burden of demonstrating by clear\nand convincing evidence that the withheld scores are exempt from disclosure pursuant to section\n7(1)(i) of FOIA. This office requests that the Department provide Mr. Lundy with an unredacted\ncopy of the responsive Staff Intensity Scale. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have questions, you may contact me at\n312) 814- 6437 or Ibartelt@atg. state. il.us. This letter serves to close this matter. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n52452 f 71i improper sa"}
{"id":910,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-04-24","case_number":null,"request_numbers":["52595"],"title":"Village of Matteson closed no further action on voluminous financial records request","filename":"52595, issued April 24, 2018.pdf","rel_path":null,"word_count":1703,"summary":"The requester sought various financial and contract records from the Village of Matteson, and the PAC determined that no further action was warranted regarding the Village's handling of the requests.","plain_summary":"A citizen requested detailed financial and contract records from the Village of Matteson. The Attorney General's office reviewed the matter and decided that no further action was necessary, effectively closing the case without finding a violation.","holding":"The Public Access Counselor concluded that no further action is warranted regarding the requester's complaint.","legal_question":"Whether the Village of Matteson complied with FOIA in its response to the requester's voluminous requests for financial and contract records.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3.6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Matteson","requesting_party":"Mr. [Name Redacted]","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"fees","subject_description":"The request concerned demolition contract details and detailed account payable transactions from business district tax funds.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_h/52595%2C%20issued%20April%2024%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["voluminous request","financial records","contract records","FOIA procedure"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 24,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 52595\n\nDear Mr. \n\nThis determination is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons set forth below,  the\nPublic Access Bureau concludes that no further action is warranted. \n\nOn March 28,  2018,  you submitted five separate FOIA requests to the Village of\n\nMatteson ( Village)  seeking: \n\n1. 1 Contract details for the demolition on Lincoln Mall and who was\n\nawarded the contract and who won the bid for the contract;  Was the\n\nfor the work completed and was that the company that was\n\ncontract appropriately bid on;  Who and what companies received\npayment\napproved for the contract\ncompletion of the demolition and from what fund was it dispersed. \nProject scope and projected costs versus actual cost[.] llI\n\ninitially;  the total amount paid for the\n\n2.]  All of the individual account payable recipients and the transactions\nrecorded for every amount paid from every business district tax fund\nwithin the Village of Matteson for every year from the year 2010 through\n2018.  And the detailed reason for each transaction. r21\n\nby\n\nby\n\nFreedom of Information Act ( FOIA)  Request\n\nto Angela Simington,  Chief FOIA Officer,  signed\n\nMarch 28,  2018). \n\n2Freedom of Information Act ( FOIA)  Request\n\nto Angela Simington,  Chief FOIA Officer,  signed\n\nMarch 28,  2018). \n\n500 South Second Street,  Springfield, \nFax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312)  814-3000 •  TTY: ( 312)  814- 3374 •  Fax: (312)  814- 3806\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n217)  782- 1090 •  TTY: ( 217)  785- 2771 • \n\nIllinois 62701 • (\n\n\fApril 24,  2018\n\nPage 2\n\n3.]  All Village of Matteson individual TIF districts funds expenditures and\ntheir recipients for each individual year from the year 2005 until 2018. \nAnd what economic growth project was each transaction associated with\nand the project details for said project[.]\n\n131\n\n4.]  All account receivables from the recording of the bond debt sale\n\ntransaction or any other transactions between the Village of Matteson\nand Cal Atlantic Builders and/ or Ryland Homes covering the years 2014\nto 2018;  and the contract agreement details and payables from the\nV] illage of Matteson to Ryland Homes and/ or Cal Atlantic for that same\ntime period 2014 to 2018[.] 141\n\n5.]  A complete organizational structure chart vertical and horizontal\nwith hierarchy and reporting structure. [ I] n addition the salaries\nassociated with every position and person within the requested reporting\nstructure.  Also,  the individual organizational units and their job\ndescriptions. 151\n\nlevels\n\nOn April 4,  2018,  the Village responded by designating your FOIA requests as voluminous\n\npursuant\n\nto section 3. 6 of FOIA ( 5 ILCS 140/ 3. 6 ( West 2016)).  The Village stated that your\n\nrequests included a combination of individual\ncategories of records in a period of 20 business days.  The Village notified you that you may\namend your requests so that they are no longer voluminous requests.  On April 10,  2018,  the\nPublic Access Bureau received your Request for Review contesting the Village' s designation of\nyour FOIA requests as voluminous requests. \n\nrequests that total more than five different\n\nSection 2( h)  of FOIA ( 5 ILCS 140/ 2( h) ( West 2016))  defines a \" voluminous\n\nrequest\"  as: \n\nby\n\nby\n\nby\n\n3Freedom of Information Act (FOIA)  Request to Angela Simington,  Chief FOIA Officer, signed\n\nMarch 28,  2018). \n\nFreedom of Information Act (FOIA)  Request to Angela Simington, Chief FOIA Officer, signed\n\nMarch 28,  2018). \n\n5Freedom of Information Act (FOIA) Request to Angela Simington,  Chief FOIA Officer, signed\n\nMarch 28,  2018). \n\n\fApril 24,  2018\n\nPage 3\n\nA]  request that: ( i)  includes more than 5 individual\n\nrequests for more than 5 different categories of records or a\n\ncombination of individual requests that total requests for more than\n\n5 different categories of records in a period of 20 business days;  or\n\nii)  requires the compilation of more than 500 letter or legal -sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \" Single requested record\"  may include,  but is not\nlimited to,  one report,  form,  e- mail,  letter,  memorandum,  book, \n\nmap,  microfilm, tape, or recording. \n\nWhen construing a statute,  the primary purpose is to ascertain and give effect to the intent of the\nGeneral Assembly.  Southern Illinoisan v. Illinois Department of Public Health,  218 Ill. 2d 390, \n415,  844 N. E. 2d 1,  14 ( 2006). \" The best evidence of legislative intent is the language used in the\nstatute itself, which must be given its plain, ordinary and popularly understood meaning.\" \nNelson v. Kendall County, 2014 IL 116303, ¶ 23,  10 N.E. 3d 893,  988 ( 2014).  When a term is\nundefined in a statute,  it is entirely appropriate to use a dictionary to help determine its meaning. \nLacey v.  Village of Palatine,  232 111.  2d 349,  363,  904 N. E. 2d 18,  26 ( 2009).  FOIA does not\ndefine \" categories of records,\"  but Webster' s Third New International Dictionary defines\ncategory\"  as \" a class,  group,  or classification of any kind[.]\"  Webster' s Third New International\nDictionary 352 ( 1993). \n\ntaken together, the five requests you submitted on March 28,  2018, \" include[]  a combination of\n\nHere, the Village designated your requests as voluminous by contending that, \n\nindividual\n\nrequests that total requests\n\nfor more than 5'  different categories of records[.]\"  Based\n\non this office' s review of your March 28,  2018,  FOIA requests,  you seek more than five\n\ncategories of records.  Specifically,  your first request seeks at least three categories of records: \n1)  details regarding the contract to demolish Lincoln Mall; ( 2)  information regarding the\nbidding process for that project;  and ( 3)  the project' s cost records,  including records to show all\ncompanies that received payment for work on the project, information on the total funds paid for\nthe project,  and projected and actual costs. 6 Your second request seeks records in the category of\ntransaction details for amounts paid from every business district tax fund within the Village for a\ncertain period of time.  Your third request seeks two categories of information: ( 1) \n\nthe\n\ntransactional\ninformation pertaining to TIF districts;  and ( 2)  details regarding the economic\ngrowth project associated with each TIF district.  Your fourth request seeks not only ( 1)  the\ntransactions between the Village of Matteson and Cali Atlantic Builders and/ or RylandiHomes for\n\na period of time, but also ( 2)  the \" contract agreement details and payables from\"  the Village and\n\nthe remainder of your request,  it might seek additional categories of requests. \n\n6As noted by the Village,  portions of your first request are vague.  Depending on the meaning of\n\nby\n\nMarch 28,  2018). \n\nFreedom of Information Act ( FOIA)  Request\n\nto Angela Simington,  Chief FOIA Officer,  signed\n\n\fApril 24,  2018\n\nPage 4\n\nRyland Homes and/ or Cal Atlantic for that same time period.  Your fifth request sought: ( 1) \norganizational charts; ( 2)  salary information for employees within the reporting structure;  and, \n3)  job descriptions for those employees.  In sum,  your five requests included requests for at least\n11 categories of information. \n\nBecause your five requests sought more than five different categories of records\n\nwithin a period of 20 business days, this office concludes that the Village did not improperly\ndesignate your requests as voluminous requests.  Accordingly,  you had ten business days,  until\nApril 18,  2018,  to amend the requests in such a way that the Village would no longer treat the\nrequest as a voluminous request. 8 The Village would then have had five business days to\nrespond,  or, if you did not amend your request,  it must respond by April 25,  2018.  If you wish to\nfile a Request for Review of the Village's substantive response to your request, you may do so\nnot later than 60 days after the date of' the response.  5 ILCS 140/ 9. 5( a) ( West 2016). \n\nFor the reasons stated above, this office has determined that no further action is\n\nwarranted as to this matter.  If you have questions,  you may contact me at ( 217)  524- 7958 or\nLHarter@atg. state. il.us.  This letter serves to close this matter. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n52595 f no ft war mun\n\nis sent to amend the request\n\nSection 3. 6 of FOIA sets forth the process for complying with or denying a voluminous request. \nOnce a public body designates a requester as a voluminous requester, the requester has \" 10 business days from the\ndate the public body' s response * * * \nthe public body will no longer\ntreat the request as a voluminous request.\"  5 ILCS 140/ 3. 6( b) ( West 2016).  If the requester responds to the public\nbody and the request continues to be voluminous or the requester\nfails to respond to the public body within the 10\nday period,  the public body is required to \" respond within the earlier of 5 business days after it receives the response\nfrom the requester or 5 business days after the final day for the requester to respond to the public body' s\nvoluminous request]  notification.\"  5 ILCS 140/ 3. 6( c) ( West 2016).  The public body' s response shall \"( i)  provide\nan estimate of the fees to be charged,  which the public body may require the person to pay in full before copying the\nto one or more of the exemptions set out in this Act; ( iii) notify\nrequested documents; ( ii)  deny the request pursuant\nto reduce\nthe requester that the request\nthe request\n\nis unduly burdensome and extend an opportunity to the requester\n\nto manageable proportions;  or ( iv) provide the records requested.\" \n\nin such a way that\n\nto attempt\n\n5 ILCS 140/ 3. 6( c) ( West 2016). \n\n\fApril 24,  2018\n\nPage 5\n\nMs.  Angela Simington\nFOIA Officer\nVillage of Matteson\n4900 Village Commons\n\nMatteson,  Illinois 60443\n\nasimington@villageofinetteson.\n\norg\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Demolition contract details and account payable transactions from business district tax funds","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52595/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 24, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52595\n\nDear Mr. \n\nThis determination is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted. \n\nOn March 28, 2018, you submitted five separate FOIA requests to the Village of\n\nMatteson (Village) seeking: \n\n1. 1 Contract details for the demolition on Lincoln Mall and who was\n\nawarded the contract and who won the bid for the contract; Was the\n\nfor the work completed and was that the company that was\n\ncontract appropriately bid on; Who and what companies received\npayment\napproved for the contract\ncompletion of the demolition and from what fund was it dispersed. \nProject scope and projected costs versus actual cost[.] llI\n\ninitially; the total amount paid for the\n\n2.] All of the individual account payable recipients and the transactions\nrecorded for every amount paid from every business district tax fund\nwithin the Village of Matteson for every year from the year 2010 through\n2018. And the detailed reason for each transaction. r21\n\nby\n\nby\n\nFreedom of Information Act (FOIA) Request\n\nto Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\n2 Freedom of Information Act (FOIA) Request\n\nto Angela Simington, Chief FOIA Officer, signed\n\nMarch 28, 2018). \n\n3.] All Village of Matteson individual TIF districts funds expenditures and\ntheir recipients for each individual year from the year 2005 until 2018. \nAnd what economic growth project was each transaction associated with\nand the project details for said project[.]\n\n131\n\n4.] All account receivables from the recording of the bond debt sale\n\ntransaction or any other transactions between the Village of Matteson\nand Cal Atlantic Builders and/ or Ryland Homes covering the years 2014\nto 2018; and the contract agreement details and payables from the\nV] illage of Matteson to Ryland Homes and/ or Cal Atlantic for that same\ntime period 2014 to 2018[.] 141\n\n5.] A complete organizational structure chart vertical and horizontal\nwith hierarchy and reporting structure. [ I] n addition the salaries\nassociated with every position and person within the requested reporting\nstructure. Also, the individual organizational units and their job\ndescriptions. 151\n\nlevels\n\nOn April 4, 2018, the Village responded by designating your FOIA requests as voluminous\n\npursuant\n\nto section 3. 6 of FOIA (5 ILCS 140/ 3. 6 (West 2016)). The Village stated that your\n\nrequests included a combination of individual\ncategories of records in a period of 20 business days. The Village notified you that you may\namend your requests so that they are no longer voluminous requests. On April 10, 2018, the\nPublic Access Bureau received your Request for Review contesting the Village's designation of\nyour FOIA requests as voluminous requests. \n\nrequests that total more than five different\n\nSection 2(h) of FOIA (5 ILCS 140/ 2(h) (West 2016)) defines a \" voluminous\n\nrequest\" as: \n\nby\n\nby\n\nby\n\nA] request that: (i) includes more than 5 individual\n\nrequests for more than 5 different categories of records or a\n\ncombination of individual requests that total requests for more than\n\n5 different categories of records in a period of 20 business days; or\n\nii) requires the compilation of more than 500 letter or legal -sized\n\npages of public records unless a single requested record exceeds\n\n500 pages. \" Single requested record\" may include, but is not\nlimited to, one report, form, e- mail, letter, memorandum, book, \n\nmap, microfilm, tape, or recording. \n\nWhen construing a statute, the primary purpose is to ascertain and give effect to the intent of the\nGeneral Assembly. Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, \n415, 844 N. E. 2d 1, 14 (2006). \" The best evidence of legislative intent is the language used in the\nstatute itself, which must be given its plain, ordinary and popularly understood meaning.\" \nNelson v. Kendall County, 2014 IL 116303, ¶ 23, 10 N.E. 3d 893, 988 (2014). When a term is\nundefined in a statute, it is entirely appropriate to use a dictionary to help determine its meaning. \nLacey v. Village of Palatine, 232 111. 2d 349, 363, 904 N. E. 2d 18, 26 (2009). FOIA does not\ndefine \" categories of records,\" but Webster's Third New International Dictionary defines\ncategory\" as \" a class, group, or classification of any kind[.]\" Webster's Third New International\nDictionary 352 (1993). \n\ntaken together, the five requests you submitted on March 28, 2018, \" include[] a combination of\n\nHere, the Village designated your requests as voluminous by contending that, \n\nindividual\n\nrequests that total requests\n\nfor more than 5' different categories of records[.]\" Based\n\non this office's review of your March 28, 2018, FOIA requests, you seek more than five\n\ncategories of records. Specifically, your first request seeks at least three categories of records: \n1) details regarding the contract to demolish Lincoln Mall; (2) information regarding the\nbidding process for that project; and (3) the project's cost records, including records to show all\ncompanies that received payment for work on the project, information on the total funds paid for\nthe project, and projected and actual costs. 6 Your second request seeks records in the category of\ntransaction details for amounts paid from every business district tax fund within the Village for a\ncertain period of time. Your third request seeks two categories of information: (1) \n\nthe\n\ntransactional\ninformation pertaining to TIF districts; and (2) details regarding the economic\ngrowth project associated with each TIF district. Your fourth request seeks not only (1) the\ntransactions between the Village of Matteson and Cali Atlantic Builders and/ or RylandiHomes for\n\na period of time, but also (2) the \" contract agreement details and payables from\" the Village and\n\nthe remainder of your request, it might seek additional categories of requests. \n\n6 As noted by the Village, portions of your first request are vague. Depending on the meaning of\n\nRyland Homes and/ or Cal Atlantic for that same time period. Your fifth request sought: (1) \norganizational charts; (2) salary information for employees within the reporting structure; and, \n3) job descriptions for those employees. In sum, your five requests included requests for at least\n11 categories of information. \n\nBecause your five requests sought more than five different categories of records\n\nwithin a period of 20 business days, this office concludes that the Village did not improperly\ndesignate your requests as voluminous requests. Accordingly, you had ten business days, until\nApril 18, 2018, to amend the requests in such a way that the Village would no longer treat the\nrequest as a voluminous request. 8 The Village would then have had five business days to\nrespond, or, if you did not amend your request, it must respond by April 25, 2018. If you wish to\nfile a Request for Review of the Village's substantive response to your request, you may do so\nnot later than 60 days after the date of' the response. 5 ILCS 140/ 9. 5(a) (West 2016). \n\nFor the reasons stated above, this office has determined that no further action is\n\nwarranted as to this matter. If you have questions, you may contact me at (217) 524- 7958 or\nLHarter@atg. state. il.us. This letter serves to close this matter. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n52595 f no ft war mun\n\nis sent to amend the request\n\nSection 3. 6 of FOIA sets forth the process for complying with or denying a voluminous request. \nOnce a public body designates a requester as a voluminous requester, the requester has \" 10 business days from the\ndate the public body's response * * * \nthe public body will no longer\ntreat the request as a voluminous request.\" 5 ILCS 140/ 3. 6(b) (West 2016). If the requester responds to the public\nbody and the request continues to be voluminous or the requester\nfails to respond to the public body within the 10\nday period, the public body is required to \" respond within the earlier of 5 business days after it receives the response\nfrom the requester or 5 business days after the final day for the requester to respond to the public body's\nvoluminous request] notification.\" 5 ILCS 140/ 3. 6(c) (West 2016). The public body's response shall \"(i) provide\nan estimate of the fees to be charged, which the public body may require the person to pay in full before copying the\nto one or more of the exemptions set out in this Act; (iii) notify\nrequested documents; (ii) deny the request pursuant\nto reduce\nthe requester that the request\n\nMs. Angela Simington\nFOIA Officer\nVillage of Matteson\n4900 Village Commons\n\nMatteson, Illinois 60443\n\nasimington@villageofinetteson.\n\norg"}
{"id":911,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-17","case_number":null,"request_numbers":["52748"],"title":"Wesley Township improperly withheld emails under attorney-client privilege exemption","filename":"52748, issued October 17, 2018.pdf","rel_path":null,"word_count":3056,"summary":"The requester sought emails between Wesley Township and its legal counsel, which the Township denied under the attorney-client privilege exemption. The PAC determined the Township failed to provide sufficient evidence to support the exemption and ordered the disclosure of the records.","plain_summary":"A resident requested emails between Wesley Township and its law firm, but the Township refused to release them, claiming they were protected by attorney-client privilege. The Attorney General's office reviewed the request and found that the Township did not provide enough proof to justify keeping the emails secret. Consequently, the Township was instructed to release the emails to the requester.","holding":"The Township improperly withheld the requested emails because it failed to meet its burden of proving the attorney-client privilege exemption applied to the specific records.","legal_question":"Did the Township meet its burden of proving that emails between the Township and its legal counsel were exempt from disclosure under the attorney-client privilege exemption of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Wesley Township","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"legal records","subject_description":"The request sought all emails between Wesley Township and the law firm hired by the township supervisor over a six-month period.","ocr_status":"ok","ocr_quality":91.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_c/52748%2C%20issued%20October%2017%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["attorney-client privilege","legal advice","FOIA denial","email records"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 17,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Keri - Lyn J.  Krafthefer\n\nAncel Glink,  Diamond,  Bush,  DiCianni &  Krafthefer, P. C. \n\n140 South Dearborn Street,  6th Floor\n\nChicago,  Illinois 60603\n\nKKrafthefer@ancelglink. com\n\nRE:  FOIA Request for Review — 2018 PAC 52748\n\nDear\n\nand Ms.  Krafthefer, \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 93( 0 (West 2016)).  For the reasons that follow,  the\nPublic Access Bureau concludes that Wesley Township ( Township)  did not sustain its burden of\ndemonstrating by clear and convincing evidence that the records requested by\nare\nexempt\n\nfrom disclosure. \n\nOn April 11,  2018, \n\nsubmitted a FOIA request to the Township seeking\ncopies of \"ALL emails both to and from the lawyers firm that the supervisor hired representing\nthe township within the last 6 months.\" ( Emphasis\nTownship denied the request\n140/ 7( 1)( m) ( West 2017 Supp.)).  On April 18,  2018,  this office received\nReview contesting the denial.  Specifically, he argued that there is no litigation currently being\nhandled by the firm hired by the current supervisor. \n\nto section 7( 1)( m)  of FOIA ( 5 ILCS\n\nin original.?  On April 17,  2018,  the\n\nin its entirety pursuant\n\nRequest\n\nfor\n\nApril\n\n11,  2018). \n\nFOIA request\n\nfrom\n\nto wesleysuper2017@outlook.\n\ncom,  wesleytwp20I7@outlook.\n\ncom\n\n500 South Second Street,  Springfield,  Illinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main.  Carbondale. \n\nIllinois 62901 • ( 6181 529- 6400 •  TTY: ( 6181 529- 6403 •  Fax: ( 61 81 529- 6416\n\n\fMs.  Keri -Lyn J.  Krafthefer\n\nOctober 17,  2018\n\nPage 2\n\nOn April 26,  2018,  this office forwarded a copy of the Request for Review to the\nTownship and asked it to provide this office with unredacted copies of the requested records for\nour confidential review, together with a detailed explanation of the factual and legal bases for the\n\napplicability of section 7( 1)( m).  On May 25,  2018,  counsel for the Township provided this\noffice with a written response,  maintaining that the Township properly withheld the responsive\nrecords except for certain records that the Township decided to disclose to\nupon \" re- \nreview.\"'  However, instead of providing copies of the remaining withheld records to this office, \nthe Township provided a privilege log with information about each withheld e- mail.  The\nTownship argued that releasing the records to this office would waive the attorney- client\nprivilege.  On May 29,  2018,  this office forwarded a copy of the Township' s response to\n\nhe replied later on that same date,  arguing that the attorney- client privilege does not apply\n\nhere because the Township attorney' s \" client\"  is the public. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Dept. of Public Health,  218 I11.  2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 9. 5( c)  of FOIA\n\nAs an initial matter, this office will address the Township' s claim that it would\n\nwaive the attorney- client privilege by providing records for our confidential\ncourts have defined \" waiver\"  as the \" voluntary relinquishment of a known right,  claim or\nprivilege[.]\"  Vaughn v.  Speaker,  126 Ill.  2d 150,  161 ( 1998).  A \" voluntary disclosure by the\nholder of the attorney- client privilege is inconsistent with the attorney- client confidential\nrelationship and thus waives the privilege.\"  Powers v.  Chicago Transit Auth.,  890 F. 2d 1355, \n1359 ( 7th Cir.  1989).  However,  a party \" does not waive the attorney- client privilege for\ndocuments which he is compelled to produce.\"  Transamerica Computer v. International\n\nreview. \n\nIllinois\n\nBusiness Machines, 573 F. 2d 646,  651 ( 9th Cir. 1978). \n\nSection 9. 5( c)  of FOIA ( 5 ILCS 140/ 9.5( c) ( West 2016))  expressly and\n\nunambiguously provides that each public body \" shall provide copies of records requested and\nshall otherwise fully cooperate with the Public Access Counselor.\" ( Emphasis added.)  Because\nsection 9. 5( c)  does not afford the Township discretion to disregard its statutory obligation to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attorney[ s]  General,  Public Access Bureau ( May 25,  2018),  at 3. \n\nLetter from Keri -Lyn . 1.  Krafthefer,  Ancel Glink,  Diamond,  Bush,  DiCianni &  Krafthefer,  P. C.,  to\n\n\fMs.  Keri -Lyn J.  Krafthefer\n\nOctober 17,  2018\n\nPage 3\n\nfully cooperate with this inquiry,  the Township would not waive the attorney- client privilege by\nfurnishing the records in question to the Public Access Counselor.  The General Assembly\nclearly recognized that the Public Access Counselor must have access to all pertinent records in\norder to conduct a complete review of a public body' s compliance with FOIA.  The following\ncolloquy between Representative Elaine Nekritz and Representative Michael Madigan,  the\nHouse sponsor of the bill,  during the House debate on Senate Bill 189 ( which,  as Public Act 96- \n542,  effective January I,  2010,  created the Office of the Public Access Counselor),  evinces the\nGeneral Assembly' s intention to vest the Public Access Counselor with complete authority to\n\nconduct confidential\n\nreviews of records. \n\nNekritz:  Thank you Mr.  Speaker. \nto clarify the legislative intent under\nunderstanding that under this Bill,  an agency' s required to provide\nrecords requested by the public access counselor.  What if some\nother State or Federal Law precludes disclosure of those records to\n\nI just have some questions * * * \n\nIt' s my\n\nthis. * * * \n\nsome other party like HIPAA,  an IG report or something like that? \nHow does that * * *  get resolved? \n\nMadigan:  Point number one,  the Attorney General will review\nthose documents in confidence.  They would be kept confidential. \nPoint number two,  if it were a Federal Law in conflict, why, the\nFederal Law would control. \n\nNekritz: [ A]nd if some investigating authority such as the U. S. \nAttorney asked to have that certain records not be disclosed * * * \nwhat would be the result there? \n\nMadigan: * * * [\n\nT] he Office of the U. S.  Attorney could interact\nwith the Office of the Attorney General,  make a request,  but the\nfinal judgment...\nAttorney General. ( Emphasis added.)  Remarks of Rep.  Nekritz\nand Rep.  Madigan,  May 27,  2009,  House Debate on Senate Bill\nNo.  189,  at 105. \n\nthe final decision would be made by the\n\nIn its response to this office,  the Township contended that this office' s position\n\nthat section 9. 5( c)  of FOIA requires public bodies to provide this office with unredacted copies\n\nof records subject to a claim of attorney- client privilege \" varies from the express provisions of\nthe Open Meetings Act which permit the Public Access Counselor' s office to review verbatim\n\n\fMs.  Keri -Lyn J.  Krafthefer\n\nOctober 17,  2018\n\nPage 4\n\nrecordings of closed meetings.\n\ni3\n\nSee 5 ILCS 120/ 3. 5( b) ( West 2016) (\"[ T] he Public Access\n\nCounselor has the same right to examine a verbatim recording of a meeting closed to the public\nor the minutes of a closed meeting as does a court in a civil action brought to enforce this Act.\"). \nThe Township argued: \n\nYour office has contended in the past that,  because Section 3. 5( b) \n\nexpressly provides your office the same right to examine a\nverbatim recording as a court,  and because a court can inspect a\nverbatim recording in camera, thereby preserving the attomey- \nclient privilege,  your office' s in camera review of a verbatim\nrecording would preserve the attorney- client privilege[.] 141\n\nThe Township further argued that \" similar disclosure or waiver protection language is not\nincluded in the Freedom of Information Act. i5 Additionally,  the Township argued that\nRepresentative Madigan' s remarks during the House debate on Senate Bill 189 pertained to\nproviding this office with records under the Open Meetings Act ( OMA)  rather than FOIA,  and\nthat \"[ t] he General Assembly has amended Section 7 of the Freedom of Information Act seven\ntimes since that floor debate in 2010 and has never once sought to specify that the attorney- client\nprivilege is not waived by a public body' s voluntary disclosure of protected materials to the\nPublic Access Counselor' s Office. i6\n\nBoth section 9. 5( c)  of FOIA and section 3. 5( b)  of OMA provide that \" the public\nbody shall provide copies of the records requested and shall otherwise fully cooperate with the\nPublic Access Counselor.\" ( Emphasis added.)  Despite the Township' s argument that \" if the\nGeneral Assembly had intended documents produced to the [ Public Access Bureau]  under the\nFreedom of Information Act to be held confidential,  as they are under the Open Meetings Act, \nthe General Assembly would have done so[,]\" \n\n7 section 9. 5( c)  of FOIA clearly provides: \" To the\n\n3Letter from Keri -Lyn J.  Krafthefer, Ancel Glink, Diamond,  Bush,  DiCianni &  Krafthefer,  P. C.,  to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attomey[ s]  General,  Public Access Bureau ( May 25,  2018),  at 3. \n\nLetter from Keri -Lyn J.  Krafthefer,  Ancel Glink,  Diamond,  Bush,  DiCianni &  Krafthefer,  P. C.,  to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attomey[ s]  General,  Public Access Bureau ( May 25,  2018),  at 3. \n\n5Letter from Keri -Lyn J.  Krafthefer, Ancel Glink, Diamond,  Bush,  DiCianni &  Krafthefer, P.C., to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attomey[ s]  General,  Public Access Bureau ( May 25,  2018),  at 4. \n\n6Letter from Keri -Lyn J.  Krafthefer,  Ancel Glink,  Diamond,  Bush,  DiCianni &  Krafthefer,  P. C.,  to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attomey[ s]  General,  Public Access Bureau ( May 25,  2018),  at 4. \n\n7Letter from Keri -Lyn J.  Krafthefer, Ancel Glink, Diamond,  Bush,  DiCianni &  Krafthefer, P. C.,  to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attomey[ s]  General,  Public Access Bureau ( May 25,  2018),  at 4. \n\n\fMs. Keri -Lyn J.  Krafthefer\n\nOctober 17,  2018\n\nPage 5\n\nthat records or documents produced by a public body contain information that is claimed\nextent\nto be exempt from disclosure under Section 7 of this Act, the Public Access Counselor shall not\n\nfurther disclose that information.\"  Additionally,  neither Representative Nekritz nor\nRepresentative Madigan alluded to OMA.  Their remarks plainly did not concern verbatim\nrecordings of closed sessions,  which the Township appears to contend are the only records that\ncan be provided to the Public Access Counselor without waiving the attorney- client privilege. \nInstead,  the remarks concerned this office' s access to review documents such as medical records\n\nreports that are denied under FOIA.  Moreover,  it is unnecessary for the\n\nand inspector general\nGeneral Assembly to amend FOIA to specifically state that this office is entitled to review\nrecords subject\nto claims of attorney client privilege in light of the plain language of section\n9. 5( c).  If the General Assembly wished to carve out an exception in section 9. 5( c)  that would\nhave permitted public bodies to withhold from the Public Access Counselor records asserted to\nbe exempt under section 7( 1)( m) of FOIA, the General Assembly would have done so expressly. \nThe Township' s refusal to provide this office with unredacted copies of the records in question\nthe type of comprehensive review that\nundermines the Public Access Counselor' s duty to conduct\nthe General Assembly deemed to be crucial when it enacted Public Act 96- 542.  This refusal also\nviolates section 9. 5( c)  of FOIA.  See 111.  Att' y Gen.  Pub.  Acc.  Op.  No.  12- 007,  issued April 2, \n2012,  at 7. \n\nDespite the Township' s lack of cooperation,  this office will analyze whether the\n\nprivilege log and response letter submitted by the Township provide clear and convincing\nevidence that the withheld e- mails are exempt from disclosure under section 7( 1)( m). \n\nSection 7( 1)( m)  of FOIA\n\nSection 7( 1)( m)  of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject to\ndiscovery in litigation,  and materials prepared or compiled by or\nfor a public body in anticipation of a criminal,  civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body,  and materials prepared or compiled with respect\nto internal audits of public bodies. \n\nCommunications protected by the attorney- client privilege are within the scope of section\n7( 1)( m).  See People ex rel.  Ulrich v. Stukel,  294 Ill.  App.  3d 193,  201 ( 1st Dist.  1997).  A party\nasserting that a communication to an attorney is protected by the attorney- client privilege must\nshow that: \"( 1)  a statement originated in confidence that it would not be disclosed; ( 2)  it\n\n\fMs.  Keri -Lyn J.  Krafthefer\n\nOctober 17,  2018\n\nPage 6\n\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices;  and ( 3)  it remained confidential.\"  Cangelosi v. Capasso,  366 Ill. App.  3d 225,  228 ( 2nd\nDist.  2006).  Moreover, \"[\n\nt] he privilege applies not only to the communications of a client to his\nattorney,  but also to the advice of an attorney to his client.\"  In re Marriage of Granger,  197 I11. \nApp.  3d 363,  374 ( 5th Dist.  1990);  see also People v.  Radojcic,  2013 IL 114197, ¶ 40,  998\nN. E. 2d 1212,  1221- 22 ( 2013) (\"[ T] he modern view is that the privilege is a two- way street, \nprotecting both the client' s communications to the attorney and the attorney' s advice to the\nclient.\").  A public body that withholds records under section 7( 1)( m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n456,  470 ( 2003). \n\nIllinois Education Ass' n v.  Illinois State Board Of Education,  204111.  2d\n\nIn its response to this office, the Township contended that \"[ w]hile\nargues that the requested e- mails must be released as the firm is * * *  not currently handling any\npending litigation for the Township,  case law is clear that the attorney client privilege extends to\ncommunications of a corporate nature,  as well as litigation. i8 The Township argued that because\nall of the communications listed in the privilege log are e- mails between Ancel Glink attorneys\nand Township Supervisor JoAnn Quigley or Township Clerk Susan Lyday,  all of the\ncommunications are subject to the attorney- client privilege. \n\nAlthough the Township is correct that a communication between Supervisor\n\nQuigley or Clerk Lyday and the Township' s attorney need not concern pending litigation in order\nto fall within the scope of section 7( 1)( m),  the attorney- client privilege does not apply to all\ncommunications between an attorney and a client.  Rather,  as set forth above,  it is incumbent on\nthe public body to provide some objective indicia that the other elements of the privilege are met: \nthat the communication was made for the purpose of seeking or providing legal advice and was\nkept confidential. \n\nThe privilege log that the Township provided to this office lists e- mails with the\n\nsenders'  and receivers'  names,  the dates and times of transmission,  and brief, generalized\n\ndescriptions. A privilege log is insufficient if it contains only \" blanket assertions of privilege, \ndevoid of the factual basis necessary to properly establish entitlement\nprivilege.\"  Novelty, Inc.  v.  Mountain View Marketing, Inc., 265 F. R.D. 370,  380 ( S. D.  Ind. \n2009);  see also Ill. Att' y Gen. PAC Req.  Rev.  Ltr. 50376,  issued February 20,  2018,  at 4\nprivilege log stating that redacted e- mails contained legal opinions was conclusory;  public body\ndid not demonstrate that communications were for the purpose of securing legal advice or\nremained confidential);  Ill. Att' y Gen. PAC Req.  Rev.  Ltr. 25694,  issued August 13,  2014,  at 5\n\nto some evidentiary\n\n8Letter from Keri -Lyn J.  Krafthefer, Ancel Glink, Diamond,  Bush,  DiCianni &  Krafthefer, P. C.,  to\n\nSteve Silverman,  Marie Hollister,  Assistant[ ]  Attomey[ s]  General,  Public Access Bureau ( May 25,  2018),  at 2. \n\n\fMs.  Keri -Lyn J.  Krafthefer\n\nOctober 17,  2018\n\nPage 7\n\nvague and very broad descriptions\"  in connection with privilege log \"[ did]  not provide the\nfactual detail needed to demonstrate that the records in question [ were],  in fact,  privileged.\"). \n\nHere,  the Township did not provide adequate details to demonstrate that the\n\nwithheld e- mails are exempt\n\nfrom disclosure under section 7( 1)( m).  The mere fact that the e- \n\nmails were exchanged by the Township and its outside counsel does not demonstrate that all of\nthose e- mails contain or seek legal advice.  Additionally,  the short and nonspecific descriptions\nof the withheld e- mails in the privilege log do not conclusively demonstrate that the e- mails\nconsist entirely of the seeking or giving of legal advice.  The Township' s assertion that the\nwithheld e- mails involve legal advice is conclusory.  Further,  the extent\ncertain e- mails were kept confidential\nthat the contents of certain e- mails may potentially have been subject to subsequent public\ndiscussion,  possibly waiving the protection of the attorney- client privilege.  Accordingly,  the\nTownship has not sustained its burden of demonstrating by clear and convincing evidence that\nthe records in question are exempt\n\nto which the contents of\ninstances,  the privilege log indicates\n\nfrom disclosure under section 7( 1)( m). \n\nis unclear. \n\nIn several\n\nIn accordance with the conclusions expressed in this letter,  this office requests\n\nthat the Township disclose copies of the e- mails to\nredactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2017 Supp.)). \n\nsubject only to permissible\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n52748 f 71m improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails between a township and its legal counsel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52748/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 17, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Keri - Lyn J. Krafthefer\n\nAncel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C. \n\n140 South Dearborn Street, 6th Floor\n\nChicago, Illinois 60603\n\nKKrafthefer@ancelglink. com\n\nRE: FOIA Request for Review — 2018 PAC 52748\n\nDear\n\nand Ms. Krafthefer, \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 93(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that Wesley Township (Township) did not sustain its burden of\ndemonstrating by clear and convincing evidence that the records requested by\nare\nexempt\n\nfrom disclosure. \n\nOn April 11, 2018, \n\nsubmitted a FOIA request to the Township seeking\ncopies of \"ALL emails both to and from the lawyers firm that the supervisor hired representing\nthe township within the last 6 months.\" (Emphasis\nTownship denied the request\n140/ 7(1)(m) (West 2017 Supp.)). On April 18, 2018, this office received\nReview contesting the denial. Specifically, he argued that there is no litigation currently being\nhandled by the firm hired by the current supervisor. \n\nto section 7(1)(m) of FOIA (5 ILCS\n\nin original.? On April 17, 2018, the\n\nin its entirety pursuant\n\nRequest\n\nfor\n\nApril\n\n11, 2018). \n\nFOIA request\n\nfrom\n\nto wesleysuper2017@outlook.\n\ncom, wesleytwp20I7@outlook.\n\ncom\n\nOn April 26, 2018, this office forwarded a copy of the Request for Review to the\nTownship and asked it to provide this office with unredacted copies of the requested records for\nour confidential review, together with a detailed explanation of the factual and legal bases for the\n\napplicability of section 7(1)(m). On May 25, 2018, counsel for the Township provided this\noffice with a written response, maintaining that the Township properly withheld the responsive\nrecords except for certain records that the Township decided to disclose to\nupon \" re- \nreview.\"' However, instead of providing copies of the remaining withheld records to this office, \nthe Township provided a privilege log with information about each withheld e- mail. The\nTownship argued that releasing the records to this office would waive the attorney- client\nprivilege. On May 29, 2018, this office forwarded a copy of the Township's response to\n\nhe replied later on that same date, arguing that the attorney- client privilege does not apply\n\nhere because the Township attorney's \" client\" is the public. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). \n\nSection 9. 5(c) of FOIA\n\nAs an initial matter, this office will address the Township's claim that it would\n\nwaive the attorney- client privilege by providing records for our confidential\ncourts have defined \" waiver\" as the \" voluntary relinquishment of a known right, claim or\nprivilege[.]\" Vaughn v. Speaker, 126 Ill. 2d 150, 161 (1998). A \" voluntary disclosure by the\nholder of the attorney- client privilege is inconsistent with the attorney- client confidential\nrelationship and thus waives the privilege.\" Powers v. Chicago Transit Auth., 890 F. 2d 1355, \n1359 (7th Cir. 1989). However, a party \" does not waive the attorney- client privilege for\ndocuments which he is compelled to produce.\" Transamerica Computer v. International\n\nreview. \n\nIllinois\n\nBusiness Machines, 573 F. 2d 646, 651 (9th Cir. 1978). \n\nSection 9. 5(c) of FOIA (5 ILCS 140/ 9.5(c) (West 2016)) expressly and\n\nunambiguously provides that each public body \" shall provide copies of records requested and\nshall otherwise fully cooperate with the Public Access Counselor.\" (Emphasis added.) Because\nsection 9. 5(c) does not afford the Township discretion to disregard its statutory obligation to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attorney[ s] General, Public Access Bureau (May 25, 2018), at 3. \n\nLetter from Keri -Lyn. 1. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nfully cooperate with this inquiry, the Township would not waive the attorney- client privilege by\nfurnishing the records in question to the Public Access Counselor. The General Assembly\nclearly recognized that the Public Access Counselor must have access to all pertinent records in\norder to conduct a complete review of a public body's compliance with FOIA. The following\ncolloquy between Representative Elaine Nekritz and Representative Michael Madigan, the\nHouse sponsor of the bill, during the House debate on Senate Bill 189 (which, as Public Act 96- \n542, effective January I, 2010, created the Office of the Public Access Counselor), evinces the\nGeneral Assembly's intention to vest the Public Access Counselor with complete authority to\n\nconduct confidential\n\nreviews of records. \n\nNekritz: Thank you Mr. Speaker. \nto clarify the legislative intent under\nunderstanding that under this Bill, an agency's required to provide\nrecords requested by the public access counselor. What if some\nother State or Federal Law precludes disclosure of those records to\n\nI just have some questions * * * \n\nIt's my\n\nthis. * * * \n\nsome other party like HIPAA, an IG report or something like that? \nHow does that * * * get resolved? \n\nMadigan: Point number one, the Attorney General will review\nthose documents in confidence. They would be kept confidential. \nPoint number two, if it were a Federal Law in conflict, why, the\nFederal Law would control. \n\nNekritz: [ A]nd if some investigating authority such as the U. S. \nAttorney asked to have that certain records not be disclosed * * * \nwhat would be the result there? \n\nMadigan: * * * [\n\nT] he Office of the U. S. Attorney could interact\nwith the Office of the Attorney General, make a request, but the\nfinal judgment...\nAttorney General. (Emphasis added.) Remarks of Rep. Nekritz\nand Rep. Madigan, May 27, 2009, House Debate on Senate Bill\nNo. 189, at 105. \n\nthe final decision would be made by the\n\nIn its response to this office, the Township contended that this office's position\n\nthat section 9. 5(c) of FOIA requires public bodies to provide this office with unredacted copies\n\nof records subject to a claim of attorney- client privilege \" varies from the express provisions of\n\nrecordings of closed meetings.\n\ni3\n\nSee 5 ILCS 120/ 3. 5(b) (West 2016) (\"[ T] he Public Access\n\nCounselor has the same right to examine a verbatim recording of a meeting closed to the public\nor the minutes of a closed meeting as does a court in a civil action brought to enforce this Act.\"). \nThe Township argued: \n\nYour office has contended in the past that, because Section 3. 5(b) \n\nexpressly provides your office the same right to examine a\nverbatim recording as a court, and because a court can inspect a\nverbatim recording in camera, thereby preserving the attomey- \nclient privilege, your office's in camera review of a verbatim\nrecording would preserve the attorney- client privilege[.] 141\n\nThe Township further argued that \" similar disclosure or waiver protection language is not\nincluded in the Freedom of Information Act. i5 Additionally, the Township argued that\nRepresentative Madigan's remarks during the House debate on Senate Bill 189 pertained to\nproviding this office with records under the Open Meetings Act (OMA) rather than FOIA, and\nthat \"[ t] he General Assembly has amended Section 7 of the Freedom of Information Act seven\ntimes since that floor debate in 2010 and has never once sought to specify that the attorney- client\nprivilege is not waived by a public body's voluntary disclosure of protected materials to the\nPublic Access Counselor's Office. i6\n\nBoth section 9. 5(c) of FOIA and section 3. 5(b) of OMA provide that \" the public\nbody shall provide copies of the records requested and shall otherwise fully cooperate with the\nPublic Access Counselor.\" (Emphasis added.) Despite the Township's argument that \" if the\nGeneral Assembly had intended documents produced to the [ Public Access Bureau] under the\nFreedom of Information Act to be held confidential, as they are under the Open Meetings Act, \nthe General Assembly would have done so[,]\" \n\n7 section 9. 5(c) of FOIA clearly provides: \" To the\n\n3 Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau (May 25, 2018), at 3. \n\nLetter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau (May 25, 2018), at 3. \n\n5 Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P.C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau (May 25, 2018), at 4. \n\n6 Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau (May 25, 2018), at 4. \n\n7 Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau (May 25, 2018), at 4. \n\nthat records or documents produced by a public body contain information that is claimed\nextent\nto be exempt from disclosure under Section 7 of this Act, the Public Access Counselor shall not\n\nfurther disclose that information.\" Additionally, neither Representative Nekritz nor\nRepresentative Madigan alluded to OMA. Their remarks plainly did not concern verbatim\nrecordings of closed sessions, which the Township appears to contend are the only records that\ncan be provided to the Public Access Counselor without waiving the attorney- client privilege. \nInstead, the remarks concerned this office's access to review documents such as medical records\n\nreports that are denied under FOIA. Moreover, it is unnecessary for the\n\nand inspector general\nGeneral Assembly to amend FOIA to specifically state that this office is entitled to review\nrecords subject\nto claims of attorney client privilege in light of the plain language of section\n9. 5(c). If the General Assembly wished to carve out an exception in section 9. 5(c) that would\nhave permitted public bodies to withhold from the Public Access Counselor records asserted to\nbe exempt under section 7(1)(m) of FOIA, the General Assembly would have done so expressly. \nThe Township's refusal to provide this office with unredacted copies of the records in question\nthe type of comprehensive review that\nundermines the Public Access Counselor's duty to conduct\nthe General Assembly deemed to be crucial when it enacted Public Act 96- 542. This refusal also\nviolates section 9. 5(c) of FOIA. See 111. Att' y Gen. Pub. Acc. Op. No. 12- 007, issued April 2, \n2012, at 7. \n\nDespite the Township's lack of cooperation, this office will analyze whether the\n\nprivilege log and response letter submitted by the Township provide clear and convincing\nevidence that the withheld e- mails are exempt from disclosure under section 7(1)(m). \n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney or\n\nauditor representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body, and materials prepared or compiled with respect\nto internal audits of public bodies. \n\nCommunications protected by the attorney- client privilege are within the scope of section\n7(1)(m). See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1st Dist. 1997). A party\nasserting that a communication to an attorney is protected by the attorney- client privilege must\nshow that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it\n\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2nd\nDist. 2006). Moreover, \"[\n\nt] he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 I11. \nApp. 3d 363, 374 (5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN. E. 2d 1212, 1221- 22 (2013) (\"[ T] he modern view is that the privilege is a two- way street, \nprotecting both the client's communications to the attorney and the attorney's advice to the\nclient.\"). A public body that withholds records under section 7(1)(m) \" can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) \n456, 470 (2003). \n\nIllinois Education Ass' n v. Illinois State Board Of Education, 204111. 2d\n\nIn its response to this office, the Township contended that \"[ w]hile\nargues that the requested e- mails must be released as the firm is * * * not currently handling any\npending litigation for the Township, case law is clear that the attorney client privilege extends to\ncommunications of a corporate nature, as well as litigation. i8 The Township argued that because\nall of the communications listed in the privilege log are e- mails between Ancel Glink attorneys\nand Township Supervisor JoAnn Quigley or Township Clerk Susan Lyday, all of the\ncommunications are subject to the attorney- client privilege. \n\nAlthough the Township is correct that a communication between Supervisor\n\nQuigley or Clerk Lyday and the Township's attorney need not concern pending litigation in order\nto fall within the scope of section 7(1)(m), the attorney- client privilege does not apply to all\ncommunications between an attorney and a client. Rather, as set forth above, it is incumbent on\nthe public body to provide some objective indicia that the other elements of the privilege are met: \nthat the communication was made for the purpose of seeking or providing legal advice and was\nkept confidential. \n\nThe privilege log that the Township provided to this office lists e- mails with the\n\nsenders' and receivers' names, the dates and times of transmission, and brief, generalized\n\ndescriptions. A privilege log is insufficient if it contains only \" blanket assertions of privilege, \ndevoid of the factual basis necessary to properly establish entitlement\nprivilege.\" Novelty, Inc. v. Mountain View Marketing, Inc., 265 F. R.D. 370, 380 (S. D. Ind. \n2009); see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 50376, issued February 20, 2018, at 4\nprivilege log stating that redacted e- mails contained legal opinions was conclusory; public body\ndid not demonstrate that communications were for the purpose of securing legal advice or\nremained confidential); Ill. Att' y Gen. PAC Req. Rev. Ltr. 25694, issued August 13, 2014, at 5\n\nto some evidentiary\n\n8 Letter from Keri -Lyn J. Krafthefer, Ancel Glink, Diamond, Bush, DiCianni & Krafthefer, P. C., to\n\nSteve Silverman, Marie Hollister, Assistant[ ] Attomey[ s] General, Public Access Bureau (May 25, 2018), at 2. \n\nvague and very broad descriptions\" in connection with privilege log \"[ did] not provide the\nfactual detail needed to demonstrate that the records in question [ were], in fact, privileged.\"). \n\nHere, the Township did not provide adequate details to demonstrate that the\n\nwithheld e- mails are exempt\n\nfrom disclosure under section 7(1)(m). The mere fact that the e- \n\nmails were exchanged by the Township and its outside counsel does not demonstrate that all of\nthose e- mails contain or seek legal advice. Additionally, the short and nonspecific descriptions\nof the withheld e- mails in the privilege log do not conclusively demonstrate that the e- mails\nconsist entirely of the seeking or giving of legal advice. The Township's assertion that the\nwithheld e- mails involve legal advice is conclusory. Further, the extent\ncertain e- mails were kept confidential\nthat the contents of certain e- mails may potentially have been subject to subsequent public\ndiscussion, possibly waiving the protection of the attorney- client privilege. Accordingly, the\nTownship has not sustained its burden of demonstrating by clear and convincing evidence that\nthe records in question are exempt\n\nto which the contents of\ninstances, the privilege log indicates\n\nfrom disclosure under section 7(1)(m). \n\nis unclear. \n\nIn several\n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Township disclose copies of the e- mails to\nredactions under section 7 of FOIA (5 ILCS 140/ 7 (West 2017 Supp.)). \n\nsubject only to permissible\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n52748 f 71m improper mun"}
{"id":912,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-06-21","case_number":null,"request_numbers":["52871"],"title":"Lake County Sheriff's Office properly denied body camera footage under 7(1)(a)","filename":"52871, issued June 21, 2018.pdf","rel_path":null,"word_count":1519,"summary":"The requester sought body camera footage from a police response at a judicial circuit court, which the Sheriff's Office denied citing FOIA exemption 7(1)(a). The PAC determined that the Sheriff's Office did not improperly withhold the records.","plain_summary":"A requester asked for police body camera footage of an incident at a courthouse. The Sheriff's Office refused to release the video, and the Attorney General's office agreed that the refusal was lawful. This means the public does not have a right to access this specific footage under FOIA.","holding":"The Lake County Sheriff's Office did not violate FOIA by withholding the requested body camera footage.","legal_question":"Whether the Lake County Sheriff's Office properly denied a FOIA request for body camera footage under section 7(1)(a) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Lake County Sheriff's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved body camera footage of officers responding to an incident at the 19th Judicial Circuit Court.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_a/Exclusion-of-judiciary/52871%2C%20issued%20June%2021%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","FOIA exemption","court records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 21,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs.  Christy Berkquist,  FOIA Officer\nLake County Sheriffs Office\n25 South Martin Luther King Jr. Avenue\nWaukegan,  Illinois 60085\n\ncberkquist@lakecountyil.\n\ngov\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 52871\n\nDear\n\nand Ms.  Berkquist: \n\nThis determination is issued pursuant to section 9.5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016)).  For the reasons stated below, the\nPublic Access Bureau concludes that the Lake County Sheriffs Office ( Sheriffs Office)  did not\nimproperly withhold body camera footage in response to a FOIA request submitted on behalf of\n\non behalf of the\n\nOn April 10, 2018, \n\nsubmitted a\nFOIA request to the Sheriffs Office seeking \" copies of the body camera footage ( audio &  visual) \nof the officers who responded to an incident that occurred at the Clerk' s Office of the 19th\nJudicial Circuit Court in Waukegan on March 16,  2018 at approximately 11: 33 a.m.i1 On April\n25,  2018,  the Sheriff' s Office denied\nrequest pursuant to section 7( 1)( a)  of FOIA\n5 ILCS 140/ 7( 1)( a) ( West 2016),  as amended by Public Acts 100- 026,  effective August 4,  2017; \n100- 201,  effective August 18,  2017).  The Sheriffs Office cited Illinois Supreme Court Rule 63\nin connection with its assertion that the footage was exempt under section 7( 1)( a) of FOIA.  On\nRequest for Review contesting the denial of\nApril 26,  2018,  this office received\nthe FOIA request submitted on his behalf. \n\nOffice ( April 10,  2018). \n\nFreedom of Information Act Request Form from\n\nto the Lake County Sheriffs\n\n500 South Second Street,  Springfield,  Illinois 62706 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois, 60601 • (\nFax: ( 312)  814- 3806\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\n\fMs. Christy Berkquist\nJune 21,  2018\nPage 2\n\nOn May 1,  2018, this office sent the Sheriffs Office a copy of the Request for\nReview and requested copies of the withheld footage for our confidential review, as well as a\ndetailed explanation of the factual and legal bases for the asserted exemption.  The Public Access\nBureau received a letter from The Honorable Jay W. Ukena, Chief Judge,  Circuit Court, \nNineteenth Judicial Circuit, dated May 7,  2018,  asserting that the body camera videos were\nproperty of the judicial branch and not subject to FOIA, or, alternatively, were exempt from\ndisclosure pursuant to section 7( 1)( a)  of FOIA.  On May 16,  2018,  the Sheriffs Office responded\nby adopting the letter from Judge Ukena as its response to\nOn May 16,  2018, this office forwarded copies of Judge Ukena's letter and the Sheriff's Office's\nanswer to\n\nRequest for Review. \n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department of Public Health,  218 Ill. 2d 390,  415 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be narrowly construed.  Lieber v. \nBoard of Trustees ofSouthern Illinois University,  176 Ill. 2d 401,  407 ( 1997). \n\nIn its answer to this office, the Sheriff's Office asserted that disclosure of the\n\nfootage sought by\nSheriffs Office asserted that footage captured inside the Lake County Circuit Clerk' s Office\nCircuit Clerk's Office) by Sheriff's Office deputies assigned to the Court Security Unit \"are not\npublic records but are records of the judicial branch and not subject to FOIA[. J'  2\n\nis limited by Illinois Supreme Court Rule 63.  In particular,  the\n\nIllinois Supreme Court's rules \" have the force of law, and the presumption must\n\nbe that they will be obeyed and enforced as written.\"  Bright v. Dicke,  166 Ill. 2d 204, 210\n1995).  The Illinois Supreme Court has explained: \n\nWhen interpreting supreme court rules, our court is guided by the\nsame principles applicable to the construction of statutes. \nis to ascertain\nCitations.]  With rules,  as with statutes,  our goal\nand give effect to the drafters'  intention. [ Citation.]  The most\nreliable indicator of intent is the language used,  which must be\ngiven its plain and ordinary meaning.  People v. Marker, 233 I11. \n2d 158,  164- 65 ( 2009). \n\nCircuit, Lake County,  Illinois, to Matt Hartman,  Assistant Attorney General,  Public Access Bureau ( May 7,  2018), \n\nat 3. \n\nLetter from The Honorable Jay W. Ukena,  Chief Judge,  Circuit Court,  Nineteenth Judicial\n\n\fMs.  Christy Berkquist\nJune 21,  2018\n\nPage 3\n\nIllinois Supreme Court Rule 63,  titled \" A Judge Should Perform the Duties of\n\nJudicial Office Impartially and Diligently[,]\"  is one of the canons of the Judicial Code of\nConduct?  The Appendix to Rule 63 provides,  in pertinent part: \n\nAll recordings from security cameras monitoring court\n\nfacilities are the property of the local circuit courts and are deemed\nto be in the possession of the local circuit courts notwithstanding\nactual possession by another party. ( Emphasis added.)  Ill. S.  Ct. \nR.  63,  Appendix ( last amended February 2,  2017). \n\nOn the other hand,  section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2016))  provides\n\nthat all public records \" in the custody or possession of a public body are presumed to be open to\ninspection or copying.\"  FOIA broadly defines \" public records\"  as: \n\nall records,  reports,  forms,  writings,  letters,  memoranda,  books, \npapers,  maps,  photographs,  microfilms,  cards,  tapes,  recordings, \nelectronic data processing records,  electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business,  regardless of\nphysical form or characteristics,  having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body.  5 LCS 140/ 2( c) ( West\n2016). \n\nTo the extent Supreme Court Rule 63 conflicts with these provisions of FOIA by\ndesignating footage from security cameras monitoring court facilities as property of the circuit\ncourts, even if the footage is in the physical custody of a public body such as the Sheriff's Office, \nthe Rule takes precedence: \"\nIt is well settled in Illinois that where a supreme court rule conflicts\nwith a statute on the same subject, ' the rule will prevail.\"'  Dalan/Jupiter, Inc. ex rel. JRC\nMidway Marketplace, L.P. v. Draper &  Kramer, Inc., 372 III. App. 3d 362, 370 ( 1st Dist. 2007) \nquoting O' Connell v.  St.  Francis Hospital,  112 III.  2d 273,  281 ( 1986)). \n\nThe Illinois Supreme Court has held that \" clerks of the circuit courts in this State\n\nare nonjudicial members of the judicial branch of State government\"  Drury v. McLean\nCounty,  89 I11.  2d 417, 420 ( 1982).  Thus, the Circuit Clerk' s Office within the Lake County\nCourthouse ( Courthouse)  is a \" court facility\" as that term is used in the Appendix to Rule 63. \n\n3111.  S.  Ct.  R.  63. \n\n\fMs.  Christy Berkquist\nJune 21,  2018\nPage 4\n\nBased on its plain language,  the clear intent of the Illinois Supreme Court in\n\nadopting the Appendix to Rule 63 was to designate recordings captured for security purposes\nfrom inside the Courthouse as Circuit Court property. 4 In this matter, the footage was captured\nby members of the Court Security Unit, who are assigned to the Courthouse to \" maintain the\nsecurity of the courthouse.\"  55 ILCS 5/ 3- 6023 ( West 2016).  The Circuit Court denied the\nSheriffs Office request to release the footage at issue.5 Because the requested footage is Circuit\nCourt property despite being in the physical custody of the Sheriffs Office, and because the\nCircuit Court directed the Sheriff's Office not to release the footage, this office concludes that\nthere is no basis on which to find that the Sheriff' s Office violated FOIA by withholding the\nfootage. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  Please contact me at ( 217)  782- 9054, \nmhartman@atg. state. il.us,  or the Springfield address at the bottom of the first page if you have\nquestions.  This letter serves to close this file. \n\nVery truly yours, \n\nMATT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n52871 71a proper co\n\ncc: \n\nThe Honorable Jay W. Ukena, Chief Judge\nCircuit Court,  Nineteenth Judicial Circuit\nLake County,  Illinois\n18 North County Street\nWaukegan,  Illinois 60085\n\nThe Circuit Court is not subject to requirements of FOIA.  See Copley Press,  Inc. v. \n\nAdministrative Office of the Courts, 271 111.  App. 3d 548,  553 ( 1995) (\" The lack of any reference to the courts or\njudiciary must be taken as an intent to exclude the judiciary from the disclosure requirements of the Act.\"). \n\nJudicial Circuit Court ( April 20,  2018) \n\nSCourt Surveillance/ Body Camera Video Request Form,  Administrative Office of the Nineteenth\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a courthouse incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-52871/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 21, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Christy Berkquist, FOIA Officer\nLake County Sheriffs Office\n25 South Martin Luther King Jr. Avenue\nWaukegan, Illinois 60085\n\ncberkquist@lakecountyil.\n\ngov\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 52871\n\nDear\n\nand Ms. Berkquist: \n\nThis determination is issued pursuant to section 9.5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the Lake County Sheriffs Office (Sheriffs Office) did not\nimproperly withhold body camera footage in response to a FOIA request submitted on behalf of\n\non behalf of the\n\nOn April 10, 2018, \n\nsubmitted a\nFOIA request to the Sheriffs Office seeking \" copies of the body camera footage (audio & visual) \nof the officers who responded to an incident that occurred at the Clerk's Office of the 19th\nJudicial Circuit Court in Waukegan on March 16, 2018 at approximately 11: 33 a.m.i1 On April\n25, 2018, the Sheriff's Office denied\nrequest pursuant to section 7(1)(a) of FOIA\n5 ILCS 140/ 7(1)(a) (West 2016), as amended by Public Acts 100- 026, effective August 4, 2017; \n100- 201, effective August 18, 2017). The Sheriffs Office cited Illinois Supreme Court Rule 63\nin connection with its assertion that the footage was exempt under section 7(1)(a) of FOIA. On\nRequest for Review contesting the denial of\nApril 26, 2018, this office received\nthe FOIA request submitted on his behalf. \n\nOffice (April 10, 2018). \n\nFreedom of Information Act Request Form from\n\nto the Lake County Sheriffs\n\nOn May 1, 2018, this office sent the Sheriffs Office a copy of the Request for\nReview and requested copies of the withheld footage for our confidential review, as well as a\ndetailed explanation of the factual and legal bases for the asserted exemption. The Public Access\nBureau received a letter from The Honorable Jay W. Ukena, Chief Judge, Circuit Court, \nNineteenth Judicial Circuit, dated May 7, 2018, asserting that the body camera videos were\nproperty of the judicial branch and not subject to FOIA, or, alternatively, were exempt from\ndisclosure pursuant to section 7(1)(a) of FOIA. On May 16, 2018, the Sheriffs Office responded\nby adopting the letter from Judge Ukena as its response to\nOn May 16, 2018, this office forwarded copies of Judge Ukena's letter and the Sheriff's Office's\nanswer to\n\nRequest for Review. \n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees ofSouthern Illinois University, 176 Ill. 2d 401, 407 (1997). \n\nIn its answer to this office, the Sheriff's Office asserted that disclosure of the\n\nfootage sought by\nSheriffs Office asserted that footage captured inside the Lake County Circuit Clerk's Office\nCircuit Clerk's Office) by Sheriff's Office deputies assigned to the Court Security Unit \"are not\npublic records but are records of the judicial branch and not subject to FOIA[. J' 2\n\nis limited by Illinois Supreme Court Rule 63. In particular, the\n\nIllinois Supreme Court's rules \" have the force of law, and the presumption must\n\nbe that they will be obeyed and enforced as written.\" Bright v. Dicke, 166 Ill. 2d 204, 210\n1995). The Illinois Supreme Court has explained: \n\nWhen interpreting supreme court rules, our court is guided by the\nsame principles applicable to the construction of statutes. \nis to ascertain\nCitations.] With rules, as with statutes, our goal\nand give effect to the drafters' intention. [ Citation.] The most\nreliable indicator of intent is the language used, which must be\ngiven its plain and ordinary meaning. People v. Marker, 233 I11. \n2d 158, 164- 65 (2009). \n\nCircuit, Lake County, Illinois, to Matt Hartman, Assistant Attorney General, Public Access Bureau (May 7, 2018), \n\nIllinois Supreme Court Rule 63, titled \" A Judge Should Perform the Duties of\n\nJudicial Office Impartially and Diligently[,]\" is one of the canons of the Judicial Code of\nConduct? The Appendix to Rule 63 provides, in pertinent part: \n\nAll recordings from security cameras monitoring court\n\nfacilities are the property of the local circuit courts and are deemed\nto be in the possession of the local circuit courts notwithstanding\nactual possession by another party. (Emphasis added.) Ill. S. Ct. \nR. 63, Appendix (last amended February 2, 2017). \n\nOn the other hand, section 1. 2 of FOIA (5 ILCS 140/ 1. 2 (West 2016)) provides\n\nthat all public records \" in the custody or possession of a public body are presumed to be open to\ninspection or copying.\" FOIA broadly defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, \npapers, maps, photographs, microfilms, cards, tapes, recordings, \nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. 5 LCS 140/ 2(c) (West\n2016). \n\nTo the extent Supreme Court Rule 63 conflicts with these provisions of FOIA by\ndesignating footage from security cameras monitoring court facilities as property of the circuit\ncourts, even if the footage is in the physical custody of a public body such as the Sheriff's Office, \nthe Rule takes precedence: \"\nIt is well settled in Illinois that where a supreme court rule conflicts\nwith a statute on the same subject, ' the rule will prevail.\"' Dalan/Jupiter, Inc. ex rel. JRC\nMidway Marketplace, L.P. v. Draper & Kramer, Inc., 372 III. App. 3d 362, 370 (1st Dist. 2007) \nquoting O' Connell v. St. Francis Hospital, 112 III. 2d 273, 281 (1986)). \n\nThe Illinois Supreme Court has held that \" clerks of the circuit courts in this State\n\nare nonjudicial members of the judicial branch of State government\" Drury v. McLean\nCounty, 89 I11. 2d 417, 420 (1982). Thus, the Circuit Clerk's Office within the Lake County\nCourthouse (Courthouse) is a \" court facility\" as that term is used in the Appendix to Rule 63. \n\nBased on its plain language, the clear intent of the Illinois Supreme Court in\n\nadopting the Appendix to Rule 63 was to designate recordings captured for security purposes\nfrom inside the Courthouse as Circuit Court property. 4 In this matter, the footage was captured\nby members of the Court Security Unit, who are assigned to the Courthouse to \" maintain the\nsecurity of the courthouse.\" 55 ILCS 5/ 3- 6023 (West 2016). The Circuit Court denied the\nSheriffs Office request to release the footage at issue.5 Because the requested footage is Circuit\nCourt property despite being in the physical custody of the Sheriffs Office, and because the\nCircuit Court directed the Sheriff's Office not to release the footage, this office concludes that\nthere is no basis on which to find that the Sheriff's Office violated FOIA by withholding the\nfootage. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. Please contact me at (217) 782- 9054, \nmhartman@atg. state. il.us, or the Springfield address at the bottom of the first page if you have\nquestions. This letter serves to close this file. \n\nVery truly yours, \n\nMATT HARTMAN\nAssistant Attorney General\nPublic Access Bureau\n\n52871 71a proper co\n\ncc: \n\nThe Honorable Jay W. Ukena, Chief Judge\nCircuit Court, Nineteenth Judicial Circuit\nLake County, Illinois\n18 North County Street\nWaukegan, Illinois 60085\n\nThe Circuit Court is not subject to requirements of FOIA. See Copley Press, Inc. v. \n\nAdministrative Office of the Courts, 271 111. App. 3d 548, 553 (1995) (\" The lack of any reference to the courts or\njudiciary must be taken as an intent to exclude the judiciary from the disclosure requirements of the Act.\"). \n\nJudicial Circuit Court (April 20, 2018) \n\nSCourt Surveillance/ Body Camera Video Request Form, Administrative Office of the Nineteenth"}
{"id":913,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-02-01","case_number":null,"request_numbers":["53007","53008","53009"],"title":"University of Illinois improperly withheld IRB research investigation records under multiple exemptions","filename":"53007 53008 53009, issued February 1, 2019.pdf","rel_path":null,"word_count":3759,"summary":"The University of Illinois withheld portions of records related to a research investigation, citing various FOIA exemptions and the Medical Studies Act. The PAC determined the University improperly withheld portions of letters detailing findings and corrective actions from an IRB review process.","plain_summary":"A reporter requested records from the University of Illinois regarding an investigation into a professor's research. The University redacted or withheld portions of the records, citing exemptions under state and federal law. The Illinois Attorney General's Public Access Bureau concluded that the University improperly denied portions of the records responsive to the requests.","holding":"The University of Illinois improperly denied portions of records responsive to three FOIA requests.","legal_question":"Whether the University of Illinois properly applied FOIA exemptions 7(1)(a), (b), (c), (f), (j)(ii), (j)(iv), and (n), as well as the Medical Studies Act, to withhold records concerning an IRB research investigation.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7(1)(f)","7(1)(j)(ii)","7(1)(j)(iv)","7(1)(n)"],"public_body":"University of Illinois","requesting_party":"Ms. Jodi S. Cohen (ProPublica Illinois)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"research investigation","subject_description":"The records concern an internal University of Illinois investigation into a professor's research and the associated Institutional Review Board (IRB) process.","ocr_status":"ok","ocr_quality":93,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_j/53007%2053008%2053009%2C%20issued%20February%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["university records","research investigation","IRB","redactions","FOIA exemptions"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nFebruary 1,  2019\n\nVia electronic mail\n\nMs.  Jodi S.  Cohen\n\nProPublica Illinois\n\n1 North State Street,  Suite 1500\n\n[street address redacted for site publication -- see original PDF]\nJodi. Cohen@Propublica. org\n\nVia electronic mail\n\nMr.  Thomas P.  Hardy\nExecutive Director and Chief Records Officer\n\nUniversity of Illinois\n1737 West Polk Street\n\nChicago,  Illinois 60612- 7228\n\nfoia-our@mx. illinois.edu\n\nRE:  FOIA Request for Review — 2018 PAC 53007,  53008 and 53009\n\nDear Ms.  Cohen and Mr. Hardy: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2016)).  For the reasons stated below, the\nPublic Access Bureau concludes that the University of Illinois ( University)  improperly denied\nportions of records responsive to three FOIA requests submitted by Ms.  Jodi Cohen. \n\nOn February 21,  2018,  Ms.  Cohen submitted a FOIA request to the University\n\nseeking seven records or categories of records referenced in a November 28,  2017,  letter related\nto an investigation into Professor Mani Pavuluri' s research.  On March 7,  2018,  the University\nprovided certain records but redacted or withheld portions pursuant\n7( 1)( c),  7( 1)( 0, 7( 1)(\n\nto sections 7( 1)( a),  7( 1)( b), \n1)( b), ( 1)( c), \n\niv),  and 7( 1)( n)  of FOIA ( 5 ILCS 140/ 7( 1)( a), (\n\nii),  7( 1)(\n\nj)(\n\nj)( ii), ( 1)(\n\n1)( 0, ( 1)(\nUniversity asserted that section 8- 2101 of the Code of Civil Procedure ( Medical Studies Act) \n735 ILCS 5/ 8- 2101 ( West 2016))  and Federal\nregulations ( 42 C. F. R. §  93. 108( a), ( c) ( 2018)) \nprohibited disclosure of letters dated March 22,  2013,  and April 8,  2013.  On May 3,  2018,  Ms. \n\nIn connection with section 7( 1)( a),  the\n\nj)(\nj)( iv), ( 1)( n) ( West 2017 Supp.)). \n\n500 South Second Street,  Springfield, \n\n100 West Randolph Street,  Chicago, \n\nIllinois 62706 • (\nIllinois,  60601 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \nTTY: ( 312)  814- 3374 • \n312)  814- 3000 • \n\nFax: ( 217)  782- 7046\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs.  Jodi S.  Cohen\n\nMr. Thomas P.  Hardy\nFebruary 1,  2019\nPage 2\n\nCohen submitted a Request for Review ( 2018 PAC 53007)  contesting the redaction or\nwithholding of letters dated March 22,  2013,  and April 8,  2013. \n\nOn March 9,  2018,  Ms.  Cohen submitted another FOIA request\nseeking eight letters or reports with specific dates concerning the investigation into Professor\nPavuluri's research.  On March 23,  2018,  the University provided responsive records but\nredacted portions of a May 22,  2013,  letter pursuant\n140/ 7( 1)(\n\nf) (West 2017 Supp.)).  On May 3,  2018,  Ms.  Cohen submitted a Request for Review\n\nf) of FOIA ( 5 ILCS\n\nto section 7( 1)(\n\nto the University\n\n2018 PAC 53009)  disputing those redactions. \n\nto the University\nOn March 28,  2018,  Ms.  Cohen submitted a third FOIA request\nseeking five records or categories of records related to Professor Pavuluri' s research grants.  On\nApril 11,  2018,  the University responded that it did not possess any records responsive to the\nfifth part of the request and denied the other four parts pursuant\nof FOIA (\n\nj)( ii) ( West 2017 Supp.)). \nthe University again asserted that section 8- 2101 of the Medical Studies Act and section 93. 108\nof title 42 of the Code of Federal Regulations prohibited disclosure of the records.  On May 3, \n2018,  Ms.  Cohen submitted a Request\nfor Review ( 2018 PAC 53008)  contesting the redaction or\nwithholding of letters dated September 23,  2015,  and October 26,  2015,  and documents attached\nto September 28,  2015,  and November 6,  2015,  e- mails from Dr. Teresa D.  Johnston to \" IRPT\n\nj)( ii) \nIn connection with section 7( 1)( a), \n\nto sections 7( 1)( a)  and 7( 1)(\n\n5 ILCS 140/ 7( 1)( a), (\n\n1)(\n\nHHS/ OASH).\"' \n\nOn May 11,  2018,  the Public Access Bureau sent each Request for Review to the\n\nUniversity and asked it to provide copies of the records at issue together with a detailed\nexplanation of the factual and legal bases for the applicability of the exemptions under which\nthose records were denied.  On June 8,  2018,  the University furnished copies of the records and a\nconsolidated response letter clarifying that it redacted or denied the records in these matters\npursuant to sections 7( 1)( a),  based on section 8- 2101 of the Medical Studies Act, and 7( 1)(\nFOIA.  In connection with 2018 PAC 53008,  the University also clarified that the documents\nattached to the September 28,  2015,  and November 6,  2015,  e- mails are the same September 23, \n\nf) of\n\n2015,  and October 26,  2015,  letters that were denied in response to the underlying request. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health,  218 Ill.  2d 390,  415 ( 2006).  A public body \" has the burden\n\nthe Attorney General,  Public Access Bureau ( May 3,  2018),  at 4. \n\nLetter from Jodi S.  Cohen,  ProPublica Illinois,  to Sarah Pratt,  Public Access Counselor,  Office of\n\n\fMs. Jodi S.  Cohen\n\nMr. Thomas P.  Hardy\n\ni February 1,  2019\n\nPage 3\n\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016). \n\nSections 7( 1)( a)  and 7( 1)( f) of FOIA\n\nSection 7( 1)( a)  of FOIA exempts from inspection and copying \"[\n\ni] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" ( Emphasis added.) \"[ A] n exemption restricting the\nexpansive nature of the FOIA' s disclosure provisions must be explicitly stated -that is,  such a\nproposed disclosure must be specifically prohibited.\" ( Emphasis in original.)  Better Gov' t Ass' n\nv.  Blagojevich,  386 Ill. App.  3d 808,  816 ( 4th Dist.  2008). \n\nThe records denied in their entireties pursuant to section 7( 1)( a)  consist of four\nfrom a University Institutional Review Board ( IRB)  to\n\nletters concerning research misconduct\nthe United States Department of Health and Human Services.  The United States Food and Drug\nAdministration requires IRBs to review and monitor biochemical research \" to protect the rights\n\nand welfare of humans participating as subjects in the research.  To accomplish this purpose, \nIRBs use a group process to review research protocols and related materials ( e. g.,  informed\nconsent documents and investigator brochures)  to ensure protection of the rights and welfare of\nhuman subjects of research.\"  2 The University' s response to this office asserts that disclosure of\nthe IRB letters is specifically prohibited by section 8- 2101 of the Medical Studies Act. \n\nf)  exempts from inspection and copying \"[ p] reliminary drafts,  notes, \nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\n\nSection 7( 1)(\n\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 70)( f) exemption applies to \" inter-  and intra -agency predecisional and deliberative\nmaterial.\"  Harwood v.  McDonough,  344 Ill. App. 3d 242,  247 ( 1st Dist. 2003). \nthe deliberative process exemption in Federal FOIA, 3 the United States Supreme Court held that\ncommunications with third parties that have independent\ngovernment benefit from the public body' s final decision cannot be characterized as intra -agency\ncommunications.  Department ofInterior v. Klamath Water Users Protective Ass' n,  532 U. S.  1, \n14- 15,  121 S.  Ct.  1060 1069 ( 2001). \n\ninterests and that stand to obtain a\n\nIn construing\n\nInformation Sheet,  https:// www. fda. gov/ Regulatorytnformation/ Guidances/ ucm126420. htm ( last visited November\n\n2U. S.  Food &  Drug Administration, \n\nInstitutional Review Board Frequently Asked Questions — \n\n26,  2018). \n\n35 U. S. C. §  552( b)( 5) ( 2000). \n\n\fMs.  Jodi S.  Cohen\n\nMr. Thomas P.  Hardy\nFebruary 1,  2019\nPage 4\n\nPursuant to section 7( 1) W, the University redacted the substantive portions of a\n\nfifth letter that responded to issues about Professor Pavuluri' s research raised by the National\nInstitute of Mental Health,  which is part of the United States Department of Health and Human\nServices.  Although the University' s response to this office acknowledged that the University and\nfederal agencies have independent interests in this matter,  it cited Klamath°  in support of its\n\nassertion that the letter is exempt\ncommunication\n\nthat\n\nis privileged under the MSA. \n\nfrom disclosure under section 7( 1)(\n\nf) as an inter -agency\n\nSection 8- 2101 of the MSA provides: \n\nInformation obtained.  All information,  interviews, reports, \n\nstatements,  memoranda,  recommendations,  letters of reference or\n\nother third party confidential assessments of a health care\npractitioner' s professional competence,  or other data of the Illinois\n\nDepartment of Public Health, local health departments,  the\nDepartment of Human Services ( as successor to the Department of\n\nMental Health and Developmental Disabilities),  the Mental Health\n\nand Developmental Disabilities Medical Review Board,  Illinois\n\nState Medical Society,  allied medical societies,  health maintenance\norganizations,  medical organizations under contract with health\n\nmaintenance organizations or with insurance or other health care\n\ndelivery entities or facilities,  tissue banks,  organ procurement\nagencies,  physician -owned insurance companies and their agents, \n\ncommittees of ambulatory surgical\n\ntreatment centers or post- \n\nsurgical recovery centers or their medical staffs,  or committees of\nlicensed or accredited hospitals or their medical staffs, \n\nincluding Patient Care Audit Committees,  Medical Care\nEvaluation Committees,  Utilization Review Committees, \n\nCredential Committees and Executive Committees,  or their\n\ndesignees ( but not the medical records pertaining to the patient), \nused in the course of internal quality control or of medical\nstudy for the purpose of reducing morbidity or mortality,  or\nfor improving patient care or increasing organ and tissue\ndonation,  shall be privileged,  strictly confidential and shall be\nused only for medical\ndonation,  the evaluation and improvement of quality care,  or\ngranting,  limiting or revoking staff privileges or agreements\n\nresearch,  increasing organ and tissue\n\n4\"\n\nTo qualify,  a document must * * * \n\nsatisfy two conditions:  its source must be a Government\n\nagency,  and it must fall within the ambit of a privilege against discovery under judicial standards that would govern\nlitigation against the agency that holds it.\"  Klamath,  532 U. S.  at 8,  121 S.  Ct.  at 1065. \n\n\fMs. Jodi S.  Cohen\n\nMr. Thomas P.  Hardy\nFebruary 1,  2019\nPage 5\n\nfor services,  except that in any health maintenance organization\nproceeding to decide upon a physician' s services or any hospital or\nambulatory surgical\ntreatment center proceeding to decide upon a\nphysician' s staff privileges,  or in any judicial review of either,  the\nclaim of confidentiality shall not be invoked to deny such\nphysician access to or use of data upon which such a decision was\n\nbased. ( Emphasis added.) \n\nThe purpose of the Medical Studies Act is to encourage candid and voluntary\n\nstudies and programs used to improve hospital conditions and patient care or to reduce the rates\n\nof death and disease.\"  Grosshuesch v.  Edward Hospital,  2017 IL App ( 2d)  160972, ¶ 15,  83\nN. E. 3d 1185,  1189 ( 2017).  Section 8- 2101 of the Act \" protects against disclosure of the\n\nmechanisms of the peer -review process,  including information gathering and deliberation leading\nto the ultimate decision rendered by a hospital peer -review committee.\"  Chicago Trust Co.,  v. \nCook County Hospital,  298 111.  App.  3d 396,  402 ( 1st Dist. 2003). \nIt does not,  however, \" apply\nto the restrictions that may be imposed as a result of that process.\"  Richter v.  Diamond,  108 I11. \n2d 265,  269 ( 1985);  Nielson v.  SwedishAmerican Hospital,  2017 IL App ( 2d)  160743, ¶ 38,  80\nN. E. 3d 706,  715 ( 2017) (\" Results of the peer -review process are not privileged and are\n\ndiscoverable.\"). ( Emphasis in original.)). \n\nResults \" take the form of ultimate decisions made or actions taken by that\n\ncommittee,  or the hospital,  and include the revocation,  modification or restriction of privileges, \n\nletters of resignation or withdrawal,  and the revision of rules,  regulations,  policies and\n\nprocedures for medical staff.\"  Ardisana v.  Northwest Community Hospital,  Inc.,  342 Ill. App.  3d\n741,  747 ( 1st Dist.  2003);  see also Anderson v. Rush - Copley Medical Center,  Inc.,  385 Ill.  App. \n3d 167,  181 ( 2nd Dist. 2008) (\" actual changes,  such as modifications to hospital policy or\nprocedure,  that were adopted [ by the hospital]  as a direct result of the recommendations\nintemal conclusions in the Action Plan must be disclosed,  as they constitute the ' ultimate\ndecisions made or actions taken'  as a result of the peer - review process.\");  Green v.  Lake Forest\n\nand\n\nHospital,  355 111.  App.  3d 134,  138 ( 2d Dist.  2002) (\" findings of a peer -review committee are not\nprivileged under\n\nthe Act.\"). \n\nThe letters denied in their entireties pursuant\n\nto section 7( 1)( a)  on the basis of the\n\nMSA detail an IRB' s findings and corrective actions concerning research misconduct.  The letter\nredacted pursuant to section 7( 1)( f) on the basis that it is an inter -agency communication\nprivileged under the MSA was sent to the National\ndirector of the Office for the Protection of Research Subjects and the vice chancellor for\n\nInstitute of Mental Health by the University' s\n\nresearch.  The brief, unredacted portion states: \" Thank you for providing the University of\nIllinois at Chicago ( UIC) the opportunity to respond to the issue NIHM raises regarding Dr. \nPavuluri' s research. \n\nIt is hoped that the Agency will find the actions taken to date to be\n\n\fMs.  Jodi S.  Cohen\nMr. Thomas P.  Hardy\nFebruary 1,  2019\nPage 6\n\nsatisfactory and reflective of our Institution's commitment regarding the protection of human\nsubjects participating in research at UIC.\" 5\n\nThe University' s response to this office stated that the confidentiality provisions\n\nof the MSA apply to the University because it is an allied medical society and a medical\norganization under contract with health maintenance organizations or with insurance or other\nhealth care delivery entities or facilities.  Although Ms.  Cohen does not dispute the applicability\nof the MSA to the University' s peer review process,  she asserts that the MSA' s confidentiality\nprovisions do not apply to information originating from IRB files.  According to Ms.  Cohen, \nsection 8- 2101 of the MSA does not prohibit disclosure of the letters because they \" were created\nfor purposes of meeting the University's obligation to report certain events to [ the United States\nthey were not created and used exclusively for the\nDepartment of Health and Human Services], \npurposes of peer review or quality improvement,  and,  consequently,  do not fall within the\nprotections of the MSA.\" 7 ( Emphasis in original.). \n\nWe disagree.  In Doe v. Illinois Masonic Medical Center, 297 Ill. App. 3d 240, \n\n244 ( 1st Dist.  1998),  the Illinois Appellate Court ruled that a hospital' s IRB was \" a ' committee of\nthe hospital\"'  within the scope of section 8- 2101 of the MSA.  The court rejected the assertion\nthat the confidentiality provisions of the MSA are only applicable to peer review committees and\nlaw: \" The IRB here\nthat IRBs are excluded from the MSA because they are creatures of Federal\nqualifies as the type of committee covered by the Act.  Although we believe that peer review\nfunctions are probably an inherent and inextricable part of the IRB' s review process,  promoting\npeer review is not the only purpose of the Act.\" ( Emphasis in original.)  Doe,  297 Ill. App.  3d at\n243- 44.  The court went on to conclude that section 8- 2101 of the MSA prohibited disclosure of\nrecords related to a genetic testing procedure which were submitted to a hospital' s IRB.  Doe, \n\n5Letter from James H.  Fischer,  PharmD,  Director, Office for the Protection of Research Subjects, \n\nHuman Protections Administrator,  and Mitra Dutta,  PhD,  Vice Chancellor\nProfessor,  Department of Electrical and Computer Engineering,  to Rebecca Claycamp,  M. S.,  CRA,  Chief Grants\nManagement Officer, National Institute of Mental Health ( May 22,  2013),  at 1. \n\nfor Research,  UIC Distinguished\n\n6Section 46. 103( b)( 5)  of title 45 of the Code of Federal Regulations ( 45 C. F.R. §  46. 103( b)( 5) \n\n2018))  provides: \" Written procedures for ensuring prompt reporting to the IRB appropriate institutional officials, \nand the department or agency head of (i)  any unanticipated problems involving risks to subjects or others or any\nserious or continuing noncompliance with this policy or the requirements or determinations of the IRB and ( ii) any\nsuspension or termination of IRB approval.\" \n\nLetter from Jodi S.  Cohen,  ProPublica Illinois,  to Sarah Pratt,  Public Access Counselor,  Office of\n\nthe Attorney General,  Public Access Bureau ( May 3,  2018),  at 7. \n\n\fMs.  Jodi S.  Cohen\n\nMr. Thomas P.  Hardy\nFebruary 1,  2019\nPage 7\n\n297 Ill. App.  3d at 245- 46.8 Further,  it is irrelevant for purposes of section 8- 2101 of the MSA\nthat an external source prompted the creation of records that clearly concern internal quality\ncontrol.  See Anderson,  385 Ill. App.  3d at 182 ( characterizing as a \" red herring\"  the fact that an\naction plan created by a hospital' s peer review committee may have been mandated by the Joint\nCommission on Accreditation of Healthcare Organizations). \n\nThe letters at issue pertain to allegations of research misconduct\n\nin connection\n\nwith a medical study.  Based on this office' s confidential\nfor purposes that\nreviewed those allegations were concerned about\nincluded improving patient care.  Portions of the letters describing fact gathering and other\naspects of this internal quality control process fall squarely within the scope of section 8- 2101 of\nthe MSA.  Therefore,  the University did not improperly withhold those portions of the letters\npursuant to section 7( 1)( a)  of FOIA. \n\nreview,  the IRB and medical staff who\n\ninternal quality control\n\nThe letters,  however,  largely consist of the IRB' s findings and corrective actions\n\nthat resulted from the IRB review process.  Such results are not confidential under the Act. \nArdisana 342111.  App.  3d at 747.  Because section 8- 2101 of the MSA does not prohibit\ndisclosure of these results,  this office concludes that the University has not sustained its burden\nof demonstrating that the letters are exempt from disclosure in their entireties pursuant to section\n70 )(a)  of FOIA.  That finding compels the conclusion that portions of the letter to the National\nInstitute of Mental Health detailing the corrective actions taken to protect human research\nsubjects are not exempt from disclosure pursuant to section 7( 1)(\ninter -agency communications that are privileged under the MSA.9\n\nf) because they do not constitute\n\nSections 7( 1)( j)(ii)  and 7( 1)( j)(iv) \n\nThe University response to the request in 2018 PAC 53008 also cited section\n7( 1)(\nj)( ii), which exempts from disclosure \" information received by a primary or secondary\nschool,  college,  or university under its procedures for the evaluation of faculty members by their\nacademic peers.\"  The University' s response to this office stated: \" deliberations,  opinions and\nregarding the peer evaluations or that the University had received during the\nrecommendations\n\n8In her reply to this office,  Ms.  Cohen cited three court decisions that concluded medical studies\n\noverseen by IRBs are not encompassed by peer review statutes in other states.  P.J. ex.  rel. Jensen v.  Utah,  247\nF. R. D.  664 ( D.  Utah 2007);  Esdale v. American Community Mutual Insurance Co.,  1995 WL 263479 ( N. D. Ill., \n1995);  Konardy v.  Osterling,  149 F. R.D.  592 ( D.  Minn.  1992).  Those decisions did not analyze section 8- 2101 of\nthe MSA and therefore have no relevance to this matter in Tight of the Doe court' s decision that the Act covers IRBs. \n\n9Because that determination is dispositive, this office declines to address whether the independent\n\ninterests of the University and the Department excluded the letter\n\nfrom the scope of section 7(\n\n1)(\n\nf). \n\n\fs. Jodi S.  Cohen\n\nMr. Thomas P.  Hardy\nFebruary 1,  2019\nPage 8\n\ncourse of the peer review process were withheld or redacted from the responsive records. il°  In\naddition,  the University' s response to this office cited section 7( 1)(\n\niv)  of FOIA,  stating that\n\nj)(\n\ni] nformation contained in both the letters and the research protocols contains information that\nj)( iv) \n\nthe University generated during the peer review and research process. ill The section 7( 1)(\nexemption applies to \" course materials or research materials used by faculty members.\" \n\nThe University has not demonstrated that sections 7( 1)(\n\nj)(\n\nii) and 7( 1)(\n\nj)( iv)  apply\n\nto the findings and corrective actions resulting from the IRB review process.  As discussed\nabove,  the IRB review process monitors research to protect\nsubjects;  there is no indication that it is among the University' s procedures for evaluating faculty\nmembers even though monitoring the research may include the conduct of researchers.  Further, \nbecause the results of the IRB review process were not generated by research or used to conduct\nresearch,  they do not constitute \" research materials used by faculty members.\"  Accordingly,  this\noffice concludes that the results of the IRB review process are not exempt\n\nthe rights and welfare of research\n\nfrom disclosure\n\npursuant to section 7( 1)(\n\nj)( ii) or 7( 1)(\n\nj)( iv) of FOIA. \n\nIn accordance with the conclusions expressed above,  this office requests that the\n\nUniversity disclose to Ms. Cohen portions of the letters reflecting the findings and corrective\nactions resulting from the IRB review process.  The Public Access Counselor has determined\nthat resolution of this matter does not require the issuance of a binding opinion.  If you have any\nquestions,  please contact me at ( 312)  814- 6756.  This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n53007 53008 53009 f 71a proper improper 71f improper univ 71jii improper 71jiv improper univ\n\n10Letter\n\nfrom Thomas P.  Hardy,  Executive Director and Chief Records Officer,  University of\n\nIllinois System,  to Joshua Jones,  Deputy Public Access Bureau Chief, Office of the Public Access Bureau,  Office of\nthe Illinois Attorney General ( June 8,  2018),  at 12. \n\nIlLetter from Thomas P.  Hardy,  Executive Director and Chief Records Officer,  University of\n\nIllinois System,  to Joshua Jones,  Deputy Public Access Bureau Chief, Office of the Public Access Bureau,  Office of\nthe Illinois Attorney General ( June 8,  2018),  at 12. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An internal investigation into a professor's research and IRB process","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53007/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nFebruary 1, 2019\n\nVia electronic mail\n\nMs. Jodi S. Cohen\n\nProPublica Illinois\n\n1 North State Street, Suite 1500\n\n[street address redacted for site publication -- see original PDF]\nJodi. Cohen@Propublica. org\n\nVia electronic mail\n\nMr. Thomas P. Hardy\nExecutive Director and Chief Records Officer\n\nUniversity of Illinois\n1737 West Polk Street\n\nChicago, Illinois 60612- 7228\n\nfoia-our@mx. illinois.edu\n\nRE: FOIA Request for Review — 2018 PAC 53007, 53008 and 53009\n\nDear Ms. Cohen and Mr. Hardy: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons stated below, the\nPublic Access Bureau concludes that the University of Illinois (University) improperly denied\nportions of records responsive to three FOIA requests submitted by Ms. Jodi Cohen. \n\nOn February 21, 2018, Ms. Cohen submitted a FOIA request to the University\n\nseeking seven records or categories of records referenced in a November 28, 2017, letter related\nto an investigation into Professor Mani Pavuluri's research. On March 7, 2018, the University\nprovided certain records but redacted or withheld portions pursuant\n7(1)(c), 7(1)(0, 7(1)(to sections 7(1)(a), 7(1)(b), \n1)(b), (1)(c), \n\niv), and 7(1)(n) of FOIA (5 ILCS 140/ 7(1)(a), (ii), 7(1)(j)(j)(ii), (1)(1)(0, (1)(University asserted that section 8- 2101 of the Code of Civil Procedure (Medical Studies Act) \n735 ILCS 5/ 8- 2101 (West 2016)) and Federal\nregulations (42 C. F. R. § 93. 108(a), (c) (2018)) \nprohibited disclosure of letters dated March 22, 2013, and April 8, 2013. On May 3, 2018, Ms. \n\nIn connection with section 7(1)(a), the\n\nj)(j)(iv), (1)(n) (West 2017 Supp.)). \n\nCohen submitted a Request for Review (2018 PAC 53007) contesting the redaction or\nwithholding of letters dated March 22, 2013, and April 8, 2013. \n\nOn March 9, 2018, Ms. Cohen submitted another FOIA request\nseeking eight letters or reports with specific dates concerning the investigation into Professor\nPavuluri's research. On March 23, 2018, the University provided responsive records but\nredacted portions of a May 22, 2013, letter pursuant\n140/ 7(1)(f) (West 2017 Supp.)). On May 3, 2018, Ms. Cohen submitted a Request for Review\n\nf) of FOIA (5 ILCS\n\nto section 7(1)(to the University\n\n2018 PAC 53009) disputing those redactions. \n\nto the University\nOn March 28, 2018, Ms. Cohen submitted a third FOIA request\nseeking five records or categories of records related to Professor Pavuluri's research grants. On\nApril 11, 2018, the University responded that it did not possess any records responsive to the\nfifth part of the request and denied the other four parts pursuant\nof FOIA (j)(ii) (West 2017 Supp.)). \nthe University again asserted that section 8- 2101 of the Medical Studies Act and section 93. 108\nof title 42 of the Code of Federal Regulations prohibited disclosure of the records. On May 3, \n2018, Ms. Cohen submitted a Request\nfor Review (2018 PAC 53008) contesting the redaction or\nwithholding of letters dated September 23, 2015, and October 26, 2015, and documents attached\nto September 28, 2015, and November 6, 2015, e- mails from Dr. Teresa D. Johnston to \" IRPT\n\nj)(ii) \nIn connection with section 7(1)(a), \n\nto sections 7(1)(a) and 7(1)(5 ILCS 140/ 7(1)(a), (1)(HHS/ OASH).\"' \n\nOn May 11, 2018, the Public Access Bureau sent each Request for Review to the\n\nUniversity and asked it to provide copies of the records at issue together with a detailed\nexplanation of the factual and legal bases for the applicability of the exemptions under which\nthose records were denied. On June 8, 2018, the University furnished copies of the records and a\nconsolidated response letter clarifying that it redacted or denied the records in these matters\npursuant to sections 7(1)(a), based on section 8- 2101 of the Medical Studies Act, and 7(1)(FOIA. In connection with 2018 PAC 53008, the University also clarified that the documents\nattached to the September 28, 2015, and November 6, 2015, e- mails are the same September 23, \n\nf) of\n\n2015, and October 26, 2015, letters that were denied in response to the underlying request. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\n\nthe Attorney General, Public Access Bureau (May 3, 2018), at 4. \n\nLetter from Jodi S. Cohen, ProPublica Illinois, to Sarah Pratt, Public Access Counselor, Office of\n\nMs. Jodi S. Cohen\n\nMr. Thomas P. Hardy\n\ni \n\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). \n\nSections 7(1)(a) and 7(1)(f) of FOIA\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[\n\ni] nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" (Emphasis added.) \"[ A] n exemption restricting the\nexpansive nature of the FOIA's disclosure provisions must be explicitly stated -that is, such a\nproposed disclosure must be specifically prohibited.\" (Emphasis in original.) Better Gov' t Ass' n\nv. Blagojevich, 386 Ill. App. 3d 808, 816 (4th Dist. 2008). \n\nThe records denied in their entireties pursuant to section 7(1)(a) consist of four\nfrom a University Institutional Review Board (IRB) to\n\nletters concerning research misconduct\nthe United States Department of Health and Human Services. The United States Food and Drug\nAdministration requires IRBs to review and monitor biochemical research \" to protect the rights\n\nand welfare of humans participating as subjects in the research. To accomplish this purpose, \nIRBs use a group process to review research protocols and related materials (e. g., informed\nconsent documents and investigator brochures) to ensure protection of the rights and welfare of\nhuman subjects of research.\" 2 The University's response to this office asserts that disclosure of\nthe IRB letters is specifically prohibited by section 8- 2101 of the Medical Studies Act. \n\nf) exempts from inspection and copying \"[ p] reliminary drafts, notes, \nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7(1)(actions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 70)(f) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). \nthe deliberative process exemption in Federal FOIA, 3 the United States Supreme Court held that\ncommunications with third parties that have independent\ngovernment benefit from the public body's final decision cannot be characterized as intra -agency\ncommunications. Department ofInterior v. Klamath Water Users Protective Ass' n, 532 U. S. 1, \n14- 15, 121 S. Ct. 1060 1069 (2001). \n\ninterests and that stand to obtain a\n\nIn construing\n\nInformation Sheet, https:// www. fda. gov/ Regulatorytnformation/ Guidances/ ucm126420. htm (last visited November\n\nPursuant to section 7(1) W, the University redacted the substantive portions of a\n\nfifth letter that responded to issues about Professor Pavuluri's research raised by the National\nInstitute of Mental Health, which is part of the United States Department of Health and Human\nServices. Although the University's response to this office acknowledged that the University and\nfederal agencies have independent interests in this matter, it cited Klamath° in support of its\n\nassertion that the letter is exempt\ncommunication\n\nthat\n\nis privileged under the MSA. \n\nfrom disclosure under section 7(1)(f) as an inter -agency\n\nSection 8- 2101 of the MSA provides: \n\nInformation obtained. All information, interviews, reports, \n\nstatements, memoranda, recommendations, letters of reference or\n\nother third party confidential assessments of a health care\npractitioner's professional competence, or other data of the Illinois\n\nDepartment of Public Health, local health departments, the\nDepartment of Human Services (as successor to the Department of\n\nMental Health and Developmental Disabilities), the Mental Health\n\nand Developmental Disabilities Medical Review Board, Illinois\n\nState Medical Society, allied medical societies, health maintenance\norganizations, medical organizations under contract with health\n\nmaintenance organizations or with insurance or other health care\n\ndelivery entities or facilities, tissue banks, organ procurement\nagencies, physician -owned insurance companies and their agents, \n\ncommittees of ambulatory surgical\n\ntreatment centers or post- \n\nsurgical recovery centers or their medical staffs, or committees of\nlicensed or accredited hospitals or their medical staffs, \n\nincluding Patient Care Audit Committees, Medical Care\nEvaluation Committees, Utilization Review Committees, \n\nCredential Committees and Executive Committees, or their\n\ndesignees (but not the medical records pertaining to the patient), \nused in the course of internal quality control or of medical\nstudy for the purpose of reducing morbidity or mortality, or\nfor improving patient care or increasing organ and tissue\ndonation, shall be privileged, strictly confidential and shall be\nused only for medical\ndonation, the evaluation and improvement of quality care, or\ngranting, limiting or revoking staff privileges or agreements\n\nresearch, increasing organ and tissue\n\n4\"\n\nTo qualify, a document must * * * \n\nsatisfy two conditions: its source must be a Government\n\nagency, and it must fall within the ambit of a privilege against discovery under judicial standards that would govern\nlitigation against the agency that holds it.\" Klamath, 532 U. S. at 8, 121 S. Ct. at 1065. \n\nfor services, except that in any health maintenance organization\nproceeding to decide upon a physician's services or any hospital or\nambulatory surgical\ntreatment center proceeding to decide upon a\nphysician's staff privileges, or in any judicial review of either, the\nclaim of confidentiality shall not be invoked to deny such\nphysician access to or use of data upon which such a decision was\n\nbased. (Emphasis added.) \n\nThe purpose of the Medical Studies Act is to encourage candid and voluntary\n\nstudies and programs used to improve hospital conditions and patient care or to reduce the rates\n\nof death and disease.\" Grosshuesch v. Edward Hospital, 2017 IL App (2d) 160972, ¶ 15, 83\nN. E. 3d 1185, 1189 (2017). Section 8- 2101 of the Act \" protects against disclosure of the\n\nmechanisms of the peer -review process, including information gathering and deliberation leading\nto the ultimate decision rendered by a hospital peer -review committee.\" Chicago Trust Co., v. \nCook County Hospital, 298 111. App. 3d 396, 402 (1st Dist. 2003). \nIt does not, however, \" apply\nto the restrictions that may be imposed as a result of that process.\" Richter v. Diamond, 108 I11. \n2d 265, 269 (1985); Nielson v. SwedishAmerican Hospital, 2017 IL App (2d) 160743, ¶ 38, 80\nN. E. 3d 706, 715 (2017) (\" Results of the peer -review process are not privileged and are\n\ndiscoverable.\"). (Emphasis in original.)). \n\nResults \" take the form of ultimate decisions made or actions taken by that\n\ncommittee, or the hospital, and include the revocation, modification or restriction of privileges, \n\nletters of resignation or withdrawal, and the revision of rules, regulations, policies and\n\nprocedures for medical staff.\" Ardisana v. Northwest Community Hospital, Inc., 342 Ill. App. 3d\n741, 747 (1st Dist. 2003); see also Anderson v. Rush - Copley Medical Center, Inc., 385 Ill. App. \n3d 167, 181 (2nd Dist. 2008) (\" actual changes, such as modifications to hospital policy or\nprocedure, that were adopted [ by the hospital] as a direct result of the recommendations\nintemal conclusions in the Action Plan must be disclosed, as they constitute the ' ultimate\ndecisions made or actions taken' as a result of the peer - review process.\"); Green v. Lake Forest\n\nand\n\nHospital, 355 111. App. 3d 134, 138 (2d Dist. 2002) (\" findings of a peer -review committee are not\nprivileged under\n\nthe Act.\"). \n\nThe letters denied in their entireties pursuant\n\nto section 7(1)(a) on the basis of the\n\nMSA detail an IRB's findings and corrective actions concerning research misconduct. The letter\nredacted pursuant to section 7(1)(f) on the basis that it is an inter -agency communication\nprivileged under the MSA was sent to the National\ndirector of the Office for the Protection of Research Subjects and the vice chancellor for\n\nInstitute of Mental Health by the University's\n\nresearch. The brief, unredacted portion states: \" Thank you for providing the University of\nIllinois at Chicago (UIC) the opportunity to respond to the issue NIHM raises regarding Dr. \n\nsatisfactory and reflective of our Institution's commitment regarding the protection of human\nsubjects participating in research at UIC.\" 5\n\nThe University's response to this office stated that the confidentiality provisions\n\nof the MSA apply to the University because it is an allied medical society and a medical\norganization under contract with health maintenance organizations or with insurance or other\nhealth care delivery entities or facilities. Although Ms. Cohen does not dispute the applicability\nof the MSA to the University's peer review process, she asserts that the MSA's confidentiality\nprovisions do not apply to information originating from IRB files. According to Ms. Cohen, \nsection 8- 2101 of the MSA does not prohibit disclosure of the letters because they \" were created\nfor purposes of meeting the University's obligation to report certain events to [ the United States\nthey were not created and used exclusively for the\nDepartment of Health and Human Services], \npurposes of peer review or quality improvement, and, consequently, do not fall within the\nprotections of the MSA.\" 7 (Emphasis in original.). \n\nWe disagree. In Doe v. Illinois Masonic Medical Center, 297 Ill. App. 3d 240, \n\n244 (1st Dist. 1998), the Illinois Appellate Court ruled that a hospital's IRB was \" a ' committee of\nthe hospital\"' within the scope of section 8- 2101 of the MSA. The court rejected the assertion\nthat the confidentiality provisions of the MSA are only applicable to peer review committees and\nlaw: \" The IRB here\nthat IRBs are excluded from the MSA because they are creatures of Federal\nqualifies as the type of committee covered by the Act. Although we believe that peer review\nfunctions are probably an inherent and inextricable part of the IRB's review process, promoting\npeer review is not the only purpose of the Act.\" (Emphasis in original.) Doe, 297 Ill. App. 3d at\n243- 44. The court went on to conclude that section 8- 2101 of the MSA prohibited disclosure of\nrecords related to a genetic testing procedure which were submitted to a hospital's IRB. Doe, \n\n5 Letter from James H. Fischer, PharmD, Director, Office for the Protection of Research Subjects, \n\nHuman Protections Administrator, and Mitra Dutta, PhD, Vice Chancellor\nProfessor, Department of Electrical and Computer Engineering, to Rebecca Claycamp, M. S., CRA, Chief Grants\nManagement Officer, National Institute of Mental Health (May 22, 2013), at 1. \n\nfor Research, UIC Distinguished\n\n6 Section 46. 103(b)(5) of title 45 of the Code of Federal Regulations (45 C. F.R. § 46. 103(b)(5) \n\n2018)) provides: \" Written procedures for ensuring prompt reporting to the IRB appropriate institutional officials, \nand the department or agency head of (i) any unanticipated problems involving risks to subjects or others or any\nserious or continuing noncompliance with this policy or the requirements or determinations of the IRB and (ii) any\nsuspension or termination of IRB approval.\" \n\nLetter from Jodi S. Cohen, ProPublica Illinois, to Sarah Pratt, Public Access Counselor, Office of\n\n297 Ill. App. 3d at 245- 46.8 Further, it is irrelevant for purposes of section 8- 2101 of the MSA\nthat an external source prompted the creation of records that clearly concern internal quality\ncontrol. See Anderson, 385 Ill. App. 3d at 182 (characterizing as a \" red herring\" the fact that an\naction plan created by a hospital's peer review committee may have been mandated by the Joint\nCommission on Accreditation of Healthcare Organizations). \n\nThe letters at issue pertain to allegations of research misconduct\n\nin connection\n\nwith a medical study. Based on this office's confidential\nfor purposes that\nreviewed those allegations were concerned about\nincluded improving patient care. Portions of the letters describing fact gathering and other\naspects of this internal quality control process fall squarely within the scope of section 8- 2101 of\nthe MSA. Therefore, the University did not improperly withhold those portions of the letters\npursuant to section 7(1)(a) of FOIA. \n\nreview, the IRB and medical staff who\n\ninternal quality control\n\nThe letters, however, largely consist of the IRB's findings and corrective actions\n\nthat resulted from the IRB review process. Such results are not confidential under the Act. \nArdisana 342111. App. 3d at 747. Because section 8- 2101 of the MSA does not prohibit\ndisclosure of these results, this office concludes that the University has not sustained its burden\nof demonstrating that the letters are exempt from disclosure in their entireties pursuant to section\n70)(a) of FOIA. That finding compels the conclusion that portions of the letter to the National\nInstitute of Mental Health detailing the corrective actions taken to protect human research\nsubjects are not exempt from disclosure pursuant to section 7(1)(inter -agency communications that are privileged under the MSA.9\n\nf) because they do not constitute\n\nSections 7(1)(j)(ii) and 7(1)(j)(iv) \n\nThe University response to the request in 2018 PAC 53008 also cited section\n7(1)(j)(ii), which exempts from disclosure \" information received by a primary or secondary\nschool, college, or university under its procedures for the evaluation of faculty members by their\nacademic peers.\" The University's response to this office stated: \" deliberations, opinions and\nregarding the peer evaluations or that the University had received during the\nrecommendations\n\n8 In her reply to this office, Ms. Cohen cited three court decisions that concluded medical studies\n\noverseen by IRBs are not encompassed by peer review statutes in other states. P.J. ex. rel. Jensen v. Utah, 247\nF. R. D. 664 (D. Utah 2007); Esdale v. American Community Mutual Insurance Co., 1995 WL 263479 (N. D. Ill., \n1995); Konardy v. Osterling, 149 F. R.D. 592 (D. Minn. 1992). Those decisions did not analyze section 8- 2101 of\nthe MSA and therefore have no relevance to this matter in Tight of the Doe court's decision that the Act covers IRBs. \n\n9 Because that determination is dispositive, this office declines to address whether the independent\n\ncourse of the peer review process were withheld or redacted from the responsive records. il° In\naddition, the University's response to this office cited section 7(1)(iv) of FOIA, stating that\n\nj)(i] nformation contained in both the letters and the research protocols contains information that\nj)(iv) \n\nthe University generated during the peer review and research process. ill The section 7(1)(exemption applies to \" course materials or research materials used by faculty members.\" \n\nThe University has not demonstrated that sections 7(1)(j)(ii) and 7(1)(j)(iv) apply\n\nto the findings and corrective actions resulting from the IRB review process. As discussed\nabove, the IRB review process monitors research to protect\nsubjects; there is no indication that it is among the University's procedures for evaluating faculty\nmembers even though monitoring the research may include the conduct of researchers. Further, \nbecause the results of the IRB review process were not generated by research or used to conduct\nresearch, they do not constitute \" research materials used by faculty members.\" Accordingly, this\noffice concludes that the results of the IRB review process are not exempt\n\nthe rights and welfare of research\n\nfrom disclosure\n\npursuant to section 7(1)(j)(ii) or 7(1)(j)(iv) of FOIA. \n\nIn accordance with the conclusions expressed above, this office requests that the\n\nUniversity disclose to Ms. Cohen portions of the letters reflecting the findings and corrective\nactions resulting from the IRB review process. The Public Access Counselor has determined\nthat resolution of this matter does not require the issuance of a binding opinion. If you have any\nquestions, please contact me at (312) 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n53007 53008 53009 f 71a proper improper 71f improper univ 71jii improper 71jiv improper univ\n\n10 Letter\n\nfrom Thomas P. Hardy, Executive Director and Chief Records Officer, University of\n\nIllinois System, to Joshua Jones, Deputy Public Access Bureau Chief, Office of the Public Access Bureau, Office of\nthe Illinois Attorney General (June 8, 2018), at 12. \n\nIlLetter from Thomas P. Hardy, Executive Director and Chief Records Officer, University of\n\nIllinois System, to Joshua Jones, Deputy Public Access Bureau Chief, Office of the Public Access Bureau, Office of\nthe Illinois Attorney General (June 8, 2018), at 12."}
{"id":914,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-10-19","case_number":null,"request_numbers":["53415"],"title":"Oswego School District 308 properly withheld surveillance video of minors under FOIA exemptions","filename":"53415, issued October 19, 2018.pdf","rel_path":null,"word_count":1185,"summary":"A requester sought surveillance video of incidents involving his son at a school gymnasium, which the school district denied citing student and minor privacy exemptions. The PAC determined the district properly withheld the records because they identified minors participating in park district programs.","plain_summary":"A parent requested school surveillance videos involving his child, but the school district refused to release them to protect the privacy of other students. The Attorney General's office reviewed the videos and agreed that the school district was allowed to withhold them because the footage identified other minors participating in after-school programs. This means the school district followed the law in denying the request.","holding":"The School District did not improperly withhold the requested video footage.","legal_question":"Whether surveillance video footage of minors participating in after-school programs is exempt from disclosure under FOIA sections 7(1)(c), 7(1)(ee), and 7(1)(ff).","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(ee)","7(1)(ff)"],"public_body":"Oswego Community Unit School District No. 308","requesting_party":"a parent","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"student records","subject_description":"Surveillance video footage of minors in a school gymnasium.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_ee/53415%2C%20issued%20October%2019%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["student privacy","surveillance video","minor identification","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 19,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs.  Maureen Anichini Lemon\nOttosen Britz Kelly Cooper Gilbert &  DiNolfo,  LTD. \n1804 North Naper Boulevard\n\n[street address redacted for site publication -- see original PDF]\nmlemonna ottosenbritz. com\n\nRE:  FOIA Request for Review — 2018 PAC 53415\n\nDear\n\nand Ms.  Lemon: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons set forth below, the\n\nPublic Access Bureau concludes that Oswego Community Unit School District No.  308 ( School\nDistrict)  did not improperly withhold video footage depicting students in response to\n\nFOIA request. \n\nOn April 23,  2018, \n\nsubmitted a FOIA request\n\nto the School District\n\nseeking copies of surveillance video recordings with audio of incidents involving his son in the\nBoulder Hill Elementary School gymnasium.  On April 26,  2018,  the School District responded\nthat the recordings do not contain audio and denied the video footage pursuant\n\nto sections\n\n7( 1)( c),  7( 1)( ee),  and 7( 1)(\n\nff) of FOIA ( 5 ILCS 140/ 7( 1)( c), (\n\n1)( ee), ( 1)( ff) (West 2017 Supp.)). \n\nasked this office to review that denial. \n\nOn July 5,  2018,  this office sent a copy of the Request\n\nfor Review to the School\n\nDistrict and asked it to provide copies of the recordings for this office' s confidential review, and\n\na detailed explanation of the factual and legal bases for the applicability of the section 7( 1)( c), \n7( 1)( ee),  and 7( 1)( ff) exemptions.  On August 10,  2018,  counsel for the School District provided\n\nthose materials and asserted in her written response that the recordings are also exempt from\n\ndisclosure pursuant\nAugust 15,  2018,  this office sent a copy of that response to\n\nto section 7. 5( r)  of FOIA ( 5 ILCS 140/ 7. 5( r) ( West 2017 Supp.)).  On\nhe did not reply. \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 • \n\nTTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • ( 312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMs. Maureen Anichini Lemon\n\nOctober 19,  2018\n\nPage 2\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of' proving by clear and convincing evidence that it is exempt.\"  5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 7. 5( r) of FOIA\n\nSection 7. 5( r)  of FOIA exempts from inspection and copying \"[\nprohibited from being disclosed by the Illinois School Student Records Act [ ISSRA].\"  Section\n6( a)  of ISSRA ( 105 ILCS 10/ 6( a) ( West 2016))  further provides: \n\ni] nformation\n\nNo school student records or information contained therein\n\nmay be released,  transferred,  disclosed or otherwise disseminated, \nexcept as follows: \n\n1)  To a parent or student or person specifically\n\ndesignated as a representative by a parent,  as provided in\nparagraph ( a)  of Section 5[.] ( Emphasis added.) \n\nSection 5( a)  of ISSRA ( 105 ILCSA 10/ 5( a) ( West 2016),  as amended by Public Act 100- 532, \nshall have the right to inspect all\neffective September 22,  2017)  provides that \"[ a]  parent * * * \nschool permanent and temporary records of that parent' s child.\" ( Emphasis added.) \n\nA \"school student record\"  is broadly defined as \" any writing or other recorded\n\ninformation concerning a student and by which a student may be individually identified, \nmaintained by a school or at its direction or by an employee of a. school,  regardless of how or\n105 ILCS 10/ 2( d) ( West 2016).  An administrative rule\nwhere the information is stored.\" \nimplementing ISSRA generally excludes from that definition \"[ v] ideo or other electronic\n\nrecordings created and maintained * * * \n\nfor security or safety reasons or purposes,  provided the\n\ninformation was created at\n\n23 111.  Adm.  Code § 375. 10 ( 2018), \n\nleast in part for law enforcement or security or safety reasons or\nlast amended at 42 Ill. Reg.  5899,  effective\n\npurposes[.]\" \n\nMarch 15,  2018).  However, \"[ t] he content of a video or other electronic recording may become\npart of a student' s school student record to the extent school officials use and maintain this\n\ncontent for a particular reason ( e. g.,  disciplinary action,  compliance with a student' s\nIndividualized Education Program)  regarding that specific student.\" \n2018),  last amended at 42 Ill. Reg.  5899,  effective March 15,  2018). \n\n23 Ill. Adm. Code § 375. 10\n\nThe School District' s response to this office confirmed that the videos in question\n\n\fMs.  Maureen Anichini Lemon\n\nOctober 19,  2018\n\nPage 3\n\nwere created for security and safety purposes.  The response further stated that \"[ b] ecause school\nofficials have not used or maintained the recordings for a particular reason regarding the\nrequester' s student,  the videos have not become part of that child' s school educational\nThe School District did not assert that the recordings have become part of any other child' s\nschool student record,  either.  Thus,  these recordings do not constitute \" school student records,\" \nand they are neither exempt from disclosure under section 7. 5( r)  of FOIA nor required to be\nto section 5( a)  of ISSRA. \ndisclosed to\n\npursuant\n\nrecord.\"' \n\nSection 7( 1)( ee)  of FOIA\n\nSection 7( 1)( ee)  exempts from disclosure: \" The names,  addresses,  or other\ninformation of persons who are minors and are also participants and registrants in\n\npersonal\nprograms of park districts,  forest preserve districts,  conservation districts,  recreation agencies, \n\nand special recreation associations.\"  The School District' s response to this office stated that the\nprograms depicted in the videos are Oswego Park District after- school programs for minors. \n\nBased on its plain language,  the section 7( 1)( ee)  exemption is intended to protect\n\ninformation that personally identifies minors who participate in park district programs.  Although\nthe recordings appear to provide' only limited insight into any interactions between children\nbecause of the camera angles and lack of audio,  they personally identify numerous minors\nparticipating in Oswego Park District after- school programs Accordingly,  this office concludes\nthat the School District did not improperly withhold them pursuant to section 7( 1)( ee)  of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  If you have any questions,  please contact me at\n312- 814- 6756.  This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n53415 f 71a improper 7lee proper sd\n\nLetter from Maureen Anichini Lemon,  Ottosen Britz Kelly Cooper Gilbert &  DiNolfo,  LTD.,  to\nSteve Silverman,  Bureau Chief,  Public Access Bureau,  Office of the Attorney General,  State of Illinois ( August 10, \n2018),  at 3. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Surveillance video of minors in a school gymnasium","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53415/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nOctober 19, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Maureen Anichini Lemon\nOttosen Britz Kelly Cooper Gilbert & DiNolfo, LTD. \n1804 North Naper Boulevard\n\n[street address redacted for site publication -- see original PDF]\nmlemonna ottosenbritz. com\n\nRE: FOIA Request for Review — 2018 PAC 53415\n\nDear\n\nand Ms. Lemon: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that Oswego Community Unit School District No. 308 (School\nDistrict) did not improperly withhold video footage depicting students in response to\n\nFOIA request. \n\nOn April 23, 2018, \n\nsubmitted a FOIA request\n\nto the School District\n\nseeking copies of surveillance video recordings with audio of incidents involving his son in the\nBoulder Hill Elementary School gymnasium. On April 26, 2018, the School District responded\nthat the recordings do not contain audio and denied the video footage pursuant\n\nto sections\n\n7(1)(c), 7(1)(ee), and 7(1)(ff) of FOIA (5 ILCS 140/ 7(1)(c), (1)(ee), (1)(ff) (West 2017 Supp.)). \n\nasked this office to review that denial. \n\nOn July 5, 2018, this office sent a copy of the Request\n\nfor Review to the School\n\nDistrict and asked it to provide copies of the recordings for this office's confidential review, and\n\na detailed explanation of the factual and legal bases for the applicability of the section 7(1)(c), \n7(1)(ee), and 7(1)(ff) exemptions. On August 10, 2018, counsel for the School District provided\n\nthose materials and asserted in her written response that the recordings are also exempt from\n\ndisclosure pursuant\nAugust 15, 2018, this office sent a copy of that response to\n\nto section 7. 5(r) of FOIA (5 ILCS 140/ 7. 5(r) (West 2017 Supp.)). On\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of' proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 (West 2016). \n\nSection 7. 5(r) of FOIA\n\nSection 7. 5(r) of FOIA exempts from inspection and copying \"[\nprohibited from being disclosed by the Illinois School Student Records Act [ ISSRA].\" Section\n6(a) of ISSRA (105 ILCS 10/ 6(a) (West 2016)) further provides: \n\ni] nformation\n\nNo school student records or information contained therein\n\nmay be released, transferred, disclosed or otherwise disseminated, \nexcept as follows: \n\n1) To a parent or student or person specifically\n\ndesignated as a representative by a parent, as provided in\nparagraph (a) of Section 5[.] (Emphasis added.) \n\nSection 5(a) of ISSRA (105 ILCSA 10/ 5(a) (West 2016), as amended by Public Act 100- 532, \nshall have the right to inspect all\neffective September 22, 2017) provides that \"[ a] parent * * * \nschool permanent and temporary records of that parent's child.\" (Emphasis added.) \n\nA \"school student record\" is broadly defined as \" any writing or other recorded\n\ninformation concerning a student and by which a student may be individually identified, \nmaintained by a school or at its direction or by an employee of a. school, regardless of how or\n105 ILCS 10/ 2(d) (West 2016). An administrative rule\nwhere the information is stored.\" \nimplementing ISSRA generally excludes from that definition \"[ v] ideo or other electronic\n\nrecordings created and maintained * * * \n\nfor security or safety reasons or purposes, provided the\n\ninformation was created at\n\n23 111. Adm. Code § 375. 10 (2018), \n\nleast in part for law enforcement or security or safety reasons or\nlast amended at 42 Ill. Reg. 5899, effective\n\npurposes[.]\" \n\nMarch 15, 2018). However, \"[ t] he content of a video or other electronic recording may become\npart of a student's school student record to the extent school officials use and maintain this\n\nwere created for security and safety purposes. The response further stated that \"[ b] ecause school\nofficials have not used or maintained the recordings for a particular reason regarding the\nrequester's student, the videos have not become part of that child's school educational\nThe School District did not assert that the recordings have become part of any other child's\nschool student record, either. Thus, these recordings do not constitute \" school student records,\" \nand they are neither exempt from disclosure under section 7. 5(r) of FOIA nor required to be\nto section 5(a) of ISSRA. \ndisclosed to\n\npursuant\n\nrecord.\"' \n\nSection 7(1)(ee) of FOIA\n\nSection 7(1)(ee) exempts from disclosure: \" The names, addresses, or other\ninformation of persons who are minors and are also participants and registrants in\n\npersonal\nprograms of park districts, forest preserve districts, conservation districts, recreation agencies, \n\nand special recreation associations.\" The School District's response to this office stated that the\nprograms depicted in the videos are Oswego Park District after- school programs for minors. \n\nBased on its plain language, the section 7(1)(ee) exemption is intended to protect\n\ninformation that personally identifies minors who participate in park district programs. Although\nthe recordings appear to provide' only limited insight into any interactions between children\nbecause of the camera angles and lack of audio, they personally identify numerous minors\nparticipating in Oswego Park District after- school programs Accordingly, this office concludes\nthat the School District did not improperly withhold them pursuant to section 7(1)(ee) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312- 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n53415 f 71a improper 7lee proper sd\n\nLetter from Maureen Anichini Lemon, Ottosen Britz Kelly Cooper Gilbert & DiNolfo, LTD., to\nSteve Silverman, Bureau Chief, Public Access Bureau, Office of the Attorney General, State of Illinois (August 10, \n2018), at 3."}
{"id":915,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-01-08","case_number":null,"request_numbers":["53612"],"title":"City of Peru did not violate FOIA by charging copying fee for paper records","filename":"53612, issued January 8, 2019.pdf","rel_path":null,"word_count":3051,"summary":"The requester challenged the City of Peru's imposition of copying fees for records related to a property acquisition. The PAC determined the City did not violate FOIA by charging for copies, though it reminded the City of its obligation to provide the first 50 pages free of charge and to mail records without postage fees.","plain_summary":"A requester challenged the fees charged by the City of Peru for paper copies of public records. The Illinois Attorney General's Public Access Bureau concluded that the City did not violate FOIA by charging a copying fee for paper copies in response to the request. The Bureau found that the City's response was timely because the requester agreed to an extension, and that the City was not required to provide electronic copies of records maintained solely in paper format.","holding":"The City of Peru did not violate FOIA by charging a copying fee for paper copies in response to the request.","legal_question":"Whether the City of Peru violated FOIA by charging a copying fee for paper records requested by the complainant.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Peru","requesting_party":"Ms. Julie L. Ajster","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The request concerned documents related to the City of Peru's property acquisition involving a Dollar General store.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_e/May-reach-written-agreement-for-longer-extension/53612%2C%20issued%20January%208%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","copying fees","postage","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 8,  2019\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs.  Julie L. Ajster\n\nAjster Law Office\n\nP. O.  Box 255\n\n[street address redacted for site publication -- see original PDF]\najster@comcast. net\n\nVia electronic mail\n\nMs.  Stephanie Piscia\n\nDeputy City Clerk\nFOIA/ OMA Compliance Officer\n\nCity of Peru\n1901 4th Street\n\nPeru,  Illinois 61354\n\nspiscia@peru.\n\nil. us\n\nRE:  FOIA Request for Review — 2018 PAC 53612\n\nDear Ms.  Ajster and Ms.  Piscia: \n\nThis determination letter is issued pursuant to section 9. 5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Peru ( City)  did not violate FOIA by charging a\ncopying fee for paper copies in response to Ms.  Julie L.  Ajster' s March 28,  2018,  FOIA request. \n\nOn that date,  Ms. Ajster, on behalf of a client, submitted a FOIA request to the\n\nCity stating\n\nPursuant to the Freedom of Information Act, I am\n\nrequesting documents relating to the Dollar General Store located\non Peoria Street in the City of Peru.  I am requesting any and all\ndocuments relating to Dollar General and the acquisition of the\nproperty located at the corner of 6th and Peoria Streets from the\nCity of Peru.  I am also requesting copies of any and all emails, \nmemos or other correspondence between Peru' s Economic\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 6181 529- 6416\n\n\fMs.  Julie L.  Ajster\n\nMs.  Stephanie Piscia\n\nJanuary 8,  2019\nPage 2\n\nDevelopment Director Bob Vickrey and/ or anyone else from the\nCity of Peru and any and all representatives from Dollar General. \n\nPlease respond within 10 days. 111\n\nOn that same date,  the City informed Ms.  Ajster that \" there [ was]  a substantial amount of\ninformation to copy,\"  and asked whether she sought specific records or all records that the City\nhad on file.\n\nI need everything you have.  If you need additional\n\nIn reply,  Ms.  Ajster stated: \"\n\n2\n\ntime,  that is fine.\"  On April 16,  2018,  at 9: 20 a. m.,  the City' s FOIA Officer,  Ms.  Stephanie\nPiscia,  notified Ms.  Ajster: \" I will have your documents ready today. There is a lot of\ninformation.  I will have a dollar amount for you shortly and let you know when they are\navailable. i4 At 9: 45 a.m. on that same date,  Ms. Piscia notified Ms. Ajster: \" I have your request\n\nready for pickup.  There is a total of 1554 documents.  The total for the request is $ 225. 60. i5\n\nOn June 15,  2018,  this office received Ms. Ajster' s Request for Review disputing\n\nthe copying charge.  She asserted that she had previously sent dozens of FOIA requests to the\nCity and had received copies of the responsive records in an electronic format at no cost.  She\ncontended that the City violated FOIA by: ( 1) \" charging [ her]  for photocopies of documents\nwhich should have been produced free of charge in electronic\ncomplaining in public and in the newspaper about FOIA requests[;]\" (\nwith an estimate as to the cost of [her]  FOIA request prior to preparing a FOIA response[;]\" (\ndemanding [ she]  pick up the documents rather than mailing them to [ her][;]\"  and ( 5) \" stating to\nthe News Tribune that the FOIA response was free when it is not and they are refusing to release\n\nform[;]\" ( 2) \" repeatedly\n\n3) \" not providing [ her] \n\n4) \n\nE- mail from Attomey Julie L.  Ajster,  Ajster Law Office,  to Stephanie Piscia ( March 28,  2018). \n\nto [ Julie L.  Ajster] ( March 28,  2018). \n\n2E - mail\n\nfrom Stephanie Piscia,  Deputy City Clerk,  FOIA/ OMA Compliance Officer,  City of Peru, \n\n3E -mail from Julie L.  Ajster,  Ajster Law Office,  to Stephanie Piscia ( March 28,  2018). \n\nto Julie [ L.  Ajster] ( April 16,  2018). \n\n4E -mail from Stephanie Piscia,  Deputy City Clerk, FOIA/ OMA Compliance Officer, City of Peru. \n\n5E -mail\nto [ Julie L.  Ajster] ( April\n\nfrom Stephanie Piscia,  Deputy City Clerk,  FOIA/ OMA Compliance Officer,  City of Peru, \n16,  2018). \n\n\fMs.  Julie L.  Ajster\n\nMs.  Stephanie Piscia\n\nJanuary 8,  2019\nPage 3\n\nthe documents until [she]  pay[ s] $ 225.60.\" 6 Ms. Ajster enclosed copies of news articles in which\nshe stated, \" the City of Peru was complaining about the number of FOIA requests.\" 7\n\nOn June 25,  2018,  this office forwarded a copy of the Request for Review to the\nCity and asked it to address the allegations in Ms.  Ajster's Request for Review.  This office also\nasked the City to address the timeliness of its response to her request, and to clarify whether any\nof the requested records were maintained in an electronic format.  On June 27,  2018,  the City\nprovided a written response and copies of its correspondence with Ms.  Ajster regarding the\nrequest.  On July 3,  2018,  this office forwarded a copy of the City's response to Ms. Ajster;  she\ndid not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2014);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health,  218 Ill.  2d 390,  415 ( 2006). \n\nAs an initial matter,  the Public Access Counselor' s authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act ( 5 ILCS 120/ 1 et seq. ( West\n2016)).  See 15 ILCS 205/ 7( c)( 3) ( West 2016).  FOIA governs the disclosure of existing public\nrecords;  it does not dictate the manner in which a public body may comment to media outlets or\nthe general public about FOIA requests it has received.  Accordingly, this office is not authorized\nto review allegations concerning public statements that the City made regarding FOIA requests. \n\nTurning to whether the copying fee that the City assessed was permissible,  section\n\n3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2016))  provides that \"[ e] ach public body shall make\navailable to any person for inspection or copying all public records,  except as otherwise provided\nin Sections 7 and 8. 5 of this Act.\"  Section 3( d)  of FOIA ( 5 ILCS 140/ 3( d) ( West 2016))  states\n\nthat a public body shall \" either comply with or deny a request\nbusiness days after its receipt of the request[.]\"  Section 3( d)  further states that \"[ a]  public body\nthat fails to respond to a request within the requisite periods in this Section but thereafter\n\nfor public records within 5\n\nprovides the requester with copies of the requested public records may not impose a fee for such\ncopies.\"  Section 3( e)  of FOIA ( 5 ILCS 140/ 3( e) ( West 2016))  permits a public body to extend\nthe time to respond by 5 business days from the original due date for any of seven enumerated\n\nGeneral ( June 15,  2018),  at 2. \n\nLetter from Julie L. Ajster. Ajster Law Office, to Public Access Counselor,  Illinois Attorney\n\nGeneral ( Jane 15,  2018),  at\n\n1. \n\nLetter from Julie L.  Ajster.  Ajster Law Office,  to Public Access Counselor,  Illinois Attorney\n\n\fMs.  Julie L.  Ajster\n\nMs.  Stephanie Piscia\n\nJanuary 8,  2019\nPage 4\n\nreasons,  and also provides that \"[ t] he person making a request and the public body may agree in\nwriting to extend the time for compliance for a period to be determined by the parties.\" \n\nWith regard to electronic copies,  section 6( a)  of FOIA (5 ILCS 140/ 6( a) ( West\n\n2016))  provides: \n\nWhen a person requests a copy of a record maintained in an\n\nelectronic format,  the public body shall furnish it in the electronic\nformat specified by the requester,  if feasible.  If it is not feasible to\nfurnish the public records in the specified electronic format,  then\nthe public body shall furnish it in the format in which it is\nmaintained by the public body,  or in paper format at the option of\nthe requester. \n\nThe Public Access Bureau \" has previously determined that section 6( a)  of FOIA does not require\na public body to furnish in electronic format records maintained solely in paper format,  even if\nthe public body has resources to reproduce those records in PDF.\" \nLtr. 28697,  issued April 18,  2014, at 2.  In addition,  section 6( b)  of FOIA (5 ILCS 140/ 6( b) \n\nIll.  Att' y Gen.  PAC Req.  Rev. \n\nWest 2016)),  which concerns fees for paper copies,  provides,  in pertinent part: \n\nExcept when a fee is otherwise fixed by statute,  each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person,  of the equipment of the public body to copy\nrecords.  No fees shall be charged for the first 50 pages of black\n\nand white,  letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall not\nexceed 15 cents per page.  If a public body provides copies in color\nor in a size other than letter or legal,  the public body may not\ncharge more than its actual cost for reproducing the records. \n\nIn its response to this office,  the City addressed the timeliness of its response to\n\nthe\nMs.  Ajster' s request by explaining that when it e- mailed Ms.  Ajster on March 28,  2018,  about\nsize of her request,  Ms.  Ajster expressed that she was fine with the City taking additional time to\nrespond.  This office has reviewed a copy of the e- mail exchange between the City and Ms. \nAjster and confirmed that she granted the City extra time to respond.  While the parties did not\ndiscuss or agree on a specific due date for the City' s response,  Ms.  Ajster did not express that she\nsought any limitations to the additional\ntime for response or otherwise indicate any objections to\nan extension.  Consequently, \nextend the City' s time for compliance.  See Garlick v.  Bloomingdale\n\nthis office concludes that the correspondence was sufficient\n\nto\nTwp.,  2018 IL App ( 2d) \n\n\fMs.  Julie L.  Ajster\n\nMs.  Stephanie Piscia\n\nJanuary 8,  2019\nPage 5\n\n171013, ¶ 37, _  N. E. 3d _ ( 2018) ( concluding that a requester' s reply to a public body that an\nanswer by a particular date \" would be appreciated\"  was sufficient to extend the time for\ncompliance to that date).  Therefore,  for purposes of assessing a copying fee.  this office\nconcludes that the City' s April 16,  2018,  response was timely. \n\nDiscussing its rationale for assessing Ms.  Ajster a copying fee for paper copies\n\nrather than providing her with electronic copies free of charge,  the City explained: \n\nWhen a request of this size is received and it is determined\n\nthat multiple departments and/ or individuals will be providing\ndocumentation,  we ask that they gather from paper files or print\nout related electronic files so that all information can be compiled\n\nin a central location.  Based on this method it is difficult to\n\ndetermine which documents were copied from a paper file or\n\nprinted from an electronic source. \ncommunication with those that provided documentation that as\n\nIt is my belief based on\n\nmuch as 50%  of the documents were copied from an electronic\nformat. l81\n\nThe City questioned whether Ms.  Ajster should be liable for half of the fee given its estimate that\nhalf of the records did not exist in an electronic format. \n\nBecause a public body is not required to provide electronic copies of records that\n\nare maintained solely in paper format,  the City was not required to convert\nrecords maintained in paper format\ninto an electronic format.  As to the remaining records, \nsection 6( a)  of FOIA provides,  in pertinent part,  that \" the public body shall furnish it in the\nelectronic format specified by the requester,  if feasible.\" ( Emphasis added.)  As also quoted\nabove, the next sentence of section 6( a)  again references \" the specified electronic format.\" \n\nthe responsive\n\nEmphasis added.)  Accordingly,  section 6( a)  of FOIA signifies that when a request specifies that\nit\nit seeks electronic copies,  the public body must provide electronic copies of records that\nmaintains in an electronic format,  free of charge.  Even if a requester specifies an electronic\n\nformat and the public body does not maintain the electronic records in that format,  the public\nbody must either convert the electronic records to that format,  if feasible,  or provide the\nrequester with electronic copies of the records in the electronic format in which they are\nmaintained or paper copies at the option of the requester.  Here,  Ms.  Ajster' s request did not\n\nspecify that she sought electronic copies.  Although Ms. Ajster contended that the City had\npreviously provided her with copies of records electronically,  the City did not,  by that course of\n\nGeneral ( June 27,  2018). \n\nBLetter from Stephanie Piscia,  City of Peru FOIA Officer,  to Teresa Lim,  Assistant Attorney\n\n\fMs.  Julie L. Ajster\n\nMs.  Stephanie Piscia\n\nJanuary 8,  2019\nPage 6\n\naction, bind itself to providing all future responsive records electronically regardless of the\nformat in which they are maintained. \n\nThe current copying fee dispute potentially could have been avoided in part if the\nCity had provided Ms.  Ajster with a fee estimate prior to beginning to make copies of the records\nmaintained only in paper format.  Nonetheless,  although FOIA requires that a public body\nprovide fee estimates for voluminous requests, 9 it does not set forth a similar requirement for\nnon -voluminous requests.  Here,  the City did not assert that the request was a voluminous\nrequest and,  therefore,  the City was not required to provide an estimate of the fees to be charged. \nSee I11.  Att' y Gen.  PAC Req.  Rev.  Ltr.  41192,  issued September 8,  2017,  at 4 ( concluding that a\npublic body was not required to provide an estimate of fees to be charged or provide an\nopportunity to narrow a request where the public body did not assert that the request was a\nvoluminous request).  Further, although Ms.  Ajster alleged that the City had claimed to the News\nTribune that FOIA responses are free, sections 6( a)  and 6( b)  of FOIA expressly permit a public\nIn this case,  the total cost of\nbody to charge for certain costs involved in reproducing records. \n\n225. 60 reflects a charge of 15 cents per page for the 1554 pages of documents after 50 free\n\npages.  Thus, the City' s fee is permissible under section 6(b)  of FOIA.  Under these\ncircumstances,  this office concludes that the copying fee the City assessed did not violate FOIA. \nStill, because it appears that Ms. Ajster would have had the right to obtain copies of\napproximately half of the records free of charge if she had specified that she sought electronic\ncopies,  and because she may have reasonably believed that it was not necessary to specify that\nshe sought electronic copies in order to receive electronic copies of the records maintained\n\nelectronically in light of her previous FOIA correspondence with the City,  the City' s idea about\nhalving the copying fee sounds reasonable. \n\nLastly,  with regard to Ms.  Ajster's claim that the City required her to pick up the\npaper copies rather than mailing them to her, it appears that the City contemplated an in- person\n\n9Section 3. 6( c)  of FOIA ( 5 ILCS 140/ 3. 6( c) ( West 2016))  provides: \n\nIf a request continues to be a voluminous request following the\nrequesters response under subsection ( b)  of this Section or the requester fails to\nrespond, the public body shall respond within the earlier of 5 business days after\nit receives the response from the requester or 5 business days after the final day\nfor the requester to respond to the public body' s notification under this\nsubsection.  The response shall: ( i)  provide an estimate of thefees to be\ncharged, which the public body may require the person to pay in full before\ncopying the requested documents; ( ii)  deny the request pursuant to one or more\nof the exemptions set out in this Act; (iii) notify the requester that the request is\nunduly burdensome and extend an opportunity to the requester to attempt to\nreduce the request to manageable proportions;  or ( iv) provide the records\n\nrequested. ( Emphasis added.) \n\n\fs. Julie L.  Ajster\n\nMs. Stephanie Piscia\n\nJanuary 8,  2019\nPage 7\n\nfor the copies.  Although a public body may require receipt of the\n\nexchange of payment\nauthorized copying fee prior to providing a requester with copies of responsive records,  this\noffice has previously determined that \" FOIA requires a public body to mail copies of records\nwhen the requester has provided the public body with a mailing address;  the public body may not\nimpose a fee for the cost of the regular postage.\"  See Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 41192, \nissued September 8,  2017, at 4.  Here,  the City did not dispute Ms. Ajster' s claim or otherwise\nindicate that it would mail\nthis office\nreminds the City to offer requesters the opportunity to receive paper copies by regular mail once\nthey have paid any requisite copying fees.  Further,  if it has not already done so,  this office\nrequests that the City mail copies of the first 50 pages of responsive documents at no cost to Ms. \nAjster. \n\nthe responsive records at no additional cost.  Consequently, \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53612 f 6a fee proper 6b fee proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Documents about a city's property acquisition for a Dollar General store","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53612/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 8, 2019\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMs. Julie L. Ajster\n\nAjster Law Office\n\nP. O. Box 255\n\n[street address redacted for site publication -- see original PDF]\najster@comcast. net\n\nVia electronic mail\n\nMs. Stephanie Piscia\n\nDeputy City Clerk\nFOIA/ OMA Compliance Officer\n\nCity of Peru\n1901 4th Street\n\nPeru, Illinois 61354\n\nspiscia@peru.\n\nil. us\n\nRE: FOIA Request for Review — 2018 PAC 53612\n\nDear Ms. Ajster and Ms. Piscia: \n\nThis determination letter is issued pursuant to section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Peru (City) did not violate FOIA by charging a\ncopying fee for paper copies in response to Ms. Julie L. Ajster's March 28, 2018, FOIA request. \n\nOn that date, Ms. Ajster, on behalf of a client, submitted a FOIA request to the\n\nCity stating\n\nPursuant to the Freedom of Information Act, I am\n\nrequesting documents relating to the Dollar General Store located\non Peoria Street in the City of Peru. I am requesting any and all\ndocuments relating to Dollar General and the acquisition of the\nproperty located at the corner of 6th and Peoria Streets from the\nCity of Peru. I am also requesting copies of any and all emails, \nmemos or other correspondence between Peru's Economic\n\nDevelopment Director Bob Vickrey and/ or anyone else from the\nCity of Peru and any and all representatives from Dollar General. \n\nPlease respond within 10 days. 111\n\nOn that same date, the City informed Ms. Ajster that \" there [ was] a substantial amount of\ninformation to copy,\" and asked whether she sought specific records or all records that the City\nhad on file.\n\nI need everything you have. If you need additional\n\nIn reply, Ms. Ajster stated: \"\n\n2\n\ntime, that is fine.\" On April 16, 2018, at 9: 20 a. m., the City's FOIA Officer, Ms. Stephanie\nPiscia, notified Ms. Ajster: \" I will have your documents ready today. There is a lot of\ninformation. I will have a dollar amount for you shortly and let you know when they are\navailable. i4 At 9: 45 a.m. on that same date, Ms. Piscia notified Ms. Ajster: \" I have your request\n\nready for pickup. There is a total of 1554 documents. The total for the request is $ 225. 60. i5\n\nOn June 15, 2018, this office received Ms. Ajster's Request for Review disputing\n\nthe copying charge. She asserted that she had previously sent dozens of FOIA requests to the\nCity and had received copies of the responsive records in an electronic format at no cost. She\ncontended that the City violated FOIA by: (1) \" charging [ her] for photocopies of documents\nwhich should have been produced free of charge in electronic\ncomplaining in public and in the newspaper about FOIA requests[;]\" (with an estimate as to the cost of [her] FOIA request prior to preparing a FOIA response[;]\" (demanding [ she] pick up the documents rather than mailing them to [ her][;]\" and (5) \" stating to\nthe News Tribune that the FOIA response was free when it is not and they are refusing to release\n\nform[;]\" (2) \" repeatedly\n\n3) \" not providing [ her] \n\n4) \n\nE- mail from Attomey Julie L. Ajster, Ajster Law Office, to Stephanie Piscia (March 28, 2018). \n\nto [ Julie L. Ajster] (March 28, 2018). \n\n2E - mail\n\nfrom Stephanie Piscia, Deputy City Clerk, FOIA/ OMA Compliance Officer, City of Peru, \n\n3E -mail from Julie L. Ajster, Ajster Law Office, to Stephanie Piscia (March 28, 2018). \n\nto Julie [ L. Ajster] (April 16, 2018). \n\n4E -mail from Stephanie Piscia, Deputy City Clerk, FOIA/ OMA Compliance Officer, City of Peru. \n\nthe documents until [she] pay[ s] $ 225.60.\" 6 Ms. Ajster enclosed copies of news articles in which\nshe stated, \" the City of Peru was complaining about the number of FOIA requests.\" 7\n\nOn June 25, 2018, this office forwarded a copy of the Request for Review to the\nCity and asked it to address the allegations in Ms. Ajster's Request for Review. This office also\nasked the City to address the timeliness of its response to her request, and to clarify whether any\nof the requested records were maintained in an electronic format. On June 27, 2018, the City\nprovided a written response and copies of its correspondence with Ms. Ajster regarding the\nrequest. On July 3, 2018, this office forwarded a copy of the City's response to Ms. Ajster; she\ndid not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2014); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). \n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act (5 ILCS 120/ 1 et seq. (West\n2016)). See 15 ILCS 205/ 7(c)(3) (West 2016). FOIA governs the disclosure of existing public\nrecords; it does not dictate the manner in which a public body may comment to media outlets or\nthe general public about FOIA requests it has received. Accordingly, this office is not authorized\nto review allegations concerning public statements that the City made regarding FOIA requests. \n\nTurning to whether the copying fee that the City assessed was permissible, section\n\n3(a) of FOIA (5 ILCS 140/ 3(a) (West 2016)) provides that \"[ e] ach public body shall make\navailable to any person for inspection or copying all public records, except as otherwise provided\nin Sections 7 and 8. 5 of this Act.\" Section 3(d) of FOIA (5 ILCS 140/ 3(d) (West 2016)) states\n\nthat a public body shall \" either comply with or deny a request\nbusiness days after its receipt of the request[.]\" Section 3(d) further states that \"[ a] public body\nthat fails to respond to a request within the requisite periods in this Section but thereafter\n\nfor public records within 5\n\nprovides the requester with copies of the requested public records may not impose a fee for such\ncopies.\" Section 3(e) of FOIA (5 ILCS 140/ 3(e) (West 2016)) permits a public body to extend\nthe time to respond by 5 business days from the original due date for any of seven enumerated\n\nGeneral (June 15, 2018), at 2. \n\nLetter from Julie L. Ajster. Ajster Law Office, to Public Access Counselor, Illinois Attorney\n\nGeneral (Jane 15, 2018), at\n\n1. \n\nLetter from Julie L. Ajster. Ajster Law Office, to Public Access Counselor, Illinois Attorney\n\nreasons, and also provides that \"[ t] he person making a request and the public body may agree in\nwriting to extend the time for compliance for a period to be determined by the parties.\" \n\nWith regard to electronic copies, section 6(a) of FOIA (5 ILCS 140/ 6(a) (West\n\n2016)) provides: \n\nWhen a person requests a copy of a record maintained in an\n\nelectronic format, the public body shall furnish it in the electronic\nformat specified by the requester, if feasible. If it is not feasible to\nfurnish the public records in the specified electronic format, then\nthe public body shall furnish it in the format in which it is\nmaintained by the public body, or in paper format at the option of\nthe requester. \n\nThe Public Access Bureau \" has previously determined that section 6(a) of FOIA does not require\na public body to furnish in electronic format records maintained solely in paper format, even if\nthe public body has resources to reproduce those records in PDF.\" \nLtr. 28697, issued April 18, 2014, at 2. In addition, section 6(b) of FOIA (5 ILCS 140/ 6(b) \n\nIll. Att' y Gen. PAC Req. Rev. \n\nWest 2016)), which concerns fees for paper copies, provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\n\nand white, letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall not\nexceed 15 cents per page. If a public body provides copies in color\nor in a size other than letter or legal, the public body may not\ncharge more than its actual cost for reproducing the records. \n\nIn its response to this office, the City addressed the timeliness of its response to\n\nthe\nMs. Ajster's request by explaining that when it e- mailed Ms. Ajster on March 28, 2018, about\nsize of her request, Ms. Ajster expressed that she was fine with the City taking additional time to\nrespond. This office has reviewed a copy of the e- mail exchange between the City and Ms. \nAjster and confirmed that she granted the City extra time to respond. While the parties did not\ndiscuss or agree on a specific due date for the City's response, Ms. Ajster did not express that she\nsought any limitations to the additional\ntime for response or otherwise indicate any objections to\nan extension. Consequently, \n\n171013, ¶ 37, _ N. E. 3d _ (2018) (concluding that a requester's reply to a public body that an\nanswer by a particular date \" would be appreciated\" was sufficient to extend the time for\ncompliance to that date). Therefore, for purposes of assessing a copying fee. this office\nconcludes that the City's April 16, 2018, response was timely. \n\nDiscussing its rationale for assessing Ms. Ajster a copying fee for paper copies\n\nrather than providing her with electronic copies free of charge, the City explained: \n\nWhen a request of this size is received and it is determined\n\nthat multiple departments and/ or individuals will be providing\ndocumentation, we ask that they gather from paper files or print\nout related electronic files so that all information can be compiled\n\nin a central location. Based on this method it is difficult to\n\ndetermine which documents were copied from a paper file or\n\nprinted from an electronic source. \ncommunication with those that provided documentation that as\n\nIt is my belief based on\n\nmuch as 50% of the documents were copied from an electronic\nformat. l81\n\nThe City questioned whether Ms. Ajster should be liable for half of the fee given its estimate that\nhalf of the records did not exist in an electronic format. \n\nBecause a public body is not required to provide electronic copies of records that\n\nare maintained solely in paper format, the City was not required to convert\nrecords maintained in paper format\ninto an electronic format. As to the remaining records, \nsection 6(a) of FOIA provides, in pertinent part, that \" the public body shall furnish it in the\nelectronic format specified by the requester, if feasible.\" (Emphasis added.) As also quoted\nabove, the next sentence of section 6(a) again references \" the specified electronic format.\" \n\nthe responsive\n\nEmphasis added.) Accordingly, section 6(a) of FOIA signifies that when a request specifies that\nit\nit seeks electronic copies, the public body must provide electronic copies of records that\nmaintains in an electronic format, free of charge. Even if a requester specifies an electronic\n\nformat and the public body does not maintain the electronic records in that format, the public\nbody must either convert the electronic records to that format, if feasible, or provide the\nrequester with electronic copies of the records in the electronic format in which they are\nmaintained or paper copies at the option of the requester. Here, Ms. Ajster's request did not\n\nspecify that she sought electronic copies. Although Ms. Ajster contended that the City had\npreviously provided her with copies of records electronically, the City did not, by that course of\n\nGeneral (June 27, 2018). \n\nBLetter from Stephanie Piscia, City of Peru FOIA Officer, to Teresa Lim, Assistant Attorney\n\naction, bind itself to providing all future responsive records electronically regardless of the\nformat in which they are maintained. \n\nThe current copying fee dispute potentially could have been avoided in part if the\nCity had provided Ms. Ajster with a fee estimate prior to beginning to make copies of the records\nmaintained only in paper format. Nonetheless, although FOIA requires that a public body\nprovide fee estimates for voluminous requests, 9 it does not set forth a similar requirement for\nnon -voluminous requests. Here, the City did not assert that the request was a voluminous\nrequest and, therefore, the City was not required to provide an estimate of the fees to be charged. \nSee I11. Att' y Gen. PAC Req. Rev. Ltr. 41192, issued September 8, 2017, at 4 (concluding that a\npublic body was not required to provide an estimate of fees to be charged or provide an\nopportunity to narrow a request where the public body did not assert that the request was a\nvoluminous request). Further, although Ms. Ajster alleged that the City had claimed to the News\nTribune that FOIA responses are free, sections 6(a) and 6(b) of FOIA expressly permit a public\nIn this case, the total cost of\nbody to charge for certain costs involved in reproducing records. \n\n225. 60 reflects a charge of 15 cents per page for the 1554 pages of documents after 50 free\n\npages. Thus, the City's fee is permissible under section 6(b) of FOIA. Under these\ncircumstances, this office concludes that the copying fee the City assessed did not violate FOIA. \nStill, because it appears that Ms. Ajster would have had the right to obtain copies of\napproximately half of the records free of charge if she had specified that she sought electronic\ncopies, and because she may have reasonably believed that it was not necessary to specify that\nshe sought electronic copies in order to receive electronic copies of the records maintained\n\nelectronically in light of her previous FOIA correspondence with the City, the City's idea about\nhalving the copying fee sounds reasonable. \n\nLastly, with regard to Ms. Ajster's claim that the City required her to pick up the\npaper copies rather than mailing them to her, it appears that the City contemplated an in- person\n\n9 Section 3. 6(c) of FOIA (5 ILCS 140/ 3. 6(c) (West 2016)) provides: \n\nIf a request continues to be a voluminous request following the\nrequesters response under subsection (b) of this Section or the requester fails to\nrespond, the public body shall respond within the earlier of 5 business days after\nit receives the response from the requester or 5 business days after the final day\nfor the requester to respond to the public body's notification under this\nsubsection. The response shall: (i) provide an estimate of thefees to be\ncharged, which the public body may require the person to pay in full before\ncopying the requested documents; (ii) deny the request pursuant to one or more\n\nfor the copies. Although a public body may require receipt of the\n\nexchange of payment\nauthorized copying fee prior to providing a requester with copies of responsive records, this\noffice has previously determined that \" FOIA requires a public body to mail copies of records\nwhen the requester has provided the public body with a mailing address; the public body may not\nimpose a fee for the cost of the regular postage.\" See Ill. Att'y Gen. PAC Req. Rev. Ltr. 41192, \nissued September 8, 2017, at 4. Here, the City did not dispute Ms. Ajster's claim or otherwise\nindicate that it would mail\nthis office\nreminds the City to offer requesters the opportunity to receive paper copies by regular mail once\nthey have paid any requisite copying fees. Further, if it has not already done so, this office\nrequests that the City mail copies of the first 50 pages of responsive documents at no cost to Ms. \nAjster. \n\nthe responsive records at no additional cost. Consequently, \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53612 f 6a fee proper 6b fee proper improper mun"}
{"id":916,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-02-07","case_number":null,"request_numbers":["53659"],"title":"Glen Ellyn School District did not violate FOIA withholding correspondence under exemption 7(1)(f)","filename":"53659, issued February 7, 2019.pdf","rel_path":null,"word_count":2465,"summary":"The requester sought correspondence between school board members and district employees containing specific keywords, but the School District withheld several records citing various FOIA exemptions. The PAC determined that the District failed to demonstrate that the withheld records met the criteria for the claimed exemptions.","plain_summary":"A requester sought emails from a school district concerning classroom observations and integration. The PAC found that emails withheld under section 7(1)(f) were properly protected as predecisional, deliberative communications, but that the district did not establish that other emails concerning potential collective bargaining were exempt under section 7(1)(p). The district was asked to provide those records, subject to any permissible redactions.","holding":"The Glen Ellyn School District No. 41 did not improperly withhold the requested records under section 7(1)(f) of FOIA; the Public Access Bureau declined to address the applicability of section 7(1)(m) because those records were already exempt under section 7(1)(f).","legal_question":"Whether the School District properly applied FOIA exemptions 7(1)(f), 7(1)(m), and 7(1)(p) to withhold correspondence regarding school observations and integration.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)","7(1)(p)"],"public_body":"Glen Ellyn School District No. 41","requesting_party":"Mr. [Name redacted in source]","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(p)","subject_description":"The request involved correspondence between school board members and employees concerning classroom observations and integration.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_p/53659%2C%20issued%20February%207%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school district","email records","FOIA exemptions","collective bargaining","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 7,  2019\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr.  Brian P.  Crowley\nAttorney for Glen Ellyn School District No.  41\nFranczek Radelet P. C. \n\n300 South Wacker Drive, Suite 3400\n\nChicago,  Illinois 60606\n\nbpc@franczek. com\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 53659\n\nDear\n\nand Mr. Crowley: \n\nThis determination letter is issued pursuant to section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons that follow, the\n\nPublic Access Bureau concludes that Glen Ellyn School District No. 41 ( School District) \n\nimproperly withheld a certain set of records responsive to\n\ns May 16,  2018,  FOIA\n\nrequest. \n\nto the School District seeking\ncopies of all correspondence \" to, and from, District 41 school board members Kurt Buchholz\n\nsubmitted a FOIA request\n\nOn that date, \n\nand/ or Stephanie Clark to,  and from,  any District 41 employee * * *  and to,  and from, \nSuperintendent Paul Gordon containing any of the following words:  observe ( observation),  visit\nvisitation),  integration ( integrate)  from January 1,  2018,  until\n2018,  the School District extended the time to respond pursuant\n\nto section 3( e)  of FOIA ( 5 ILCS\n\nI On May 23, \n\ntoday' s date[.]\"\n\n140/ 3( e) ( West 2016)).  On May 31,  2018,  the School District provided\ncertain responsive records,  but withheld others pursuant to sections 7( 1)(\nof FOIA ( 5 ILCS 140/ 7( 1)(\n\nf), ( 1)( m), ( 1)( p) ( West 2017 Supp.)). \n\nwith copies of\nf), 7( 1)( m),  and 7( 1)( p) \n\nE- mail from\n\nto Nancy [ Mogk] ( May 16,  2018). \n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr. Brian P.  Crowley\nFebruary 7,  2019\nPage 2\n\nOn June 18,  2018,  this office received\n\nRequest for Review disputing\n\nthe partial denial of her request. \n\nOn June 26,  2018,  this office forwarded a copy of the Request\nSchool District and asked it to provide copies of the records that it withheld for this office' s\nconfidential review, together with a detailed explanation of the legal and factual basis for the\n\nfor Review to the\n\nasserted exemptions.  On July 11,  2018, this office received the requested materials:  On July 15, \n2018,  this office forwarded a copy of the School District' s response to\nthis office on August 17,  2018,  maintaining that the School District improperly denied her\nrequest for certain records as pre -decisional: \" The district continues to deny FOIA requests on\nthe basis that the items requested are ' pre -decisional'  but has never cited an actual decision to\nwhich the documents pertain.\" 2\n\nshe e- mailed\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health,  218 Ill.  2d 390,  41. 5 ( 2006).  A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\"  that the records are exempt\nfrom disclosure.  5 ILCS 140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be\n\nnarrowly construed.  Lieber v. Board of Trustees of Southern Illinois University.  176 Ill. 2d 401, \n407 ( 1997). \n\nSection 7( 1)( 0 of FOIA\n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\n\nSection 7( 1)(\n\nf) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nactions are formulated,  except\n\nthat a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 7( 1)( f) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\"  Harwood v.  McDonough,  344 I11.  App.  3d 242,  247 ( 1st Dist.  2003).  The exemption\nis \" intended to protect the communications process and encourage frank and open discussion\n\nf) does not exempt from disclosure purely factual material.  See Ill. Att' y Gen.  Pub. \n\namong agency employees before a final decision is made.\"  Harwood, 344 I11.  App.  3d at 248. \nSection 7( 1)(\nAcc.  Op.  No.  13- 015,  issued September 24,  2013,  at 7.  Rather, \"[ o] nly those portions of a\npredecisional document that reflect the give and take of the deliberative process may be\nwithheld.\"  Kalven v.  City of Chicago,  2014 IL App ( 1st)  121846, ¶ 24,  7 N.E. 3d 741,  748 ( 2014) \nquoting Public Citizen,  Inc. v.  Office of Management &  Budget,  598 F. 3d 865,  876 ( D. C.  Cir. \n\n2E -mail from\n\nto [ Public Access Bureau] ( August 17,  2018). \n\n\fMr. Brian P.  Crowley\nFebruary 7,  2019\nPage 3\n\n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency' s\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency' s ability to perform its functions.'\"  Chemical Weapons Working\nGroup v.  US.  E.P.A.,  185 F. R. D.  1,  3 ( D. D. C.  1999) ( quoting Dudman Communications v. \nDepartment of the Air Force,  815 F. 2d 1565,  1568 ( D.C.  Cir.  1987)). \n\nIn its response to this office,  the School District stated that it had withheld internal\n\ncommunications \" among,  in some cases,  Board members,  in one instance,  the Superintendent\nwith Board members,  and in other cases,  the School District' s attorney with Board members. i3\nThe School District\nfurther asserted,  in pertinent part: \" The records include opinions regarding\nspecific School District matters and some records include draft documents for review by the\nvarious participants in the email discussions.  The intended purpose of the various\n\ncommunications was for the District to share opinions and formulate actions regarding specific\nSchool District matters.\nAdditionally,  the School District asserted that some of those e- mails\n5\n\n4\n\nalso fall within the scope of the section 7( 1)( m)  exemption.\n\nSpecifically,  the School District\n\nasserted that those records \" were either prepared by or sent to the School District' s attorney\nwhere his client,  the School District,  is either seeking or receiving his confidential\nregarding specific School District matters.\" 6\n\nlegal advice\n\nThis office' s review of the e- mails withheld under only section 7( 1)(\n\nf) confirmed\nthat they consist of internal communications that were exchanged in the process of formulating\nactions.  The e- mails reveal the individuals involved in the exchanges sharing opinions on\nspecific School District\nalso withheld pursuant\ncommunications. \nattorney as it formulated action and sought\n\nissues and discussing certain draft documents.  The e- mails that were\nto section 7( 1)( m)  similarly reflect predecisional,  deliberative\n\nlegal advice.  Although the School District did not\n\nthe School District consulting with its\n\nIn particular,  those e- mails reflect\n\nJuly 11,  2018),  at 2. \n\nLetter from Brian P.  Crowley to Teresa Lim,  Assistant Attorney General,  Public Access Bureau, \n\n4Letter from Brian P.  Crowley to Teresa Lim, Assistant Attorney General,  Public Access Bureau, \n\nJuly 11,  2018),  at 2. \n\nSection 7( 1)( m)  of FOIA ( 5 ILCS 140/ 7( I)( m) ( West 2017 Supp.))  exempts from disclosure: \n\nCommunications between a public body and an attorney * * * \nrepresenting the public body that would not be subject to discovery in litigation, \nand materials prepared or compiled by or for a public body in anticipation of a\ncriminal,  civil or administrative proceeding upon the request of an attorney\nadvising the public body[.] \n\nJuly I\n\nI,  2018),  at2. \n\n6Letter from Brian P.  Crowley to Teresa Lim,  Assistant Attorney General,  Public Access Bureau, \n\n\fMr. Brian P.  Crowley\nFebruary 7,  2019\nPage 4\n\nclaim that an actual decision ultimately stemmed from the e- mails,  that fact does not undermine\nthe School District' s assertion that the records constitute predecisional and deliberative material\nunder section 7( 1)(\ndecisions and ideas that were explored on a preliminary basis but never adopted.  Further,  while\nthe communications contain some factual\nintertwined in the predecisional deliberations.  There is no indication that the e- mails were\n\nf), as the exemption generally protects both the thought processes behind final\n\ninformation,  that information is inextricably\n\npublicly cited or identified by the head of the School District.  Because the communications are\ndeliberative and pre -decisional\n\nin nature,  this office concludes that the School District did not\n\nimproperly withhold them pursuant to section 7( 1)( f) of FOIA. \n\nSection 7( 1)( p)  of FOIA\n\nSection 7( 1)( p)  of FOIA exempts from disclosure \"[ r] ecords relating to collective\n\nthat\n\nnegotiating matters between public bodies and their employees or representatives,  except\nany final contract or agreement shall be subject to inspection and copying.\"  Because FOIA\nexemptions must be construed narrowly ( Lieber,  176 I11.  2d at 407),  the term \" relating to\"  in a\nFOIA exemption does not signify an expansive scope.  See Kalven v.  City of Chicago,  2014 IL\nApp ( 1st)  121846, ¶ 19,  7 N. E. 3d 741,  746- 47 ( 2014) ( rejecting the contention that the section\n7( 1)( n)  exemption ( 5 ILCS 140/ 7( 1)( n) ( West 2010))  for records \" relating to a public body' s\nadjudication of employee grievances or disciplinary cases\"  encompasses investigatory records\nthat precede disciplinary adjudications because such an \" expansive interpretation\"  would \" render\na broad category of public documents immune [ citation]  to public scrutiny.  That is contrary to\nthe intent of FOIA.\");  see also Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  32159,  issued April 20,  2015, \nat 3 ( concluding that because almost every record in possession of the Illinois Department of\nCorrections arguably relates to security in some manner,  section 7( 1)( e)  of FOIA, 8 which\nconcerns \"[ r]ecords that relate to or affect the security of correctional\nfacilities[,]\" \" applies to records that could jeopardize the security of a correctional\ndisclosed,  rather than any records merely pertaining to security in any manner whatsoever.\"). \n\ninstitutions and detention\ninstitution if\n\nThe Attorney General has issued a binding opinion addressing the applicability of\n\nsection 7( 1)( p)  to invoices for legal services containing information related to collective\nbargaining matters. \nbinding opinion,  the Attorney General examined the exception for collective negotiating matters\nin the Open Meetings Act ( 5 ILCS 120/ 2( c)( 2) ( West 2012))  and noted: \" Section 7( 1)( p)  of\nFOIA serves the corollary purpose of exempting from disclosure records pertaining to such\n\nIll.  Att' y Gen.  Pub.  Acc.  Op.  No.  14- 002,  issued April 15,  2014. \n\nIn that\n\nBecause this determination concludes that the records that were withheld pursuant\n\nto section\n\n7( I)( m)  of FOIA are exempt\n1)( m). \nsection 7(\n\nfrom disclosure pursuant\n\nto section 7(\n\n1)(\n\nf), we decline to address the applicability of\n\n85 ILCS 140/ 7( I)( e) ( West 2013 Supp.),  as amended by Public Act 98- 695,  effective July 3,  2014. \n\n\fMr. Brian P.  Crowley\nFebruary 7,  2019\nPage 5\n\naspects of the collective bargaining process as the negotiating of wages and salaries,  terms and\nconditions of employment,  working conditions,  and similar matters which are subject to\ncollective bargaining.\"  III. Atey Gen. Pub.  Acc. Op. No.  14- 002,  at 6.  The Attorney General\nconcluded that only the portions of the invoices that contained specific information pertaining to\nthe collective bargaining process could be redacted pursuant to section 7( 1)( p). \nPub.  Acc.  Op.  No.  14- 002,  at 9.  Thus,  records must reveal aspects of a collective bargaining\nprocess to fall within the scope of the exemption. \n\n111.  Att'y Gen. \n\nIn its response to this office,  the School District contended that certain responsive\n\nrecords pertained to collective negotiating matters.  The School District asserted: \n\nThe discussions contained in the emails concern working\nconditions and are between a representative of the employer ( the\n\nBoard President)  and a representative of the Glen Ellyn Education\nAssociation ( the exclusive bargaining unit for the School District's\nteachers).  Specifically,  the discussions regard observations of\nteacher classrooms,  which is contemplated in the School District' s\ncollective bargaining agreement with the teachers.  The issues\nidentified in the emails,  if not resolved,  may result in a demand to\nbargain,  a grievance under the collective bargaining agreement,  or\nthe filing of an unfair labor practice under the Illinois Educational\nLabor Relations Act. ( Emphasis added.) t91\n\nThis office has reviewed the communications at issue and the determined that\nthey do not reflect involvement in an active collective bargaining process between the School\nDistrict and Glen Ellyn Education Association,  Illinois Education Association -NEA\nAssociation).  Although the records reveal discussions between the School District and\n\nin a demand to bargain,  a grievance under the\n\nAssociation related to working conditions,  the School District' s response appears to acknowledge\nthat no formal negotiation process had actually begun.  Instead,  the School District stated that the\nissues discussed in the records may result\ncollective bargaining agreement,  or the filing of an unfair labor practice claim. \nIn the absence of\nan active collective bargaining process or a demand for collective bargaining that indicates such\na process is imminent,  the narrowly construed section 7( 1)( p)  exemption does not encompass\nrecords related to working conditions simply because they could lead to collective bargaining if\nunresolved. \nnegotiations do not yet relate to actual \" collective negotiating matters between public bodies and\ntheir employees or representatives[.\n\nIn other words,  records that merely reflect the possibility of future collective\n\nj\"  Because the records do not concern matters discussed as\n\n9Letter from Brian P.  Crowley to Teresa Lim,  Assistant Attorney General,  Public Access Bureau, \n\nJuly 1 I,  2018),  at 3. \n\n\fMr. Brian P.  Crowley\nFebruary 7,  2019\nPage 6\n\npart of a collective bargaining process,  this office concludes that the School District has not\ndemonstrated by clear and convincing evidence that the records are exempt from disclosure\npursuant to section 7( 1)( p)  of FOIA.  This office requests that the School District provide copies\nof all the records contained in \" Exhibit C' of the School District' s response to\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  if you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53659 f 71f proper 71p improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Correspondence about classroom observations and integration","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"violation_found","plain_summary_pre_audit_fix":"A citizen requested emails from a school district containing specific terms related to classroom observations and integration. The school district withheld some emails, citing exemptions for predecisional deliberations and attorney-client communications. The Illinois Attorney General's Public Access Bureau reviewed the request and concluded that the district properly withheld the records under the predecisional deliberative process exemption, and did not address the other claimed exemptions.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53659/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 7, 2019\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Brian P. Crowley\nAttorney for Glen Ellyn School District No. 41\nFranczek Radelet P. C. \n\n300 South Wacker Drive, Suite 3400\n\nChicago, Illinois 60606\n\nbpc@franczek. com\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 53659\n\nDear\n\nand Mr. Crowley: \n\nThis determination letter is issued pursuant to section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that Glen Ellyn School District No. 41 (School District) \n\nimproperly withheld a certain set of records responsive to\n\ns May 16, 2018, FOIA\n\nrequest. \n\nto the School District seeking\ncopies of all correspondence \" to, and from, District 41 school board members Kurt Buchholz\n\nsubmitted a FOIA request\n\nOn that date, \n\nand/ or Stephanie Clark to, and from, any District 41 employee * * * and to, and from, \nSuperintendent Paul Gordon containing any of the following words: observe (observation), visit\nvisitation), integration (integrate) from January 1, 2018, until\n2018, the School District extended the time to respond pursuant\n\nto section 3(e) of FOIA (5 ILCS\n\nI On May 23, \n\ntoday's date[.]\"\n\n140/ 3(e) (West 2016)). On May 31, 2018, the School District provided\ncertain responsive records, but withheld others pursuant to sections 7(1)(of FOIA (5 ILCS 140/ 7(1)(f), (1)(m), (1)(p) (West 2017 Supp.)). \n\nwith copies of\nf), 7(1)(m), and 7(1)(p) \n\nE- mail from\n\nto Nancy [ Mogk] (May 16, 2018). \n\nOn June 18, 2018, this office received\n\nRequest for Review disputing\n\nthe partial denial of her request. \n\nOn June 26, 2018, this office forwarded a copy of the Request\nSchool District and asked it to provide copies of the records that it withheld for this office's\nconfidential review, together with a detailed explanation of the legal and factual basis for the\n\nfor Review to the\n\nasserted exemptions. On July 11, 2018, this office received the requested materials: On July 15, \n2018, this office forwarded a copy of the School District's response to\nthis office on August 17, 2018, maintaining that the School District improperly denied her\nrequest for certain records as pre -decisional: \" The district continues to deny FOIA requests on\nthe basis that the items requested are ' pre -decisional' but has never cited an actual decision to\nwhich the documents pertain.\" 2\n\nshe e- mailed\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 41. 5 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 (West 2016). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University. 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(0 of FOIA\n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \" inter- and intra -agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 (1st Dist. 2003). The exemption\nis \" intended to protect the communications process and encourage frank and open discussion\n\nf) does not exempt from disclosure purely factual material. See Ill. Att' y Gen. Pub. \n\namong agency employees before a final decision is made.\" Harwood, 344 I11. App. 3d at 248. \nSection 7(1)(Acc. Op. No. 13- 015, issued September 24, 2013, at 7. Rather, \"[ o] nly those portions of a\npredecisional document that reflect the give and take of the deliberative process may be\nwithheld.\" Kalven v. City of Chicago, 2014 IL App (1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 (2014) \nquoting Public Citizen, Inc. v. Office of Management & Budget, 598 F. 3d 865, 876 (D. C. Cir. \n\n2010)). \"[ T] he critical question is whether ' disclosure of the materials would expose an agency's\ndecision- making process in such a way as to discourage candid discussion within the agency and\nthereby undermine the agency's ability to perform its functions.'\" Chemical Weapons Working\nGroup v. US. E.P.A., 185 F. R. D. 1, 3 (D. D. C. 1999) (quoting Dudman Communications v. \nDepartment of the Air Force, 815 F. 2d 1565, 1568 (D.C. Cir. 1987)). \n\nIn its response to this office, the School District stated that it had withheld internal\n\ncommunications \" among, in some cases, Board members, in one instance, the Superintendent\nwith Board members, and in other cases, the School District's attorney with Board members. i3\nThe School District\nfurther asserted, in pertinent part: \" The records include opinions regarding\nspecific School District matters and some records include draft documents for review by the\nvarious participants in the email discussions. The intended purpose of the various\n\ncommunications was for the District to share opinions and formulate actions regarding specific\nSchool District matters.\nAdditionally, the School District asserted that some of those e- mails\n5\n\n4\n\nalso fall within the scope of the section 7(1)(m) exemption.\n\nSpecifically, the School District\n\nasserted that those records \" were either prepared by or sent to the School District's attorney\nwhere his client, the School District, is either seeking or receiving his confidential\nregarding specific School District matters.\" 6\n\nlegal advice\n\nThis office's review of the e- mails withheld under only section 7(1)(f) confirmed\nthat they consist of internal communications that were exchanged in the process of formulating\nactions. The e- mails reveal the individuals involved in the exchanges sharing opinions on\nspecific School District\nalso withheld pursuant\ncommunications. \nattorney as it formulated action and sought\n\nissues and discussing certain draft documents. The e- mails that were\nto section 7(1)(m) similarly reflect predecisional, deliberative\n\nlegal advice. Although the School District did not\n\nthe School District consulting with its\n\nIn particular, those e- mails reflect\n\nJuly 11, 2018), at 2. \n\nLetter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\n4 Letter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\nJuly 11, 2018), at 2. \n\nSection 7(1)(m) of FOIA (5 ILCS 140/ 7(I)(m) (West 2017 Supp.)) exempts from disclosure: \n\nCommunications between a public body and an attorney * * * \nrepresenting the public body that would not be subject to discovery in litigation, \nand materials prepared or compiled by or for a public body in anticipation of a\ncriminal, civil or administrative proceeding upon the request of an attorney\nadvising the public body[.] \n\nJuly I\n\nI, 2018), at2. \n\n6 Letter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\nclaim that an actual decision ultimately stemmed from the e- mails, that fact does not undermine\nthe School District's assertion that the records constitute predecisional and deliberative material\nunder section 7(1)(decisions and ideas that were explored on a preliminary basis but never adopted. Further, while\nthe communications contain some factual\nintertwined in the predecisional deliberations. There is no indication that the e- mails were\n\nf), as the exemption generally protects both the thought processes behind final\n\ninformation, that information is inextricably\n\npublicly cited or identified by the head of the School District. Because the communications are\ndeliberative and pre -decisional\n\nin nature, this office concludes that the School District did not\n\nimproperly withhold them pursuant to section 7(1)(f) of FOIA. \n\nSection 7(1)(p) of FOIA\n\nSection 7(1)(p) of FOIA exempts from disclosure \"[ r] ecords relating to collective\n\nthat\n\nnegotiating matters between public bodies and their employees or representatives, except\nany final contract or agreement shall be subject to inspection and copying.\" Because FOIA\nexemptions must be construed narrowly (Lieber, 176 I11. 2d at 407), the term \" relating to\" in a\nFOIA exemption does not signify an expansive scope. See Kalven v. City of Chicago, 2014 IL\nApp (1st) 121846, ¶ 19, 7 N. E. 3d 741, 746- 47 (2014) (rejecting the contention that the section\n7(1)(n) exemption (5 ILCS 140/ 7(1)(n) (West 2010)) for records \" relating to a public body's\nadjudication of employee grievances or disciplinary cases\" encompasses investigatory records\nthat precede disciplinary adjudications because such an \" expansive interpretation\" would \" render\na broad category of public documents immune [ citation] to public scrutiny. That is contrary to\nthe intent of FOIA.\"); see also Ill. Att' y Gen. PAC Req. Rev. Ltr. 32159, issued April 20, 2015, \nat 3 (concluding that because almost every record in possession of the Illinois Department of\nCorrections arguably relates to security in some manner, section 7(1)(e) of FOIA, 8 which\nconcerns \"[ r]ecords that relate to or affect the security of correctional\nfacilities[,]\" \" applies to records that could jeopardize the security of a correctional\ndisclosed, rather than any records merely pertaining to security in any manner whatsoever.\"). \n\ninstitutions and detention\ninstitution if\n\nThe Attorney General has issued a binding opinion addressing the applicability of\n\nsection 7(1)(p) to invoices for legal services containing information related to collective\nbargaining matters. \nbinding opinion, the Attorney General examined the exception for collective negotiating matters\nin the Open Meetings Act (5 ILCS 120/ 2(c)(2) (West 2012)) and noted: \" Section 7(1)(p) of\nFOIA serves the corollary purpose of exempting from disclosure records pertaining to such\n\nIll. Att' y Gen. Pub. Acc. Op. No. 14- 002, issued April 15, 2014. \n\nIn that\n\nBecause this determination concludes that the records that were withheld pursuant\n\nto section\n\n7(I)(m) of FOIA are exempt\n1)(m). \nsection 7(from disclosure pursuant\n\nto section 7(1)(f), we decline to address the applicability of\n\n85 ILCS 140/ 7(I)(e) (West 2013 Supp.), as amended by Public Act 98- 695, effective July 3, 2014. \n\naspects of the collective bargaining process as the negotiating of wages and salaries, terms and\nconditions of employment, working conditions, and similar matters which are subject to\ncollective bargaining.\" III. Atey Gen. Pub. Acc. Op. No. 14- 002, at 6. The Attorney General\nconcluded that only the portions of the invoices that contained specific information pertaining to\nthe collective bargaining process could be redacted pursuant to section 7(1)(p). \nPub. Acc. Op. No. 14- 002, at 9. Thus, records must reveal aspects of a collective bargaining\nprocess to fall within the scope of the exemption. \n\n111. Att'y Gen. \n\nIn its response to this office, the School District contended that certain responsive\n\nrecords pertained to collective negotiating matters. The School District asserted: \n\nThe discussions contained in the emails concern working\nconditions and are between a representative of the employer (the\n\nBoard President) and a representative of the Glen Ellyn Education\nAssociation (the exclusive bargaining unit for the School District's\nteachers). Specifically, the discussions regard observations of\nteacher classrooms, which is contemplated in the School District's\ncollective bargaining agreement with the teachers. The issues\nidentified in the emails, if not resolved, may result in a demand to\nbargain, a grievance under the collective bargaining agreement, or\nthe filing of an unfair labor practice under the Illinois Educational\nLabor Relations Act. (Emphasis added.) t91\n\nThis office has reviewed the communications at issue and the determined that\nthey do not reflect involvement in an active collective bargaining process between the School\nDistrict and Glen Ellyn Education Association, Illinois Education Association -NEA\nAssociation). Although the records reveal discussions between the School District and\n\nin a demand to bargain, a grievance under the\n\nAssociation related to working conditions, the School District's response appears to acknowledge\nthat no formal negotiation process had actually begun. Instead, the School District stated that the\nissues discussed in the records may result\ncollective bargaining agreement, or the filing of an unfair labor practice claim. \nIn the absence of\nan active collective bargaining process or a demand for collective bargaining that indicates such\na process is imminent, the narrowly construed section 7(1)(p) exemption does not encompass\nrecords related to working conditions simply because they could lead to collective bargaining if\nunresolved. \nnegotiations do not yet relate to actual \" collective negotiating matters between public bodies and\ntheir employees or representatives[.\n\nIn other words, records that merely reflect the possibility of future collective\n\nj\" Because the records do not concern matters discussed as\n\n9 Letter from Brian P. Crowley to Teresa Lim, Assistant Attorney General, Public Access Bureau, \n\npart of a collective bargaining process, this office concludes that the School District has not\ndemonstrated by clear and convincing evidence that the records are exempt from disclosure\npursuant to section 7(1)(p) of FOIA. This office requests that the School District provide copies\nof all the records contained in \" Exhibit C' of the School District's response to\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. if you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53659 f 71f proper 71p improper sd"}
{"id":917,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-07-03","case_number":null,"request_numbers":["53735"],"title":"Peoria County Coroner's Office properly charged statutory fees for autopsy and toxicology reports","filename":"53735, issued July 3, 2018.pdf","rel_path":null,"word_count":626,"summary":"The requester challenged the fees charged by the Peoria County Coroner's Office for autopsy and toxicology reports, arguing they violated FOIA fee limitations. The PAC determined that because the fees are specifically fixed by the Counties Code, they supersede FOIA's general fee provisions.","plain_summary":"A reporter requested autopsy and toxicology reports and was charged specific fees by the Coroner's Office. She argued these fees were too high under FOIA rules. The Attorney General's office explained that because a separate state law specifically sets the prices for these coroner reports, those prices apply instead of the general FOIA fee limits.","holding":"The Peoria County Coroner's Office properly charged fees for autopsy and toxicology reports as those fees are fixed by statute under the Counties Code.","legal_question":"Whether the fee limitations in FOIA (5 ILCS 140/6) apply to records for which fees are specifically fixed by the Counties Code (55 ILCS 5/4-7001).","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Peoria County Coroner's Office","requesting_party":"Ms. Clare Howard","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought copies of autopsy and toxicology reports and disputed the associated costs charged by the Coroner's Office.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/Fee-fixed-by-statute/53735%2C%20issued%20July%203%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","coroner report","autopsy report","statutory fees"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 3,  2018\n\nVia electronic mail\n\nMs.  Clare Howard\n\nCommunity Word\n400 North East Jefferson Avenue, # 400\n\n[street address redacted for site publication -- see original PDF]\nRE:  FOIA Request\n\nfor Review — 2018 PAC 53735\n\nDear Ms.  Howard: \n\nThis determination letter is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons set forth below,  the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn June 21,  2018,  you submitted a FOIA request\n\nto the Peoria County Coroner' s\nOffice ( Coroner' s Office),  seeking a copy of the coroner's report for a deceased individual.  On\nJune 22,  2018,  the Coroner's Office responded that it would furnish responsive records upon\n\nreceipt of the following applicable fees: $ 50. 00 for the autopsy report, $ 25. 00 for the toxicology\nreport, and $ 1. 00 for certification of the documents.  In your Request for Review, you contend\n\nthat these fees are not proper under FOIA: \n\nSection6( b)  of FOIA (5 ILCS 140/ 6( 6) ( West 2016))  provides,  in pertinent part: \n\nExcept when afee is otherwise fixed by statute,  each\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use,  by any person,  of the equipment of the public body to copy\nrecords.  No fees shall be charged for the first 50 pages of black and\nwhite,  letter or legal sized copies requested by a requester.  The fee\nfor black and white,  letter or legal sized copies shall not exceed 15\n\ncents per page. * * * \n\nThe cost for certifying a record shall not\n\nexceed $ 1. ( Emphasis added.) \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 • \n\nFax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fs. Clare Howard\n\nJuly 3,  2018\nPage 2\n\nThe plain language of section 6( b)  of FOIA permits a public body,  such as the\n\nCoroner's Office,  to charge fees fixed by a statute other than FOIA.  Section 4- 7001 of the\nCounties Code ( 55 ILCS 5/ 4- 7001 ( West 2016))  provides,  in pertinent part: \" Coroner' s fees.  The\nfees of the coroner' s office shall be as follows: * * *  2.  For a copy of an autopsy report ( if not\nincluded in transcript): $ 50. 00. * * * \n\n4.  For a copy of a toxicology report: $ 25. 00.\" \n\nBecause the specific fees for autopsy reports and toxicology reports are fixed by\nsection 4- 7001 of the Counties Code,  those fees rather than the fee provisions of FOIA apply to\nthe records.  Further,  if you desire certified copies of the records,  the Coroner's Office may\ncharge you $ 1. 00 for certification pursuant\ndetermined that no further action is warranted in this matter. \n\nto section 6( b)  of FOIA.  Accordingly,  this office has\n\nThis filed is closed.  If you have any questions,  please contact me at 312- 814- \n\n5201 or at the Chicago address listed on the bottom of the first page of this letter. \n\nVery\n\nly yours, \n\nDIE STEI\n\nI BERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n53735 f no fi war co\n\ncc: \n\nVia electronic mail\n\nMr.  Jamie Harwood,  Coroner\n\nPeoria County Coroner' s Office\n506 East Seneca Place\n\nPeoria,  Illinois 61603\n\njharwood@peoriacounty. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Autopsy and toxicology report fees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53735/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nJuly 3, 2018\n\nVia electronic mail\n\nMs. Clare Howard\n\nCommunity Word\n400 North East Jefferson Avenue, # 400\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request\n\nfor Review — 2018 PAC 53735\n\nDear Ms. Howard: \n\nThis determination letter is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn June 21, 2018, you submitted a FOIA request\n\nto the Peoria County Coroner's\nOffice (Coroner's Office), seeking a copy of the coroner's report for a deceased individual. On\nJune 22, 2018, the Coroner's Office responded that it would furnish responsive records upon\n\nreceipt of the following applicable fees: $ 50. 00 for the autopsy report, $ 25. 00 for the toxicology\nreport, and $ 1. 00 for certification of the documents. In your Request for Review, you contend\n\nthat these fees are not proper under FOIA: \n\nSection6(b) of FOIA (5 ILCS 140/ 6(6) (West 2016)) provides, in pertinent part: \n\nExcept when afee is otherwise fixed by statute, each\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. * * * \n\nThe cost for certifying a record shall not\n\nexceed $ 1. (Emphasis added.) \n\nThe plain language of section 6(b) of FOIA permits a public body, such as the\n\nCoroner's Office, to charge fees fixed by a statute other than FOIA. Section 4- 7001 of the\nCounties Code (55 ILCS 5/ 4- 7001 (West 2016)) provides, in pertinent part: \" Coroner's fees. The\nfees of the coroner's office shall be as follows: * * * 2. For a copy of an autopsy report (if not\nincluded in transcript): $ 50. 00. * * * \n\n4. For a copy of a toxicology report: $ 25. 00.\" \n\nBecause the specific fees for autopsy reports and toxicology reports are fixed by\nsection 4- 7001 of the Counties Code, those fees rather than the fee provisions of FOIA apply to\nthe records. Further, if you desire certified copies of the records, the Coroner's Office may\ncharge you $ 1. 00 for certification pursuant\ndetermined that no further action is warranted in this matter. \n\nto section 6(b) of FOIA. Accordingly, this office has\n\nThis filed is closed. If you have any questions, please contact me at 312- 814- \n\n5201 or at the Chicago address listed on the bottom of the first page of this letter. \n\nVery\n\nly yours, \n\nDIE STEI\n\nI BERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n53735 f no fi war co\n\ncc: \n\nVia electronic mail\n\nMr. Jamie Harwood, Coroner\n\nPeoria County Coroner's Office\n506 East Seneca Place\n\nPeoria, Illinois 61603\n\njharwood@peoriacounty. org"}
{"id":918,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-09-13","case_number":null,"request_numbers":["53887"],"title":"City of Quincy Police Department improperly withheld use of force reports","filename":"53887, issued September 13, 2018.pdf","rel_path":null,"word_count":4044,"summary":"The requester sought 2017 police use of force reports, which the City of Quincy withheld in their entirety; the PAC determined the City failed to meet its burden of proof for a blanket exemption and ordered the release of the records with limited redactions.","plain_summary":"A reporter requested use of force reports from the Quincy Police Department, which initially provided a summary and then denied the full request citing privacy exemptions. The Attorney General's office determined that the Department improperly withheld the reports, except for certain discrete information. The Department may redact home addresses and signatures as private information under FOIA, and may also redact identifying details of non-arrested subjects to avoid an unwarranted invasion of privacy, but names in general are not exempt and must be disclosed.","holding":"The City of Quincy Police Department improperly withheld the requested use of force reports, with the exception of certain discrete information that may be redacted.","legal_question":"Whether the City of Quincy Police Department properly withheld all 2017 use of force reports under FOIA exemption 7(1)(v) and other privacy-related exemptions.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)","7(1)(v)"],"public_body":"City of Quincy Police Department","requesting_party":"Mr. Matthew Hopf (The Herald-Whig)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned all use of force reports completed by police officers during the 2017 calendar year.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Compelling-public-interest-in-disclosure/53887%2C%20issued%20September%2013%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","use of force","FOIA request","redaction"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 13,  2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr.  Matthew Hopf\n\nStaff Writer\n\nThe Herald - Whig\n130 South Fifth Street\n\nP. O.  Box 909\n\n[street address redacted for site publication -- see original PDF]\nmhopf@whig. com\n\nVia electronic mail\n\nMs.  Michele Flaiz\n\nFOIA Officer\n\nCity of Quincy\n730 Maine Street\n\nQuincy,  Illinois 62301\nfoia@quincyil. gov\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 53887\n\nDear Mr. Hopf and Ms.  Flaiz: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2016)).  For the reasons that follow,  the\n\nPublic Access Bureau concludes that City of Quincy ( City) Police Department ( Department) \nimproperly withheld use of force reports,  with the exception of certain discrete information,  in\nresponse to Mr. Matthew Hopfs FOIA request. \n\nOn June 4,  2018,  Mr. Hopf, of The Herald -Whig,  submitted a FOIA request to the\n\nDepartment seeking copies of \"all use of force reports completed by Quincy Police officers in\n2017.\" I On June 6,  2018, the Department provided him with a copy of Deputy Chief Doug\nVandermaiden' s \" 2017 Annual Review of 'Level of Resistance'  Reports\"; \n\nthe Department did not\n\nPolice Department ( June 4,  2018). \n\nLetter from Matthew T.  Hopf, Staff Writer, Quincy Herald -Whig, to Susan Vahlkamp, Quincy\n\n500 South Second Street,  Springfield,  Illinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale,  Illinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fMr.  Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember\n\n13,  2018\n\nPage 2\n\nstate that it had withheld any responsive records.  On June 12,  2018,  Mr. Hopf replied by e- mail, \nstating \"[ t]his helps,  but it doesn't really give us details about the incidents involved and when\nthey took place.  If we could get the actual reports,  that would be beneficial.\"  2 On June 14,  2018, \nthe Department responded by denying the original request in its entirety pursuant to sections\ns),  and 7( 1)( v)  of FOIA ( 5 ILCS 140/ 7( 1)( b), ( 1)( c), \n7( 1)( b),  7( 1)( c),  7( 1)( d)( v),  7( 1)(\n1)( v) ( West 2017 Supp.)).  On July 5,  2018,  this office received Mr. \nf), (1)(\n\n1)( d)( v), ( 1)(\n\nf), 7( 1)(\n\ns), (\n\nHopfs Request for Review contesting the Department' s denial.  Specifically,  he argued that the\nprivacy exemptions do not apply because the individuals involved are public employees,  and that\nthe section 7( 1)(\nthat private information such as Social Security numbers can be redacted. \n\nf) exemption does not apply because the records are factual;  he acknowledged\n\nto the Department and asked it to provide unredacted copies of the responsive records for our\n\nOn July 12,  2018,  this office forwarded a copy of Mr.  Hopfs Request\n\nfor Review\n\nconfidential review, together with a detailed explanation of the legal and factual bases for the\nasserted exemptions.3 On July 24, 2018,  this office received those materials from counsel for the\nDepartment, who noted that the type of requested record is called a \" Levels of Resistance\n\nReport\"  by the Department,  but that it would refer to the type of record as a \" Use of Force\nreport\"  for the purposes of its response.  The Department maintained that it responded properly\nto the request.  On July 25,  2018,  this office forwarded a copy of the Department' s response to\nMr. Hopf; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"  5 ILCS\n140/ 1. 2 ( West 2016). \n\nSection 7( 1)( b)  of FOIA\n\nSection 7( 1)( b)  of FOIA exempts from disclosure \"[ p] rivate information, unless\nlaw or a court order.\" \n\ndisclosure is required by another provision of this Act,  a State or federal\nSection 2( c- 5)  of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2016))  defines \" private information\"  as: \n\n2E -mail from Matt Hopf, Reporter,  Herald -Whig, to Susan Vahlkamp ( June 12,  2018). \n\n3This office inadvertently did not include section 7( I)( v)  of FOIA in its July 12.  2018,  letter to the\nDepartment.  Nevertheless,  the Department did provide an analysis of that exemption in its response to this office. \n\n\fMr.  Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 3\n\nU] nique identifiers,  including a person' s social security number, \ndriver' s license number,  employee identification number,  biometric\n\nidentifiers,  personal\n\nfinancial\n\ninformation,  passwords or other\n\naccess codes,  medical\n\nrecords,  home or personal\n\ntelephone\n\nnumbers,  and personal email addresses.  Private information also\n\nincludes home address and personal\n\nlicense plates,  except as\n\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nIn its response to this office, the Department stated that the use of force reports\n\ncontain various private information, not of the police officers, as Mr. Hopis [ letter]  cites,  but of\n\nthe subject that is part of each report. i4 The Department argued that,  at a minimum, \" any\npersonal identifying information,  such as the name,  date of birth and other information in the\nshould be redacted,  if production of the reports is ordered. i5\nreport deemed to be private * * * \n\nConspicuously absent\n\nfrom the above definition of \"private information\" \n\nis any\n\nreference to a person' s name.  Although names are unquestionably \" personal information\"  in the\nsense that they are specific to particular persons ( see Lieber v.  Board of Trustees ofSouthern\nIllinois University,  176 Ill.  2d 401,  411 ( 1997)),  they are neither confidential nor unique. \nInstead,  names are \" basic identification,\"  and as the Supreme Court concluded in Lieber, \n\nw] here the legislature intended to exempt a person' s identity from disclosure,  it [ has done]  so\n\nexplicitly.\"  Lieber,  176 I11.  2d at 412.  Therefore,  by excluding names from the definition of\nprivate information,\"  the General Assembly clearly did not intend for names to be exempt from\ndisclosure under section 7( 1)( b)  of FOIA\n\nAlthough names as well as dates of birth are not within the scope of section\n\n7( 1)( b),  as they are not \" unique identifiers,\"  the Department may properly redact information that\nmeets the plain language of the definition of \"private information\"  in FOIA.  Based on this\n\noffice's confidential review of the use of force reports,  the primary information that meets this\ndefinition is home addresses and signatures. \n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 3. \n\nLetter from David.  G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP,  to Marie\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 3- 4. \n\n5Letter from David. G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP, to Marie\n\n\fMr. Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember\n\n13,  2018\n\nPage 4\n\nSection 7( 1)( c)  of FOIA\n\nSection 7( 1)( c)  of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy,  unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"  Section 7( 1)( c)  defines \" unwarranted invasion of personal privacy\" \n\nas: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\n\nright to privacy outweighs any legitimate public interest\nobtaining the information.  The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nin\n\nconsidered an invasion of personal privacy. \n\nA public body' s assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by- case basis.  Chicago Journeymen\nPlumbers'  Local Union 130 v. Department of Public Health,  327 I11.  App. 3d 192,  196 ( 1st Dist. \n2001).  The phrase \" clearly unwarranted invasion of personal privacy\"  evinces a strict standard to\nclaim the exemption,  and the burden is on the public body having charge of the record to prove\nthat standard has been met.  Schessler v.  Department of Conservation,  256 Ill. App. 3d 198,  202\n4th Dist.  1994).  Illinois courts consider the following factors in determining whether disclosure\nof information would constitute an unwarranted\n\ninvasion of personal privacy: \"( 1) \n\nthe plaintiffs\n\ninterest in disclosure, (2)  the public interest in disclosure, ( 3)  the degree of invasion of personal\n\nprivacy,  and ( 4)  the availability of alternative means of obtaining the requested information.\" \nNational Ass' n of Criminal Defense Lawyers v.  Chicago Police Department,  399 Ill.  App.  3d 1, \n13 ( 1st Dist. 2010). \n\nIn its response to this office, the Department argued: \n\nT] here is specificity and detail about the nature of the use of force\nthat could be an unwarranted invasion of privacy of the subject of\nthe report.  Given that these Use of Force reports are strictly\ninternal, are not used in the criminal investigation or prosecution, \n\nor,  in any way,  shared with third parties,  there is no compelling or\nlegitimate reason to violate the privacy of the subjects in these\nreports. 161\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 3. \n\nLetter from David. G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP, to Marie\n\n\fMr.  Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 5\n\nThus,  the Department claimed that \" the balance weighs in favor of not producing the underlying\nUse of Force reports,  where the summary of reports has already been produced.\"' \n\nUnder the first and second factors of the balancing test, Mr. Hopfs interest in\nin information regarding the\n\ndisclosure as a reporter is aligned with the strong public interest\nmanner in which law enforcement officials perform their public duties,  particularly with respect\nto the use of force.  See, for example,  Wiggins v.  Burge,  173 F. R.D.  226,  229 ( N. D.  111.  1997) \n\nordering disclosure of documents pertaining to allegations of police torture in part because\np] erformance of public duties and investigations of their performance is a matter of great\n\npublic importance.\"). \n\nRegarding the third factor,  the degree of invasion of personal privacy,  some of the\n\ninformation that would constitute a clearly\n\nuse of force reports contain certain highly personal\nunwarranted invasion of the subjects'  personal privacy if their identifying information were to be\ndisclosed.  Further, information identifying a suspect or subject of a use of force report who was\nnot arrested or charged is highly personal.  Citizens for Responsibility and Ethics in Washington\nv.  United States Dep' t ofJustice,  846 F.  Supp.  2d 63,  71 ( D. D. C.  2012) ( quoting American Civil\nLiberties Union v.  United States Dep' t of Justice,  655 F. 3d 1,  7 ( D. C.  Cir.  2011)) ( the right to\nprivacy \"' is strongest where the individuals in question ' have been investigated but never publicly\ncharged.\" 8 However, redaction of the names of the subjects ( other than the arrestees), 9 and any\nother discrete identifying details,  would significantly diminish the degree of invasion of personal\nprivacy that would result from disclosure. \n\nFinally, there do not appear to be any other means of obtaining the requested use\n\nof force reports short of a lawsuit.  Although the Department argued that the summary of the\nreports disclosed to Mr.  Hopf serves the purpose of providing insight\ninto the Department' s use\nof force,  the summary does not provide the same detailed information as the reports themselves. \n\n7Letter from David. G.  Penn,  Schmiedeskamp.  Robertson,  Neu &  Mitchell,  LLP,  to Marie\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 3. \n\nBSee also 111.  Att' y Gen.  Pub.  Acc.  Op.  No.  16- 009,  issued November 7,  2016,  at 16 ( disclosure of\n\ninformation identifying suspect of a crime who had not been arrested or charged would constitute an unwarranted\ninvasion of personal privacy). \n\n9The Attorney General has issued a binding opinion concluding that \" arrestees are considered\nessentially public personages'  with a ' limited'  and ' qualified'  right to privacy, ' and the basic facts which identify\nthem and describe generally the investigations and their arrests become matters of legitimate public interest'  that are\nsubject to disclosure.\"  111.  Att'y Gen.  Pub.  Acc.  Op.  No.  12- 006,  issued March 16,  2012,  at 7 ( citing Tennessean\nNewspaper, \n\nInc.  v.  Levi,  403 F.  Supp.  1318,  1321 ( D. C.  Tenn.  1975)). \n\n\fMr.  Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 6\n\nAccordingly,  this office concludes that the public interest weighs in favor of\n\ndisclosure of the reports,  subject to the redaction of the names of the members of the public who\n\nwere not arrested and other discrete details that would identify them, together with dates of\nbirth. 10\n\nSection 7( 1)(\n\nt)  of FOIA\n\ndrafts,  notes,  recommendations,  memoranda and other records in which opinions are expressed, \n\nSection 7( 1)(\n\nf) of FOIA exempts from inspection and copying \"[ pireliminary\n\nor policies or actions are formulated, except that a specific record or relevant portion of a record\n\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" \n\nThe section 7( 1)(\n\nf) exemption applies to \" inter-  and intra -agency predecisional\n\nand deliberative material.\"  Harwood v.  McDonough,  344 I11.  App.  3d 242,  247 ( 1st Dist.  2003). \nIt is \" intended to protect the communications process and encourage frank and open discussion\n\namong agency employees before a final decision is made.\"  Harwood,  344 III.  App.  3d at 248; \nsee also Kalven v City of Chicago,  2014 IL App ( 1st)  121846, ¶ 24,  7 N.E. 3d 741,  748 ( 2014) \n\nOnly those portions of a predecisional document\n\nthat reflect the give and take of the\n\ndeliberative process may be withheld.\" ( quoting Public Citizen,  Inc.  v.  Office of Management & \nBudget,  598 F. 3d 865,  876 ( D. C.  Cir.  2010))).  The Illinois Appellate Court also has stated that\n\npurely factual material\" \ninextricably intertwined'  with predecisional discussions.  Watkins v.  McCarthy, 2012 IL App\n1st)  100632, ¶ 36,  980 N.E. 2d 733,  743 ( 2012) ( quoting Enviro Tech International, Inc.  v. \nUnited States Environmental Protection Agency,  371 F. 3d 370,  374- 75 ( 7th Cir.  2004)). \n\nfrom disclosure under section 7( 1)(\n\nis not exempt\n\nf) unless it is\n\nIn its response to this office,  the Department contended that the section 7( 1)( f) \n\nexemption applies because the withheld use of force reports \" are simply documentation,  which\ninclude opinions on the results of the use of force utilized in a given situation,  that is used by the\npolice department\n\nto analyze the trends in the use of force,  anr training and equipment needs, \n\nand if any techniques and/ or policy revisions are necessary.\"' \n\nThe Department also stated that\n\n10See III.  Att' y Gen.  Pub.  Acc.  Op.  No 16- 009,  issued November 7,  2016,  at 12 (\" An individual' s\n\nbirth date is highly personal by its very nature and the subject' s right to privacy outweighs any legitimate public\ninterest in disclosing this information.\"). \n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 5. \n\nLetter from David.  G.  Penn,  Schmiedeskamp,  Robertson, Neu &  Mitchell,  LLP,  to Marie\n\n\fMr.  Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 7\n\nthe reports \" are not formal policy,  but,  are utilized in the predecisional consideration that leads to\nfinal policy[]\"\n\n12\n\nBased on this office' s confidential review, the use of reports consist almost\n\ninformation rather than opinions,  with the discrete exception of notations\nexclusively of factual\nas to whether the use of force was effective or not.  Although the use of force reports are written\n\nby police officers and reflect\nto police incident reports that recite what happened in a matter- of-fact manner.  Such fact -based\n\ntheir impressions of what transpired in these incidents,  they are akin\n\nthe give- and- take of any Department deliberations or policymaking.  See\n\naccounts do not reveal\nIll. Att' y Gen.  PAC Req.  Rev.  Ltr. 38173,  issued February 13,  2018 ( use of force report not\nexempt under section 7( 1)(\nf) because it \" neither provide[ d]  opinions on the narratives and other\ninformation presented in the report,  nor insight into how the police department formulated any\naction.\").  Because disclosure of the use of force reports would not reveal any predecisional\ndeliberative material,  with the exception of notations as to whether the use of force was effective\n\nor not,  the Department\nFOIA. \n\nimproperly withheld the use of force reports pursuant\n\nto section 7( 1)(\n\nf) of\n\nSection 7( 1)( d)( v)  of FOIA\n\nSection 7( 1)( d)( v)  of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nthat disclosure would: \nbut only to the extent\n\nv) disclose unique or specialized investigative\n\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\n\nto detection,  observation or investigation of incidents of\n\ncrime or misconduct,  and disclosure would result\n\nin\n\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.] \n\n12Letter from David.  G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP,  to Marie\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 5. \n\n\fMr. Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 8\n\nIn support of its assertion of section 7( 1)( d)( v),  the Department argued that \" based\n\non both the department policy and procedure,  these forms are created for law enforcement\npurposes only involving unique or specialized investigation and techniques[,]\"  and that\ndisclosure of the records \" could compromise the ability of the police department to properly\nconduct\n\nits job. i13\n\nNeither the Department' s response to Mr. Hopfs request nor the Department' s\n\nresponse to this office demonstrated that the responsive records depict any \" unique or specialized\ninvestigative techniques other than those generally used and known\"  as required under the plain\nlanguage of section 7( 1)( d)( v).  The responsive records describe the use of force to subdue a\nsubject rather than investigative techniques.  Therefore,  this office has determined that the\nDepartment\n\nimproperly withheld the use of force reports under section 7( 1)( d)( v)  of FOIA. \n\nSection 7( 1)(\n\ns)  of FOIA\n\nSection 7( 1)(\n\ns)  of FOIA exempts from inspection and copying: \n\nAny and all proprietary information and records related to\n\nthe operation of an intergovernmental risk management association\nor self-insurance pool or jointly self-administered health and\naccident cooperative or pool.  Insurance or self insurance\nincluding any intergovernmental\nself insurance pool)  claims,  loss or risk management\n\nrisk management association or\ninformation, \n\nrecords,  data, advice or communications. ( Emphasis added.) \n\nThe Department' s response to this office contended that the records are exempt\n\nfrom disclosure under section 7( 1)(\ns)  because they \" are used to assess,  develop and modify use\nof force techniques,  formulate policy and procedures,  and develop training for police officers in\nthe use of force as part of risk management.\"  14 Further,  the Department argued that \"[ w) ithout\nthe data and opinions contained in the Use of Force reports,  the City's ability to manage and\nassess risk is compromised. i15\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 4. \n\nLetter from David.  G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP,  to Marie\n\nHollister, Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 5. \n\n14 Letter from David.  G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP, to Marie\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 5. \n\n15Letter from David.  G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP, to Marie\n\n\fMr. Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 9\n\nThe Attorney General has issued a binding opinion which concluded that\n\nmanagement\"  is the operative word in section 7( 1)(\n\ns),  and that the exemption is limited to\n\ninformation regarding the policies,  procedures,  and practices that an intergovernmental\nmanagement association or self- insurance pool adopts to manage its claims,  loss,  and risk\n\nrisk\n\nexposure.\" \nDepartments response to this office states that it uses the use of force reports to formulate risk\n\nIll.  Att' y Gen.  Pub.  Acc.  Op.  No.  11- 004,  issued April 15,  2011,  at 5- 6.  Although the\n\nmanagement policies and procedures,  the reports themselves do not reveal any policies, \nprocedures, or practices that the Department has adopted to manage claims,  loss,  and risk\n\nexposure.  Accordingly,  the Department did not sustain its burden of demonstrating that the\nrecords are exempt\n\nfrom disclosure pursuant\n\nto section 7( 1)(\n\ns)  of FOIA. \n\nSection 7( 1)( v)  of FOIA\n\nSection 7( 1)( v)  of FOIA exempts from disclosure: \n\nVulnerability assessments,  security measures,  and\n\nresponse policies or plans that are designed to identify,  prevent, \nor respond to potential attacks upon a community' s population or\nsystems,  facilities, or installations, the destruction or contamination\n\nof which would constitute a clear and present danger to the health\n\nor safety of the community,  but only to the extent\ncould reasonably be expected to jeopardize the effectiveness of the\nthem or the\nmeasures or the safety of the personnel who implement\npublic.  Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment,  to the operation of communication\n\nthat disclosure\n\nsystems or protocols,  or to tactical operations. ( Emphasis added.) \n\nIn its response to this office,  the Department argued that the reports \" include\n\ninformation relating to response policies or plans\"  that \" could impact the safety of police officers\nand other bystanders.  The concern is that this information could be disseminated,  and people\nwould understand how the police respond and essentially react against that.\" 16\n\nBy its plain language,  the section 7( 1)( v) exemption applies to \"[ v] ulnerability\n\nassessments,  security measures,  and response policies or plans\"  themselves. \nDepartment argued that the use of force reports are exempt because they relate to response\npolicies or plans.  The exemption concerns homeland security and emergency preparations rather\n\nIn contrast,  the\n\nHollister,  Assistant Attorney General,  Public Access Bureau ( July 24,  2018),  at 6. \n\n1' Letter from David.  G.  Penn,  Schmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP,  to Marie\n\n\fr. Matthew Hopf\n\nMs.  Michele Flaiz\n\nSeptember 13,  2018\n\nPage 10\n\nthan routine duties carried out by a police department.  See I11.  Att'y Gen.  PAC Req.  Rev.  Ltr. \n48212,  issued November 2,  2017,  at 7.  This office' s review of the withheld reports determined\n\nthat they are not vulnerability assessments,  security measures,  or response policies or plans\nwithin the scope of section 7( 1)( v);  they recount circumstances that have already transpired\nwhich are unrelated to homeland security or emergency preparations.  Accordingly,  this office\nconcludes that the Department improperly denied the use of force reports pursuant to section\n7( 1)( v). \n\nBecause the Department did not sustain its burden of demonstrating by clear and\nfrom disclosure in their entireties, \n\nconvincing evidence that the use of force reports are exempt\nthis office asks that the Department provide Mr. Hopf with copies of the use of force reports, \n\nsubject only to the redaction of the discrete information identified above as exempt\ndisclosure under sections 7( 1)( b),  7( 1)( c),  and 7( 1)( f) of FOIA. \n\nfrom\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion.  This letter serves to close this matter.  If you have any\nquestions,  please contact me at the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n53887 f 71b proper improper 71c proper improper 71 dv improper 71f proper improper 71s\n\nimproper 71v improper pd\n\ncc: \n\nVia electronic mail\n\nMr. David G.  Penn\n\nSchmiedeskamp,  Robertson,  Neu &  Mitchell,  LLP\n525 Jersey Street\nQuincy,  Illinois 62301\ndpenn@smm. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police use-of-force reports for 2017","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53887/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 13, 2018\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nMr. Matthew Hopf\n\nStaff Writer\n\nThe Herald - Whig\n130 South Fifth Street\n\nP. O. Box 909\n\n[street address redacted for site publication -- see original PDF]\nmhopf@whig. com\n\nVia electronic mail\n\nMs. Michele Flaiz\n\nFOIA Officer\n\nCity of Quincy\n730 Maine Street\n\nQuincy, Illinois 62301\nfoia@quincyil. gov\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 53887\n\nDear Mr. Hopf and Ms. Flaiz: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2016)). For the reasons that follow, the\n\nPublic Access Bureau concludes that City of Quincy (City) Police Department (Department) \nimproperly withheld use of force reports, with the exception of certain discrete information, in\nresponse to Mr. Matthew Hopfs FOIA request. \n\nOn June 4, 2018, Mr. Hopf, of The Herald -Whig, submitted a FOIA request to the\n\nDepartment seeking copies of \"all use of force reports completed by Quincy Police officers in\n2017.\" I On June 6, 2018, the Department provided him with a copy of Deputy Chief Doug\nVandermaiden's \" 2017 Annual Review of 'Level of Resistance' Reports\"; \n\nthe Department did not\n\nPolice Department (June 4, 2018). \n\nLetter from Matthew T. Hopf, Staff Writer, Quincy Herald -Whig, to Susan Vahlkamp, Quincy\n\nstate that it had withheld any responsive records. On June 12, 2018, Mr. Hopf replied by e- mail, \nstating \"[ t]his helps, but it doesn't really give us details about the incidents involved and when\nthey took place. If we could get the actual reports, that would be beneficial.\" 2 On June 14, 2018, \nthe Department responded by denying the original request in its entirety pursuant to sections\ns), and 7(1)(v) of FOIA (5 ILCS 140/ 7(1)(b), (1)(c), \n7(1)(b), 7(1)(c), 7(1)(d)(v), 7(1)(1)(v) (West 2017 Supp.)). On July 5, 2018, this office received Mr. \nf), (1)(1)(d)(v), (1)(f), 7(1)(s), (Hopfs Request for Review contesting the Department's denial. Specifically, he argued that the\nprivacy exemptions do not apply because the individuals involved are public employees, and that\nthe section 7(1)(that private information such as Social Security numbers can be redacted. \n\nf) exemption does not apply because the records are factual; he acknowledged\n\nto the Department and asked it to provide unredacted copies of the responsive records for our\n\nOn July 12, 2018, this office forwarded a copy of Mr. Hopfs Request\n\nfor Review\n\nconfidential review, together with a detailed explanation of the legal and factual bases for the\nasserted exemptions.3 On July 24, 2018, this office received those materials from counsel for the\nDepartment, who noted that the type of requested record is called a \" Levels of Resistance\n\nReport\" by the Department, but that it would refer to the type of record as a \" Use of Force\nreport\" for the purposes of its response. The Department maintained that it responded properly\nto the request. On July 25, 2018, this office forwarded a copy of the Department's response to\nMr. Hopf; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 (West 2016). \n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\nlaw or a court order.\" \n\ndisclosure is required by another provision of this Act, a State or federal\nSection 2(c- 5) of FOIA (5 ILCS 140/ 2(c- 5) (West 2016)) defines \" private information\" as: \n\n2E -mail from Matt Hopf, Reporter, Herald -Whig, to Susan Vahlkamp (June 12, 2018). \n\n3 This office inadvertently did not include section 7(I)(v) of FOIA in its July 12. 2018, letter to the\nDepartment. Nevertheless, the Department did provide an analysis of that exemption in its response to this office. \n\nU] nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\n\nidentifiers, personal\n\nfinancial\n\ninformation, passwords or other\n\naccess codes, medical\n\nrecords, home or personal\n\ntelephone\n\nnumbers, and personal email addresses. Private information also\n\nincludes home address and personal\n\nlicense plates, except as\n\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nIn its response to this office, the Department stated that the use of force reports\n\ncontain various private information, not of the police officers, as Mr. Hopis [ letter] cites, but of\n\nthe subject that is part of each report. i4 The Department argued that, at a minimum, \" any\npersonal identifying information, such as the name, date of birth and other information in the\nshould be redacted, if production of the reports is ordered. i5\nreport deemed to be private * * * \n\nConspicuously absent\n\nfrom the above definition of \"private information\" \n\nis any\n\nreference to a person's name. Although names are unquestionably \" personal information\" in the\nsense that they are specific to particular persons (see Lieber v. Board of Trustees ofSouthern\nIllinois University, 176 Ill. 2d 401, 411 (1997)), they are neither confidential nor unique. \nInstead, names are \" basic identification,\" and as the Supreme Court concluded in Lieber, \n\nw] here the legislature intended to exempt a person's identity from disclosure, it [ has done] so\n\nexplicitly.\" Lieber, 176 I11. 2d at 412. Therefore, by excluding names from the definition of\nprivate information,\" the General Assembly clearly did not intend for names to be exempt from\ndisclosure under section 7(1)(b) of FOIA\n\nAlthough names as well as dates of birth are not within the scope of section\n\n7(1)(b), as they are not \" unique identifiers,\" the Department may properly redact information that\nmeets the plain language of the definition of \"private information\" in FOIA. Based on this\n\noffice's confidential review of the use of force reports, the primary information that meets this\ndefinition is home addresses and signatures. \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \n\nas: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\n\nright to privacy outweighs any legitimate public interest\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nin\n\nconsidered an invasion of personal privacy. \n\nA public body's assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by- case basis. Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 I11. App. 3d 192, 196 (1st Dist. \n2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\nthat standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202\n4th Dist. 1994). Illinois courts consider the following factors in determining whether disclosure\nof information would constitute an unwarranted\n\ninvasion of personal privacy: \"(1) \n\nthe plaintiffs\n\ninterest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal\n\nprivacy, and (4) the availability of alternative means of obtaining the requested information.\" \nNational Ass' n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n13 (1st Dist. 2010). \n\nIn its response to this office, the Department argued: \n\nT] here is specificity and detail about the nature of the use of force\nthat could be an unwarranted invasion of privacy of the subject of\nthe report. Given that these Use of Force reports are strictly\ninternal, are not used in the criminal investigation or prosecution, \n\nor, in any way, shared with third parties, there is no compelling or\n\nThus, the Department claimed that \" the balance weighs in favor of not producing the underlying\nUse of Force reports, where the summary of reports has already been produced.\"' \n\nUnder the first and second factors of the balancing test, Mr. Hopfs interest in\nin information regarding the\n\ndisclosure as a reporter is aligned with the strong public interest\nmanner in which law enforcement officials perform their public duties, particularly with respect\nto the use of force. See, for example, Wiggins v. Burge, 173 F. R.D. 226, 229 (N. D. 111. 1997) \n\nordering disclosure of documents pertaining to allegations of police torture in part because\np] erformance of public duties and investigations of their performance is a matter of great\n\npublic importance.\"). \n\nRegarding the third factor, the degree of invasion of personal privacy, some of the\n\ninformation that would constitute a clearly\n\nuse of force reports contain certain highly personal\nunwarranted invasion of the subjects' personal privacy if their identifying information were to be\ndisclosed. Further, information identifying a suspect or subject of a use of force report who was\nnot arrested or charged is highly personal. Citizens for Responsibility and Ethics in Washington\nv. United States Dep' t ofJustice, 846 F. Supp. 2d 63, 71 (D. D. C. 2012) (quoting American Civil\nLiberties Union v. United States Dep' t of Justice, 655 F. 3d 1, 7 (D. C. Cir. 2011)) (the right to\nprivacy \"' is strongest where the individuals in question ' have been investigated but never publicly\ncharged.\" 8 However, redaction of the names of the subjects (other than the arrestees), 9 and any\nother discrete identifying details, would significantly diminish the degree of invasion of personal\nprivacy that would result from disclosure. \n\nFinally, there do not appear to be any other means of obtaining the requested use\n\nof force reports short of a lawsuit. Although the Department argued that the summary of the\nreports disclosed to Mr. Hopf serves the purpose of providing insight\ninto the Department's use\nof force, the summary does not provide the same detailed information as the reports themselves. \n\n7 Letter from David. G. Penn, Schmiedeskamp. Robertson, Neu & Mitchell, LLP, to Marie\n\nHollister, Assistant Attorney General, Public Access Bureau (July 24, 2018), at 3. \n\nBSee also 111. Att' y Gen. Pub. Acc. Op. No. 16- 009, issued November 7, 2016, at 16 (disclosure of\n\ninformation identifying suspect of a crime who had not been arrested or charged would constitute an unwarranted\ninvasion of personal privacy). \n\n9 The Attorney General has issued a binding opinion concluding that \" arrestees are considered\nessentially public personages' with a ' limited' and ' qualified' right to privacy, ' and the basic facts which identify\nthem and describe generally the investigations and their arrests become matters of legitimate public interest' that are\nsubject to disclosure.\" 111. Att'y Gen. Pub. Acc. Op. No. 12- 006, issued March 16, 2012, at 7 (citing Tennessean\n\nAccordingly, this office concludes that the public interest weighs in favor of\n\ndisclosure of the reports, subject to the redaction of the names of the members of the public who\n\nwere not arrested and other discrete details that would identify them, together with dates of\nbirth. 10\n\nSection 7(1)(t) of FOIA\n\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed, \n\nSection 7(1)(f) of FOIA exempts from inspection and copying \"[ pireliminary\n\nor policies or actions are formulated, except that a specific record or relevant portion of a record\n\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" \n\nThe section 7(1)(f) exemption applies to \" inter- and intra -agency predecisional\n\nand deliberative material.\" Harwood v. McDonough, 344 I11. App. 3d 242, 247 (1st Dist. 2003). \nIt is \" intended to protect the communications process and encourage frank and open discussion\n\namong agency employees before a final decision is made.\" Harwood, 344 III. App. 3d at 248; \nsee also Kalven v City of Chicago, 2014 IL App (1st) 121846, ¶ 24, 7 N.E. 3d 741, 748 (2014) \n\nOnly those portions of a predecisional document\n\nthat reflect the give and take of the\n\ndeliberative process may be withheld.\" (quoting Public Citizen, Inc. v. Office of Management & \nBudget, 598 F. 3d 865, 876 (D. C. Cir. 2010))). The Illinois Appellate Court also has stated that\n\npurely factual material\" \ninextricably intertwined' with predecisional discussions. Watkins v. McCarthy, 2012 IL App\n1st) 100632, ¶ 36, 980 N.E. 2d 733, 743 (2012) (quoting Enviro Tech International, Inc. v. \nUnited States Environmental Protection Agency, 371 F. 3d 370, 374- 75 (7th Cir. 2004)). \n\nfrom disclosure under section 7(1)(is not exempt\n\nf) unless it is\n\nIn its response to this office, the Department contended that the section 7(1)(f) \n\nexemption applies because the withheld use of force reports \" are simply documentation, which\ninclude opinions on the results of the use of force utilized in a given situation, that is used by the\npolice department\n\nto analyze the trends in the use of force, anr training and equipment needs, \n\nand if any techniques and/ or policy revisions are necessary.\"' \n\nThe Department also stated that\n\n10 See III. Att' y Gen. Pub. Acc. Op. No 16- 009, issued November 7, 2016, at 12 (\" An individual's\n\nbirth date is highly personal by its very nature and the subject's right to privacy outweighs any legitimate public\n\nthe reports \" are not formal policy, but, are utilized in the predecisional consideration that leads to\nfinal policy[]\"\n\n12\n\nBased on this office's confidential review, the use of reports consist almost\n\ninformation rather than opinions, with the discrete exception of notations\nexclusively of factual\nas to whether the use of force was effective or not. Although the use of force reports are written\n\nby police officers and reflect\nto police incident reports that recite what happened in a matter- of-fact manner. Such fact -based\n\ntheir impressions of what transpired in these incidents, they are akin\n\nthe give- and- take of any Department deliberations or policymaking. See\n\naccounts do not reveal\nIll. Att' y Gen. PAC Req. Rev. Ltr. 38173, issued February 13, 2018 (use of force report not\nexempt under section 7(1)(f) because it \" neither provide[ d] opinions on the narratives and other\ninformation presented in the report, nor insight into how the police department formulated any\naction.\"). Because disclosure of the use of force reports would not reveal any predecisional\ndeliberative material, with the exception of notations as to whether the use of force was effective\n\nor not, the Department\nFOIA. \n\nimproperly withheld the use of force reports pursuant\n\nto section 7(1)(f) of\n\nSection 7(1)(d)(v) of FOIA\n\nSection 7(1)(d)(v) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nthat disclosure would: \nbut only to the extent\n\nv) disclose unique or specialized investigative\n\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\n\nto detection, observation or investigation of incidents of\n\ncrime or misconduct, and disclosure would result\n\nin\n\nIn support of its assertion of section 7(1)(d)(v), the Department argued that \" based\n\non both the department policy and procedure, these forms are created for law enforcement\npurposes only involving unique or specialized investigation and techniques[,]\" and that\ndisclosure of the records \" could compromise the ability of the police department to properly\nconduct\n\nits job. i13\n\nNeither the Department's response to Mr. Hopfs request nor the Department's\n\nresponse to this office demonstrated that the responsive records depict any \" unique or specialized\ninvestigative techniques other than those generally used and known\" as required under the plain\nlanguage of section 7(1)(d)(v). The responsive records describe the use of force to subdue a\nsubject rather than investigative techniques. Therefore, this office has determined that the\nDepartment\n\nimproperly withheld the use of force reports under section 7(1)(d)(v) of FOIA. \n\nSection 7(1)(s) of FOIA\n\nSection 7(1)(s) of FOIA exempts from inspection and copying: \n\nAny and all proprietary information and records related to\n\nthe operation of an intergovernmental risk management association\nor self-insurance pool or jointly self-administered health and\naccident cooperative or pool. Insurance or self insurance\nincluding any intergovernmental\nself insurance pool) claims, loss or risk management\n\nrisk management association or\ninformation, \n\nrecords, data, advice or communications. (Emphasis added.) \n\nThe Department's response to this office contended that the records are exempt\n\nfrom disclosure under section 7(1)(s) because they \" are used to assess, develop and modify use\nof force techniques, formulate policy and procedures, and develop training for police officers in\nthe use of force as part of risk management.\" 14 Further, the Department argued that \"[ w) ithout\nthe data and opinions contained in the Use of Force reports, the City's ability to manage and\nassess risk is compromised. i15\n\nHollister, Assistant Attorney General, Public Access Bureau (July 24, 2018), at 4. \n\nLetter from David. G. Penn, Schmiedeskamp, Robertson, Neu & Mitchell, LLP, to Marie\n\nThe Attorney General has issued a binding opinion which concluded that\n\nmanagement\" is the operative word in section 7(1)(s), and that the exemption is limited to\n\ninformation regarding the policies, procedures, and practices that an intergovernmental\nmanagement association or self- insurance pool adopts to manage its claims, loss, and risk\n\nrisk\n\nexposure.\" \nDepartments response to this office states that it uses the use of force reports to formulate risk\n\nIll. Att' y Gen. Pub. Acc. Op. No. 11- 004, issued April 15, 2011, at 5- 6. Although the\n\nmanagement policies and procedures, the reports themselves do not reveal any policies, \nprocedures, or practices that the Department has adopted to manage claims, loss, and risk\n\nexposure. Accordingly, the Department did not sustain its burden of demonstrating that the\nrecords are exempt\n\nfrom disclosure pursuant\n\nto section 7(1)(s) of FOIA. \n\nSection 7(1)(v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments, security measures, and\n\nresponse policies or plans that are designed to identify, prevent, \nor respond to potential attacks upon a community's population or\nsystems, facilities, or installations, the destruction or contamination\n\nof which would constitute a clear and present danger to the health\n\nor safety of the community, but only to the extent\ncould reasonably be expected to jeopardize the effectiveness of the\nthem or the\nmeasures or the safety of the personnel who implement\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\n\nthat disclosure\n\nsystems or protocols, or to tactical operations. (Emphasis added.) \n\nIn its response to this office, the Department argued that the reports \" include\n\ninformation relating to response policies or plans\" that \" could impact the safety of police officers\nand other bystanders. The concern is that this information could be disseminated, and people\nwould understand how the police respond and essentially react against that.\" 16\n\nBy its plain language, the section 7(1)(v) exemption applies to \"[ v] ulnerability\n\nassessments, security measures, and response policies or plans\" themselves. \nDepartment argued that the use of force reports are exempt because they relate to response\npolicies or plans. The exemption concerns homeland security and emergency preparations rather\n\nthan routine duties carried out by a police department. See I11. Att'y Gen. PAC Req. Rev. Ltr. \n48212, issued November 2, 2017, at 7. This office's review of the withheld reports determined\n\nthat they are not vulnerability assessments, security measures, or response policies or plans\nwithin the scope of section 7(1)(v); they recount circumstances that have already transpired\nwhich are unrelated to homeland security or emergency preparations. Accordingly, this office\nconcludes that the Department improperly denied the use of force reports pursuant to section\n7(1)(v). \n\nBecause the Department did not sustain its burden of demonstrating by clear and\nfrom disclosure in their entireties, \n\nconvincing evidence that the use of force reports are exempt\nthis office asks that the Department provide Mr. Hopf with copies of the use of force reports, \n\nsubject only to the redaction of the discrete information identified above as exempt\ndisclosure under sections 7(1)(b), 7(1)(c), and 7(1)(f) of FOIA. \n\nfrom\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\nrequire the issuance of a binding opinion. This letter serves to close this matter. If you have any\nquestions, please contact me at the Chicago address on the first page of this letter. \n\nVery truly yours, \n\nMARIE HOLLISTER\n\nAssistant Attorney General\nPublic Access Bureau\n\n53887 f 71b proper improper 71c proper improper 71 dv improper 71f proper improper 71s\n\nimproper 71v improper pd\n\ncc: \n\nVia electronic mail\n\nMr. David G. Penn\n\nSchmiedeskamp, Robertson, Neu & Mitchell, LLP\n525 Jersey Street\nQuincy, Illinois 62301\ndpenn@smm. com"}
{"id":919,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-06-04","case_number":null,"request_numbers":["53943"],"title":"City Colleges of Chicago failed to provide incident reports and conduct adequate search","filename":"53943, issued June 4, 2019.pdf","rel_path":null,"word_count":3158,"summary":"The requester sought various records from City Colleges of Chicago regarding campus crime, security logs, and specific meetings; the PAC determined the college failed to adequately respond to certain items.","plain_summary":"A requester asked City Colleges of Chicago for campus crime reports and records about specific meetings. The Attorney General's office found that the college did not properly provide the requested security logs and failed to show it had thoroughly searched for the meeting records. The college was ordered to provide the missing reports and perform a new, documented search for the meeting materials.","holding":"The City Colleges of Chicago improperly responded to the FOIA request by failing to provide certain incident reports and failing to conduct an adequate search for meeting records.","legal_question":"Did the public body violate FOIA by failing to provide responsive incident reports and failing to conduct an adequate search for records pertaining to a specific meeting?","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City Colleges of Chicago","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved campus safety and security incident reports, daily crime logs, and records related to a chancellor's focus group meeting.","ocr_status":"ok","ocr_quality":96.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_f/53943%2C%20issued%20June%204%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["campus security","incident reports","search adequacy","FOIA request"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJune 4,  2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Karla Gowen\n\nGeneral Counsel\n\nCity Colleges of Chicago\n226 West Jackson Boulevard\n\nChicago,  Illinois 60606\n\nkgowen@ccc. edu\n\nRE:  FOIA Request for Review — 2018 PAC 53943\n\nDear\n\nand Ms.  Gowen: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow,  the. \nPublic Access Bureau concludes that the City Colleges of Chicago ( City Colleges)  improperly\nresponded to certain parts of\n\nMay 6,  2018,  FOIA request. \n\nOn that date, \n\nsubmitted an eight -item FOIA request to the City\n\nColleges seeking copies of various records pertaining to Wilbur Wright College.  In particular, \nthe request sought: \n\n1. \"\n\nRecords detailing the four ( 4)  on -campus stalking crimes\nreported * * *  between 2014-2016\"; \n\n2. \" Records detailing all ' Safety and Security Incident Reports' \n\nand ' Daily Crime Log( s)' * * * \n2018 semesters\"; \n\nduring the Fall 2017 and Spring\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Karla Gowen\n\nJune 4,  2019\n\nPage 2\n\n3. \" Records detailing\"  three \" meetings conducted at Wilbur\n\nWright College[,]\" \n\nincluding the \"' Chancellor's Focus Group' \n\nheld * * * \n\non Thursday,  November 30` h,  2017\"; \n\n4. \" Records detailing the ' Materials and Supplies', ' Other\n\nExpenditures ( i. e.  student government...)', \n\nand ' Travel and\n\nConference'  spending categories * * * \nSpring 2018 semesters\"; \n\nin the Fall 2017 and\n\n5. \"[\n\nT] he credentials,  experience,  training,  and/ or certification\n\nincluding but not limited to documentation of individual\nexpertise in [ eight specified areas]  for those who make\n\ndecisions in disciplinary processes and/ or sit on hearing\ncommittees,\" \nColleges employees; \n\nincluding the credentials of four named City\n\n6. \" A list of positions of employment belonging to the Student\n\nServices department[,]\" \n\nincluding the responsibilities for each\n\nposition; \n\n7. \" Records starting in 2014 detailing assessments about\n\nthe\n\neffectiveness of documented cases of disciplinary sanctions\nimposed on students and employees,\"  and; \n\n8. \" Records detailing the organizational structure of City Colleges\nof Chicago and related entities such as the City Colleges of\nChicago Foundation,  Student Government Association,  or\nWellness Center[.]\" 11I\n\nHaving received no response, \n\nsubmitted another copy of his request\n\nto City Colleges on May 14,  2018.  On May 18,  2018,  the City Colleges purported to extend its\ntime to respond by five business days pursuant\nto section 3( e)  of FOIA ( 5 ILCS 140/ 3( e) ( West\n2016)),  even though such an extension notification must be sent within five business days after\n\nreceipt of a request under the plain language of section 3( d)  of FOIA ( 5 ILCS 140/ 3( d) ( West\n2016)). 2 On June 8,  2018,  the City Colleges provided\nresponsive records,  links to records posted on its website,  and a written answer to one item of the\n\nwith copies of certain\n\nrequest.  As to the remaining items, the City Colleges either asserted that it was unable to locate\nresponsive records or asked\n\nto be more specific or narrow the request. \n\nMay 6,  2018). \n\nE- mail from\n\nto FOIA Officer, General Counsel,  City Colleges of Chicago\n\n20n May 29,  2018, \n\nsubmitted a Request for Review ( 2018 PAC 53332)  to this\n\noffice alleging that\nColleges responded on June 8,  2018. \n\nthe City Colleges had yet to respond to his request.  That matter was closed when the City\n\n\fMs.  Karla Gowen\n\nJune 4,  2019\n\nPage 3\n\nOn July 9,  2018,  this office received\n\nRequest for Review\n\ndisputing the completeness of the City Colleges'  response to his request.  He alleged,  in pertinent\npart, that the response was inadequate in the following ways: \n\nThe response to # 1 does not include daily campus crime\nlogs before Sunday March 26,  2018\"; \nThe response [ to] # 2 [ does]  not include all ' Safety and\nSecurity Incident Reports'  kept or created for Wilbur\nWright College during the fall 2017 and spring 2018\n\nsemesters\"; \n\nThe response to # 3 does not include any records of the\nChancellor' s Focus Group'  on Thursday,  November 30, \n2017\"; \n\nThe response to # 4 does not include a list of vendors\n\nauthorized to conduct business with [ City Colleges]. \nProcurement Services staff enters approved firms into the\n\nCity Colleges]  vendor database\"; \nThe response to #5 does not include credentials,  training, \nand or certification for four specified [ City Colleges] \n\nemployees\";  and\n\nThe response to #7 does not list the Dean of Student\n\nServices position,  and does not provide a detailed list ofjob\n\nresponsibilities for the positions of employment belonging\nto the Student Services department[.]\"\n\n131\n\nWith regard to item three of his request, \nemail sent to members of the student government about this meeting.\" 4 Addressing item five,  he\nclarified that he sought \" all records from complete and official personnel files for these four\n\nprovided this office with a copy of \"an\n\nindividuals, \n\nspecific pages from that report\n\nrelated to training referenced in the 2017 Annual Security Report[,]\"  and identified\nthat pertain to safety and security training. 5\n\nGeneral ( July 9,  2018). \n\n3E -mail from\n\nto Sarah Pratt,  Public Access Counselor,  Office of the Attorney\n\nGeneral ( July 9,  2018). \n\n4E -mail\n\nfrom\n\nto Sarah Pratt,  Public Access Counselor.  Office of the Attorney\n\nGeneral ( July 9,  2018). \n\nE- mail from\n\nto Sarah Pratt,  Public Access Counselor,  Office of the Attorney\n\n\fMs.  Karla Gowen\n\nJune 4,  2019\n\nPage 4\n\nOn July 17,  2018,  this office forwarded a copy of the Request for Review to the\nallegations.  This office also\n\nCity Colleges and asked it to respond in writing to\nasked the City Colleges to provide a detailed description of its search for responsive records, \nincluding the recordkeeping systems that were searched and personnel who were consulted.  On\nJuly 25,  2018,  this office received the City Colleges'  written response and additional records\nresponsive to the request\nof the City Colleges'  response to\nsought clarification as to whether the additional\n\nhe replied on August 2,  2018. \nresponsive records could be provided to him and\n\nfor this office' s review.  On July 30,  2018,  this office forwarded a copy\n\nquestioned whether the City Colleges could treat his request as unduly burdensome based on the\ntimeliness of its response.  On March 6,  2019,  the City Colleges provided\ncopies of the additional records with certain redactions;  those records consist of a list of vendors\n\nwith\n\nauthorized to conduct business with the City Colleges and copies of job descriptions for positions\nwithin the student services department. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department of Public Health,  218 111.  2d 390,  415 ( 2006).  When presented with a FOIA\nrequest, a public body -is required to conduct a \" reasonable search tailored to the nature of [that] \nparticular request.\"  Campbell v.  US. Department ofJustice,  164 F. 3d 20,  28 ( D. C.  Cir.  1998). \nA public body is not required to \" search every record system[,]\"  but it \" cannot\nonly one record system if there are others that are likely to turn up the requested information.\" \nOglesby v.  US. Department of the Army,  920 F. 2d 57,  68 ( D.C.  Cir.  1990);  but see Yeager v. \nDrug Enforcement Admin.,  678 F. 2d 315,  321 ( D. C.  Cir.  1982) (\" A requester\nis entitled only to\nrecords that an agency has in fact chosen to create and retain.\").  Further, a public body \" has a\nduty to construe a FOIA request\nliberally.\"  Nation Magazine v.  U.S.  Customs Service,  71 F. 3d\n885,  890 ( D. C.  Cir.  1995). \n\nits search to\n\nlimit\n\nIn its response to this office, the City Colleges asserted that it had provided\nwith copies of records responsive to items one and two of the request.  Specifically,  the\n\nCity Colleges stated that it had furnished copies of reports pertaining to the four on -campus\ncrimes specified in item one and the daily crime logs requested in item two.  With regard to the\nlatter item,  the City Colleges asserted that the logs \" have been captured by month on a one- page\ndocument with date of reported crimes clearly delineated[,]\"  and list \"over 100 safety and\nsecurity incident\nprovide a set of over 100 individual safety and security reports would be unduly burdensome[,]\" \n\nreports.\" 6 The City Colleges argued,  however,  that \" No review,  redact and\n\nJune 25,  2018). \n\n6Letter from James M.  Reilly,  Associate General Counsel,  City Colleges of Chicago.  to AAG Lim\n\n\fMs.  Karla Gowen\n\nJune 4,  2019\n\nPage 5\n\nsought particular incident reports, \" Rhe City Colleges]  will\n\nand stated that if\naccommodate his request.\" 7 This office construed the City Colleges as invoking section 3( g)  of\nFOIA ( 5 ILCS 140/ 3( g) ( West 2016))  to deny the request as unduly burdensome.  Addressing\nitem three,  the City Colleges asserted that it had not\nlocated minutes of the chancellor' s focus\ngroup meeting held on November 30,  2017,  and attributed that answer to the Director of Student\nActivities at Wilbur Wright College,  Ms.  Kathleen Ordinario.  Similarly,  addressing item five, \nthe City Colleges asserted that \"[ a]  search of the personnel\nfiles for the four individuals cited in\nthe revised request found no records responsive to\"  the item;  the City Colleges stated that its\nthen -Associate General Counsel,  Mr. James M.  Reilly, had conducted the search of those\npersonnel\nfiles.  As noted above,  the City Colleges also provided\nrecords responsive to the remaining disputed items,  four and six. \n\nwith copies of\n\nThis office has reviewed the records provided to\n\nThe City\n\nColleges furnished him with a set of crime logs,  including daily logs from March 25,  2018.  to\nMay 24,  2018,  and monthly logs listing the dates and times of reported crimes within those\nmonths for August 2017 to April 2018.  The daily logs and monthly logs have the same format; \nthey do not appear to be different types of records,  but simply differ as to whether they list\nreported crimes from either one date or one month per page.  The City Colleges also provided\nlists aggregating the number of incidents that occurred on campus by type for the fall semester of\n2017 and spring semester of 2018.  Thus,  although\nCity Colleges did not provide him with copies of daily campus crime logs from before Sunday, \nMarch 26,  2018,  in the sense that it did not provide him with a separate log for each day,  the City\nColleges appears to have provided him with complete daily crime log information covering the\ntime frame of August 2017 through March 25,  2018.  This office has not received information\n\ncorrectly contended that the\n\nindicating that the City Colleges possessed separate daily crime logs for each day during that\ntime period.  Accordingly,  based on the available information, this office concludes that the\nportion of the City Colleges'  response concerning the crime logs did not violate FOIA. \n\nOn the other hand,  the records\n\nreasonably described in the second\n\nitem of his request included not just crime logs,  but incident reports as well.  The language\n\nr] ecords detailing all ' Safety and Security Incident Reports'  and ' Daily Crime Log( s)' * * * \n\nduring the Fall 2017 and Spring 2018 semesters\"  indicated that he sought both types of records. s\nAlthough the City Colleges argued to this office that providing\nit waived\nresponsive incident reports for the specified time period would be unduly burdensome. \nits ability to rely on that provision to deny his request by failing to respond in a timely manner.  5\n\nwith copies of\n\nJune 25,  2018) \n\nMay 6,  2018). \n\nLetter from James M.  Reilly,  Associate General Counsel,  City Colleges of Chicago,  to AAG Lim\n\n8E -mail from\n\nto FOIA Officer, General Counsel,  City Colleges of Chicago\n\n\fMs.  Karla Gowen\n\nJune 4,  2019\n\nPage 6\n\nILCS 140/ 3( d) ( West 2016) (\" A public body that fails to respond to a request within the requisite\nperiods in this Section but thereafter provides the requester with copies of the requested public\n\nfourteen business days later on June 8,  2018.  Even assuming that the City\n\nrecords may not impose a fee for such copies.  A public body that fails to respond to a request\nreceived may not treat the request as unduly burdensome\").  As discussed above. \nsubmitted his FOIA request to the City Colleges on May 6,  2018,  and forwarded another copy of\nhis request\nto the City Colleges on May 14,  2018.  On May 18,  2018,  the City Colleges purported\nto extend the time to respond by five business days.  The City Colleges subsequently responded\nto the request\nColleges did not receive\nrespond to the request within the time periods permitted under sections 3( d)  and 3( e)  of FOIA. 9\nThis office has not received information indicating that the City Colleges and\nagreed in writing to extend the time for compliance beyond the five business days allowed under\nsection 3( e). 10 Therefore,  the City Colleges waived the ability to claim that compliance with the\nportion of the request seeking incident reports would be unduly burdensome.  See 111.  Att' y Gen. \nPub.  Acc.  Op.  No.  12- 014,  issued December\nassert\n\nthat compliance would be unduly burdensome because its response to request was late). \n\nrequest until May 14,  2018,  the City Colleges did not\n\n11,  2012,  at 11 ( school district waived ability to\n\nWith regard to item three,  this office has reviewed the copy of the e- mail\nincluded in his Request for Review.  The e- mail is from Ms.  Ordinario to a group of\n\nthat\n\nstudents regarding their participation in a focus group meeting.  The e- mail\nstudents represented various interest groups and constituencies,  and that the meeting was\nintended to gather feedback about\nCity Colleges appropriately consulted with Ms.  Ordinario with regard to item three,  as she sent\nthe e- mail\nrelating to the meeting at issue.  The City Colleges did not,  however,  explain the search that she\nperformed,  such as the specific recordkeeping systems that she searched.  While the City\nColleges asserted that Ms. Ordinario was unable to locate records of minutes for the November\n\nin question and thus would be reasonably expected to have knowledge of records\n\nthe concerns of the college community. \n\nindicates that the\n\nIn this matter,  the\n\n30,  2017,  meeting,  item three of the request was not limited to minutes.  Instead,  the item sought\nrecords detailing the meetings\"  and asked the City Colleges to \" include minutes for\"  the\nmeeting.)   The City Colleges did not address whether Ms.  Ordinario had performed a search for\n\nrequest\n\nfor public records within 5 business days after\n\nits receipt of the request,  unless the time for response is\n\nSection 3( d)  of FOIA provides \"[ e] ach public body shall,  promptly,  either comply with or deny a\n\nproperly extended under subsection ( e)  of this Section.\"  Section 3( e)  of FOIA provides that \"[ t] he time for response\nunder this Section may be extended by the public body for not more than 5 business days from the original due date\nfor any of the following reasons[,]\" \n\nand then enumerates those reasons. \n\nagree in writing to extend the time for compliance for a period to be determined by the parties.\" \n\n10Section 3( e)  of FOIA provides that \"[ t] he person making a request and the public body may\n\nMay 6,  2018). \n\nE- mail from\n\nto FOIA Officer,  General Counsel,  City Colleges of Chicago\n\n\fMs.  Karla G< wen\n\nJune 4,  2019\n\nPage 7\n\nany other records pertaining to the meeting.  Consequently,  based on the available information, \nthis office concludes that the City has not demonstrated that it conducted a reasonable search for\nrecords responsive to item three of the request pertaining to the November 30,  2017,  chancellor' s\nfocus group meeting. \n\nAs to the remaining items,  the City Colleges indicated that\n\nit performed\n\nsupplemental searches for responsive records based on the clarifications provided by\n\nin his Request\n\nfor Review.  With regard to item five,  the City Colleges confirmed that\n\nit searched the personnel files of the four individuals named in the request and was unable to\n\na list of vendors authorized to conduct business with the City Colleges and\n\nlocate records related to the training that was discussed in the 2017 Annual Security Report. \nBecause the City' s search of the specified personnel files appears to have been reasonably • \ncalculated to locate any responsive records,  this office concludes that the City Colleges'  response\nto that item did not violate FOIA.  With regard to items four and six,  the City Colleges released\nto\ncopies of job descriptions for the positions within the student services department. \ndid not raise any concerns to this office about\nwith copies.  Because the City Colleges has now provided\nto items four and six,  his allegation that the City Colleges'  initial response to those items was\nincomplete has been resolved.  See Duncan Publishing,  Inc.  v.  City of Chicago,  304 111.  App.  3d\n778,  782 ( 5th Dist.  1999) (\" Once an agency produces all records related to a plaintiffs request, \nthe merits of a plaintiffs claim for relief, in the form of production of information,  becomes\n\nthose records after the City Colleges provided him\nwith records responsive\n\nmoot.\"). \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the City Colleges provide\nresponsive to item two of his request,  subject\n5 ILCS 140/ 7 ( West 2017 Supp.),  as amended by Public Act 100- 732,  effective August 3, \n2018).  This office also requests that the City Colleges perform a supplemental search for any\nrecords pertaining to the November 30,  2017,  chancellor' s focus group meeting.  If the City\nColleges does not locate any responsive records,  the City Colleges should provide\n\nwith copies of the incident reports\nto permissible redactions under section 7 of FOIA\n\nwith a supplemental\n\nresponse describing in detail\n\nits efforts to search for responsive records. \n\n\fMs.  Karla Gowen\n\nJune 4,  2019\n\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53943 f 3d response complete incomplete univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Campus safety incident reports and crime logs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-53943/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJune 4, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Karla Gowen\n\nGeneral Counsel\n\nCity Colleges of Chicago\n226 West Jackson Boulevard\n\nChicago, Illinois 60606\n\nkgowen@ccc. edu\n\nRE: FOIA Request for Review — 2018 PAC 53943\n\nDear\n\nand Ms. Gowen: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the. \nPublic Access Bureau concludes that the City Colleges of Chicago (City Colleges) improperly\nresponded to certain parts of\n\nMay 6, 2018, FOIA request. \n\nOn that date, \n\nsubmitted an eight -item FOIA request to the City\n\nColleges seeking copies of various records pertaining to Wilbur Wright College. In particular, \nthe request sought: \n\n1. \"\n\nRecords detailing the four (4) on -campus stalking crimes\nreported * * * between 2014-2016\"; \n\n2. \" Records detailing all ' Safety and Security Incident Reports' \n\nand ' Daily Crime Log(s)' * * * \n2018 semesters\"; \n\nduring the Fall 2017 and Spring\n\n3. \" Records detailing\" three \" meetings conducted at Wilbur\n\nWright College[,]\" \n\nincluding the \"' Chancellor's Focus Group' \n\nheld * * * \n\non Thursday, November 30` h, 2017\"; \n\n4. \" Records detailing the ' Materials and Supplies', ' Other\n\nExpenditures (i. e. student government...)', \n\nand ' Travel and\n\nConference' spending categories * * * \nSpring 2018 semesters\"; \n\nin the Fall 2017 and\n\n5. \"[\n\nT] he credentials, experience, training, and/ or certification\n\nincluding but not limited to documentation of individual\nexpertise in [ eight specified areas] for those who make\n\ndecisions in disciplinary processes and/ or sit on hearing\ncommittees,\" \nColleges employees; \n\nincluding the credentials of four named City\n\n6. \" A list of positions of employment belonging to the Student\n\nServices department[,]\" \n\nincluding the responsibilities for each\n\nposition; \n\n7. \" Records starting in 2014 detailing assessments about\n\nthe\n\neffectiveness of documented cases of disciplinary sanctions\nimposed on students and employees,\" and; \n\n8. \" Records detailing the organizational structure of City Colleges\nof Chicago and related entities such as the City Colleges of\nChicago Foundation, Student Government Association, or\nWellness Center[.]\" 11I\n\nHaving received no response, \n\nsubmitted another copy of his request\n\nto City Colleges on May 14, 2018. On May 18, 2018, the City Colleges purported to extend its\ntime to respond by five business days pursuant\nto section 3(e) of FOIA (5 ILCS 140/ 3(e) (West\n2016)), even though such an extension notification must be sent within five business days after\n\nreceipt of a request under the plain language of section 3(d) of FOIA (5 ILCS 140/ 3(d) (West\n2016)). 2 On June 8, 2018, the City Colleges provided\nresponsive records, links to records posted on its website, and a written answer to one item of the\n\nwith copies of certain\n\nrequest. As to the remaining items, the City Colleges either asserted that it was unable to locate\nresponsive records or asked\n\nto be more specific or narrow the request. \n\nMay 6, 2018). \n\nE- mail from\n\nto FOIA Officer, General Counsel, City Colleges of Chicago\n\nOn July 9, 2018, this office received\n\nRequest for Review\n\ndisputing the completeness of the City Colleges' response to his request. He alleged, in pertinent\npart, that the response was inadequate in the following ways: \n\nThe response to # 1 does not include daily campus crime\nlogs before Sunday March 26, 2018\"; \nThe response [ to] # 2 [ does] not include all ' Safety and\nSecurity Incident Reports' kept or created for Wilbur\nWright College during the fall 2017 and spring 2018\n\nsemesters\"; \n\nThe response to # 3 does not include any records of the\nChancellor's Focus Group' on Thursday, November 30, \n2017\"; \n\nThe response to # 4 does not include a list of vendors\n\nauthorized to conduct business with [ City Colleges]. \nProcurement Services staff enters approved firms into the\n\nCity Colleges] vendor database\"; \nThe response to #5 does not include credentials, training, \nand or certification for four specified [ City Colleges] \n\nemployees\"; and\n\nThe response to #7 does not list the Dean of Student\n\nServices position, and does not provide a detailed list ofjob\n\nresponsibilities for the positions of employment belonging\nto the Student Services department[.]\"\n\n131\n\nWith regard to item three of his request, \nemail sent to members of the student government about this meeting.\" 4 Addressing item five, he\nclarified that he sought \" all records from complete and official personnel files for these four\n\nprovided this office with a copy of \"an\n\nindividuals, \n\nspecific pages from that report\n\nrelated to training referenced in the 2017 Annual Security Report[,]\" and identified\nthat pertain to safety and security training. 5\n\nGeneral (July 9, 2018). \n\n3E -mail from\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney\n\nGeneral (July 9, 2018). \n\n4E -mail\n\nOn July 17, 2018, this office forwarded a copy of the Request for Review to the\nallegations. This office also\n\nCity Colleges and asked it to respond in writing to\nasked the City Colleges to provide a detailed description of its search for responsive records, \nincluding the recordkeeping systems that were searched and personnel who were consulted. On\nJuly 25, 2018, this office received the City Colleges' written response and additional records\nresponsive to the request\nof the City Colleges' response to\nsought clarification as to whether the additional\n\nhe replied on August 2, 2018. \nresponsive records could be provided to him and\n\nfor this office's review. On July 30, 2018, this office forwarded a copy\n\nquestioned whether the City Colleges could treat his request as unduly burdensome based on the\ntimeliness of its response. On March 6, 2019, the City Colleges provided\ncopies of the additional records with certain redactions; those records consist of a list of vendors\n\nwith\n\nauthorized to conduct business with the City Colleges and copies of job descriptions for positions\nwithin the student services department. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 111. 2d 390, 415 (2006). When presented with a FOIA\nrequest, a public body -is required to conduct a \" reasonable search tailored to the nature of [that] \nparticular request.\" Campbell v. US. Department ofJustice, 164 F. 3d 20, 28 (D. C. Cir. 1998). \nA public body is not required to \" search every record system[,]\" but it \" cannot\nonly one record system if there are others that are likely to turn up the requested information.\" \nOglesby v. US. Department of the Army, 920 F. 2d 57, 68 (D.C. Cir. 1990); but see Yeager v. \nDrug Enforcement Admin., 678 F. 2d 315, 321 (D. C. Cir. 1982) (\" A requester\nis entitled only to\nrecords that an agency has in fact chosen to create and retain.\"). Further, a public body \" has a\nduty to construe a FOIA request\nliberally.\" Nation Magazine v. U.S. Customs Service, 71 F. 3d\n885, 890 (D. C. Cir. 1995). \n\nits search to\n\nlimit\n\nIn its response to this office, the City Colleges asserted that it had provided\nwith copies of records responsive to items one and two of the request. Specifically, the\n\nCity Colleges stated that it had furnished copies of reports pertaining to the four on -campus\ncrimes specified in item one and the daily crime logs requested in item two. With regard to the\nlatter item, the City Colleges asserted that the logs \" have been captured by month on a one- page\ndocument with date of reported crimes clearly delineated[,]\" and list \"over 100 safety and\nsecurity incident\nprovide a set of over 100 individual safety and security reports would be unduly burdensome[,]\" \n\nreports.\" 6 The City Colleges argued, however, that \" No review, redact and\n\nJune 25, 2018). \n\n6 Letter from James M. Reilly, Associate General Counsel, City Colleges of Chicago. to AAG Lim\n\nsought particular incident reports, \" Rhe City Colleges] will\n\nand stated that if\naccommodate his request.\" 7 This office construed the City Colleges as invoking section 3(g) of\nFOIA (5 ILCS 140/ 3(g) (West 2016)) to deny the request as unduly burdensome. Addressing\nitem three, the City Colleges asserted that it had not\nlocated minutes of the chancellor's focus\ngroup meeting held on November 30, 2017, and attributed that answer to the Director of Student\nActivities at Wilbur Wright College, Ms. Kathleen Ordinario. Similarly, addressing item five, \nthe City Colleges asserted that \"[ a] search of the personnel\nfiles for the four individuals cited in\nthe revised request found no records responsive to\" the item; the City Colleges stated that its\nthen -Associate General Counsel, Mr. James M. Reilly, had conducted the search of those\npersonnel\nfiles. As noted above, the City Colleges also provided\nrecords responsive to the remaining disputed items, four and six. \n\nwith copies of\n\nThis office has reviewed the records provided to\n\nThe City\n\nColleges furnished him with a set of crime logs, including daily logs from March 25, 2018. to\nMay 24, 2018, and monthly logs listing the dates and times of reported crimes within those\nmonths for August 2017 to April 2018. The daily logs and monthly logs have the same format; \nthey do not appear to be different types of records, but simply differ as to whether they list\nreported crimes from either one date or one month per page. The City Colleges also provided\nlists aggregating the number of incidents that occurred on campus by type for the fall semester of\n2017 and spring semester of 2018. Thus, although\nCity Colleges did not provide him with copies of daily campus crime logs from before Sunday, \nMarch 26, 2018, in the sense that it did not provide him with a separate log for each day, the City\nColleges appears to have provided him with complete daily crime log information covering the\ntime frame of August 2017 through March 25, 2018. This office has not received information\n\ncorrectly contended that the\n\nindicating that the City Colleges possessed separate daily crime logs for each day during that\ntime period. Accordingly, based on the available information, this office concludes that the\nportion of the City Colleges' response concerning the crime logs did not violate FOIA. \n\nOn the other hand, the records\n\nreasonably described in the second\n\nitem of his request included not just crime logs, but incident reports as well. The language\n\nr] ecords detailing all ' Safety and Security Incident Reports' and ' Daily Crime Log(s)' * * * \n\nduring the Fall 2017 and Spring 2018 semesters\" indicated that he sought both types of records. s\nAlthough the City Colleges argued to this office that providing\nit waived\nresponsive incident reports for the specified time period would be unduly burdensome. \nits ability to rely on that provision to deny his request by failing to respond in a timely manner. 5\n\nwith copies of\n\nJune 25, 2018) \n\nMay 6, 2018). \n\nLetter from James M. Reilly, Associate General Counsel, City Colleges of Chicago, to AAG Lim\n\nILCS 140/ 3(d) (West 2016) (\" A public body that fails to respond to a request within the requisite\nperiods in this Section but thereafter provides the requester with copies of the requested public\n\nfourteen business days later on June 8, 2018. Even assuming that the City\n\nrecords may not impose a fee for such copies. A public body that fails to respond to a request\nreceived may not treat the request as unduly burdensome\"). As discussed above. \nsubmitted his FOIA request to the City Colleges on May 6, 2018, and forwarded another copy of\nhis request\nto the City Colleges on May 14, 2018. On May 18, 2018, the City Colleges purported\nto extend the time to respond by five business days. The City Colleges subsequently responded\nto the request\nColleges did not receive\nrespond to the request within the time periods permitted under sections 3(d) and 3(e) of FOIA. 9\nThis office has not received information indicating that the City Colleges and\nagreed in writing to extend the time for compliance beyond the five business days allowed under\nsection 3(e). 10 Therefore, the City Colleges waived the ability to claim that compliance with the\nportion of the request seeking incident reports would be unduly burdensome. See 111. Att' y Gen. \nPub. Acc. Op. No. 12- 014, issued December\nassert\n\nthat compliance would be unduly burdensome because its response to request was late). \n\nrequest until May 14, 2018, the City Colleges did not\n\n11, 2012, at 11 (school district waived ability to\n\nWith regard to item three, this office has reviewed the copy of the e- mail\nincluded in his Request for Review. The e- mail is from Ms. Ordinario to a group of\n\nthat\n\nstudents regarding their participation in a focus group meeting. The e- mail\nstudents represented various interest groups and constituencies, and that the meeting was\nintended to gather feedback about\nCity Colleges appropriately consulted with Ms. Ordinario with regard to item three, as she sent\nthe e- mail\nrelating to the meeting at issue. The City Colleges did not, however, explain the search that she\nperformed, such as the specific recordkeeping systems that she searched. While the City\nColleges asserted that Ms. Ordinario was unable to locate records of minutes for the November\n\nin question and thus would be reasonably expected to have knowledge of records\n\nthe concerns of the college community. \n\nindicates that the\n\nIn this matter, the\n\n30, 2017, meeting, item three of the request was not limited to minutes. Instead, the item sought\nrecords detailing the meetings\" and asked the City Colleges to \" include minutes for\" the\nmeeting.) The City Colleges did not address whether Ms. Ordinario had performed a search for\n\nrequest\n\nfor public records within 5 business days after\n\nits receipt of the request, unless the time for response is\n\nSection 3(d) of FOIA provides \"[ e] ach public body shall, promptly, either comply with or deny a\n\nproperly extended under subsection (e) of this Section.\" Section 3(e) of FOIA provides that \"[ t] he time for response\nunder this Section may be extended by the public body for not more than 5 business days from the original due date\nfor any of the following reasons[,]\" \n\nand then enumerates those reasons. \n\nagree in writing to extend the time for compliance for a period to be determined by the parties.\" \n\n10 Section 3(e) of FOIA provides that \"[ t] he person making a request and the public body may\n\nany other records pertaining to the meeting. Consequently, based on the available information, \nthis office concludes that the City has not demonstrated that it conducted a reasonable search for\nrecords responsive to item three of the request pertaining to the November 30, 2017, chancellor's\nfocus group meeting. \n\nAs to the remaining items, the City Colleges indicated that\n\nit performed\n\nsupplemental searches for responsive records based on the clarifications provided by\n\nin his Request\n\nfor Review. With regard to item five, the City Colleges confirmed that\n\nit searched the personnel files of the four individuals named in the request and was unable to\n\na list of vendors authorized to conduct business with the City Colleges and\n\nlocate records related to the training that was discussed in the 2017 Annual Security Report. \nBecause the City's search of the specified personnel files appears to have been reasonably • \ncalculated to locate any responsive records, this office concludes that the City Colleges' response\nto that item did not violate FOIA. With regard to items four and six, the City Colleges released\nto\ncopies of job descriptions for the positions within the student services department. \ndid not raise any concerns to this office about\nwith copies. Because the City Colleges has now provided\nto items four and six, his allegation that the City Colleges' initial response to those items was\nincomplete has been resolved. See Duncan Publishing, Inc. v. City of Chicago, 304 111. App. 3d\n778, 782 (5th Dist. 1999) (\" Once an agency produces all records related to a plaintiffs request, \nthe merits of a plaintiffs claim for relief, in the form of production of information, becomes\n\nthose records after the City Colleges provided him\nwith records responsive\n\nmoot.\"). \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the City Colleges provide\nresponsive to item two of his request, subject\n5 ILCS 140/ 7 (West 2017 Supp.), as amended by Public Act 100- 732, effective August 3, \n2018). This office also requests that the City Colleges perform a supplemental search for any\nrecords pertaining to the November 30, 2017, chancellor's focus group meeting. If the City\nColleges does not locate any responsive records, the City Colleges should provide\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n53943 f 3d response complete incomplete univ"}
{"id":920,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-03-01","case_number":null,"request_numbers":["55302"],"title":"Secretary of State FOIA fee for paper copies upheld when requester did not specify electronic format","filename":"55302, issued March 1, 2019.pdf","rel_path":null,"word_count":1354,"summary":"The requester sought records regarding corporate franchise tax refunds and correspondence related to administrative rule amendments, and the PAC determined the Secretary of State's Office violated FOIA by improperly assessing fees for electronic records.","plain_summary":"The requester's FOIA request to the agency sought correspondence, and the agency provided some records for a fee, charging for paper copies of the remainder. When the requester later argued that any electronically maintained records should have been provided electronically at no charge, the PAC determined that a requester must specify a preferred electronic format at the time of the request, and because this requester did not, the agency's fee for paper copies was consistent with FOIA. (Note: the letter's opening paragraph states the response \"violated FOIA,\" which conflicts with this reasoned conclusion and appears to be a drafting error in the original letter.)","holding":"The Illinois Secretary of State's Office's fee for copies of the records did not violate FOIA.","legal_question":"Whether a public body may charge fees for paper copies of records when the requester has specified a preference for electronic records.","disposition":"violation_found","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Secretary of State","requesting_party":null,"pac_outcome":"Violation found regarding fee assessment","pac_law_type":null,"subject_category":"fees","subject_description":"The request involved corporate franchise tax refund records and correspondence regarding administrative rule amendments.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a/55302%2C%20issued%20March%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","electronic records","copying costs","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 1,  2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Donna Leonard\n\nExecutive Counsel\n\nIllinois Secretary of State\n17 North State Street,  Suite 1179\n\nChicago,  Illinois 60602\n\ndleonard@ilsos. net\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 55302\n\nDear\n\nand Ms. Leonard: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2016)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the response by the Illinois Secretary of State ( Secretary of\nState's Office) to\n\nAugust 14,  2018,  FOIA request violated FOIA. \n\nIn a FOIA request on that date, \n\nsought: \n\nRefunds of \"excess fees\" & \" overpayment of fees\"  from\n\nSecretary of State Corporate Franchise Tax Refund Fund\n\npursuant\n\nto 42 Illinois Register 811,  816, &  2078; \n\ncorrespondence\n\nsubmitted from &  received by Secretary of\n\nState Jesse White, Chief of Staff Thomas Benigno,  Executive\nCounsel Donna Leonard,  General Counsel Irene Lyons, \n\nAssistant General Counsel Terrence McConville, &  Business\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Donna Leonard\n\nMarch 1,  2019\n\nPage 2\n\nServices Director Ray Cachares regarding Public Act 100- 0571\nproposed amendments to 14 Illinois Administrative Code\n\n150. 315 &  178. 60; \n\ncorrespondence submitted from &  received by Secretary of\nState &  Joint Committee on Administrative Rules regarding\nPublic Act 100- 0571 &  proposed amendments\nto 14 Illinois\nAdministrative Code 150. 315 &  178. 60. 1'\n\n1\n\nOn August 16,  2018,  the Secretary of State' s Office responded that it had located 99 pages of\nrecords responsive to\n\nrequest and that 50 pages would be provided at no cost, and\n\nthe copy fee for the remaining 49 pages was $ 7. 35.  In a subsequent e- mail later that day,  the\nSecretary of State' s Office explained that it chose to redact certain information from the records, \nbut that it could only perform redactions to paper copies,  and therefore it was charging\n\nfor the cost of printing the records.  On October 15,  2018,  this office received\nRequest for Review in which he challenged the fees charged by the Secretary of State' s\n\nOffice.  He stated that if the Secretary of State' s Office\n\ncurrently maintains any of the responsive documents in an\nelectronic format\",  I respectfully request that the Public Access\nCounselor direct the Secretary of State to disclose those responsive\ndocuments * * *  without fee [ and to]  direct the Secretary of State\nto identify those responsive documents not currently \" maintained\nin an electronic format\"  for which disclosure in an \" electronic\nformat\"  is technologically impossible. 121\n\nOn October 17,  2018,  this office sent a copy of the Request for Review to the\n\nSecretary of State' s Office and asked it to provide a detailed description of its handling of\n\nFOIA request.  This office asked the Secretary of State's Office to clarify the format in\n\nare maintained.  On December 14,  2018,  this office\nwhich the records sought by\nreceived the Secretary of State' s Office' s response.  The same day, this office forwarded that\nresponse to\n\non December 23,  2018,  he replied. \n\nE- mail from\n\nto Donna Leonard ( August 14,  2018). \n\n2E - mail\n\nfrom\n\nto [ Sarah]  Pratt ( October 14,  2018). \n\n\fMs.  Donna Leonard\n\nMarch 1,  2019\n\nPage 3\n\nDETERMINATION\n\nSection 3( b)  of FOIA ( 5 ILCS 140/ 3( b) ( West 2016))  provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\n\npublic body shall promptly provide,  to any person who submits a\nrequest,  a copy of any public record required to be disclosed by\nsubsection ( a)  of this Section and shall certify such copy if so\n\nrequested. \n\nSections 6( a)  and 6( b)  of FOIA (5 ILCS 140/ 6( a), ( b) ( West 2016))  address the applicable fees\nfor copies of electronic and paper records.  Section 6( a)  of FOIA provides: \n\nWhen a person requests a copy of a record maintained in an\n\nelectronic format,  the public body shall furnish it in the\nelectronic format specified by the requester,  if feasible.  If it is\nnot feasible to furnish the public records in the specified electronic\n\nformat,  then the public body shall furnish it in the format in which\nit is maintained by the public body,  or in paper format at the option\nof the requester.  A public body may charge the requester\nactual cost of purchasing the recording medium,  whether disc, \ndiskette, tape,  or other medium. * * * \n\nExcept to the extent that the\n\nfor the\n\nGeneral Assembly expressly provides,  statutory fees applicable to\ncopies of public records when furnished in a paper format shall not\n\nbe applicable to those records when furnished in an electronic\n\nformat. ( Emphasis added.) \n\nSection 6( b)  of FOIA ( 5 ILCS 140/ 6( b) ( West 2016))  provides,  in pertinent part: \n\nExcept when a fee is otherwise fixed by statute,  each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person,  of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\n\nwhite,  letter or legal sized copies requested by a requester. The fee\nfor black and white,  letter or legal sized copies shall not exceed 15\n\ncents per page. \n\n\fMs.  Donna Leonard\nMarch 1,  2019\n\nPage 4\n\nin which he preferred to\nIt was only after being\n\nFOIA request did not specify the format\nreceive records responsive to his request for certain correspondence. \ninformed of the cost of obtaining hard copy versions of the responsive records that\nasserted that he would prefer any records that are maintained electronically to be provided in an\nelectronic format.  The plain language of section 6( a)  of FOIA indicates that a requester must\nspecify his or her preferred format for electronic records at the time that the request is made.  If a\nrequester does not specify that he or she wishes to obtain records in electronic format,  a public\nbody may properly furnish copies of the records in paper format and assess any applicable fee. \nHere,  the Secretary of State' s Office disclosed the first 50 pages of responsive records at no cost\nand the remaining 49 pages at a cost of $0. 15 per page,  which is consistent with section 6( b)  of\nFOIA.  Accordingly,  this office concludes that the Secretary of State' s Office' s fee for copies of\nthe records responsive to\n\nrequest did not violate FOIA.3\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at the Springfield address on the first page of this letter, ( 217) \n524- 7958,  or LHarter@atg. state. il. us. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n55302. f 6b fees proper sa\n\n3This office notes that if\n\nhad requested records in an electronic format,  section 6( a)  of\n\nFOIA permits the Secretary of State' s Office to charge only the \" actual cost of purchasing the recording medium, \nwhether disc,  diskette,  tape,  or other medium\"  used to record and provide the responsive records.  The Public Access\nBureau has previously determined that when a requester specifies that he or she is seeking electronic copies of\nrecords that a public body maintains in electronic format,  the public body may not assess fees for paper copies\nbecause it must print out the records in order to redact them.  III.  Att'y Gen.  PAC Req.  Rev.  Ltr. 54494,  issued\nJanuary 23,  2019,  at 4. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the Illinois Secretary of State's office for records about refunds of 'excess fees' and 'overpayment of fees' from the Corporate Franchise Tax Refund Fund, and for correspondence regarding Public Act 100-0571 and proposed amendments to administrative rules. The office found 99 pages and provided 50 at no cost, charging $7.35 for the remaining 49. The requester later challenged the fee, asking that if any records were kept electronically, they be provided in that format without charge. The Public Access Bureau ruled that the fee did not violate FOIA because the requester did not request an electronic format when making the original request, so the office's charge was allowed under FOIA's fee rules.","card_headline":"Corporate franchise tax refund records and rule-amendment correspondence","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55302/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 1, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Donna Leonard\n\nExecutive Counsel\n\nIllinois Secretary of State\n17 North State Street, Suite 1179\n\nChicago, Illinois 60602\n\ndleonard@ilsos. net\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 55302\n\nDear\n\nand Ms. Leonard: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Illinois Secretary of State (Secretary of\nState's Office) to\n\nAugust 14, 2018, FOIA request violated FOIA. \n\nIn a FOIA request on that date, \n\nsought: \n\nRefunds of \"excess fees\" & \" overpayment of fees\" from\n\nSecretary of State Corporate Franchise Tax Refund Fund\n\npursuant\n\nto 42 Illinois Register 811, 816, & 2078; \n\ncorrespondence\n\nsubmitted from & received by Secretary of\n\nState Jesse White, Chief of Staff Thomas Benigno, Executive\nCounsel Donna Leonard, General Counsel Irene Lyons, \n\nAssistant General Counsel Terrence McConville, & Business\n\nServices Director Ray Cachares regarding Public Act 100- 0571\nproposed amendments to 14 Illinois Administrative Code\n\n150. 315 & 178. 60; \n\ncorrespondence submitted from & received by Secretary of\nState & Joint Committee on Administrative Rules regarding\nPublic Act 100- 0571 & proposed amendments\nto 14 Illinois\nAdministrative Code 150. 315 & 178. 60. 1'\n\n1\n\nOn August 16, 2018, the Secretary of State's Office responded that it had located 99 pages of\nrecords responsive to\n\nrequest and that 50 pages would be provided at no cost, and\n\nthe copy fee for the remaining 49 pages was $ 7. 35. In a subsequent e- mail later that day, the\nSecretary of State's Office explained that it chose to redact certain information from the records, \nbut that it could only perform redactions to paper copies, and therefore it was charging\n\nfor the cost of printing the records. On October 15, 2018, this office received\nRequest for Review in which he challenged the fees charged by the Secretary of State's\n\nOffice. He stated that if the Secretary of State's Office\n\ncurrently maintains any of the responsive documents in an\nelectronic format\", I respectfully request that the Public Access\nCounselor direct the Secretary of State to disclose those responsive\ndocuments * * * without fee [ and to] direct the Secretary of State\nto identify those responsive documents not currently \" maintained\nin an electronic format\" for which disclosure in an \" electronic\nformat\" is technologically impossible. 121\n\nOn October 17, 2018, this office sent a copy of the Request for Review to the\n\nSecretary of State's Office and asked it to provide a detailed description of its handling of\n\nFOIA request. This office asked the Secretary of State's Office to clarify the format in\n\nare maintained. On December 14, 2018, this office\nwhich the records sought by\nreceived the Secretary of State's Office's response. The same day, this office forwarded that\nresponse to\n\non December 23, 2018, he replied. \n\nDETERMINATION\n\nSection 3(b) of FOIA (5 ILCS 140/ 3(b) (West 2016)) provides: \n\nSubject to the fee provisions of Section 6 of this Act, each\n\npublic body shall promptly provide, to any person who submits a\nrequest, a copy of any public record required to be disclosed by\nsubsection (a) of this Section and shall certify such copy if so\n\nrequested. \n\nSections 6(a) and 6(b) of FOIA (5 ILCS 140/ 6(a), (b) (West 2016)) address the applicable fees\nfor copies of electronic and paper records. Section 6(a) of FOIA provides: \n\nWhen a person requests a copy of a record maintained in an\n\nelectronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is\nnot feasible to furnish the public records in the specified electronic\n\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. A public body may charge the requester\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. * * * \n\nExcept to the extent that the\n\nfor the\n\nGeneral Assembly expressly provides, statutory fees applicable to\ncopies of public records when furnished in a paper format shall not\n\nbe applicable to those records when furnished in an electronic\n\nformat. (Emphasis added.) \n\nSection 6(b) of FOIA (5 ILCS 140/ 6(b) (West 2016)) provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \n\nin which he preferred to\nIt was only after being\n\nFOIA request did not specify the format\nreceive records responsive to his request for certain correspondence. \ninformed of the cost of obtaining hard copy versions of the responsive records that\nasserted that he would prefer any records that are maintained electronically to be provided in an\nelectronic format. The plain language of section 6(a) of FOIA indicates that a requester must\nspecify his or her preferred format for electronic records at the time that the request is made. If a\nrequester does not specify that he or she wishes to obtain records in electronic format, a public\nbody may properly furnish copies of the records in paper format and assess any applicable fee. \nHere, the Secretary of State's Office disclosed the first 50 pages of responsive records at no cost\nand the remaining 49 pages at a cost of $0. 15 per page, which is consistent with section 6(b) of\nFOIA. Accordingly, this office concludes that the Secretary of State's Office's fee for copies of\nthe records responsive to\n\nrequest did not violate FOIA.3\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter, (217) \n524- 7958, or LHarter@atg. state. il. us. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n55302. f 6b fees proper sa\n\n3 This office notes that if\n\nhad requested records in an electronic format, section 6(a) of\n\nFOIA permits the Secretary of State's Office to charge only the \" actual cost of purchasing the recording medium, \nwhether disc, diskette, tape, or other medium\" used to record and provide the responsive records. The Public Access\nBureau has previously determined that when a requester specifies that he or she is seeking electronic copies of\nrecords that a public body maintains in electronic format, the public body may not assess fees for paper copies\nbecause it must print out the records in order to redact them. III. Att'y Gen. PAC Req. Rev. Ltr. 54494, issued\nJanuary 23, 2019, at 4."}
{"id":921,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-12-23","case_number":null,"request_numbers":["55627"],"title":"Algonquin Township failed to conduct reasonable search for meeting recordings","filename":"55627, issued December 23, 2021.pdf","rel_path":null,"word_count":1371,"summary":"The requester sought audio and video recordings of a Township board meeting, but the PAC determined the Township failed to demonstrate it conducted a reasonable search for all responsive records.","plain_summary":"A citizen requested recordings of a Township meeting, but the Township only provided a link to a website and failed to confirm if other recordings existed. The Attorney General's office found the Township's search was inadequate and ordered them to conduct a proper search and provide a detailed explanation of their efforts. This means the Township must now prove they looked everywhere, including the Supervisor's personal files, for the requested recordings.","holding":"The Township failed to perform a reasonable search for responsive records because it did not address whether the Supervisor possessed additional recordings.","legal_question":"Did the public body conduct a reasonable search for records responsive to a FOIA request as required by section 3 of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Algonquin Township","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought audio and video recordings of a special meeting of the Township Board of Trustees.","ocr_status":"ok","ocr_quality":91.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/8.5/8.5_a/55627%2C%20issued%20December%2023%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","meeting recordings","FOIA request","Township records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 23, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Randy Funk\nAlgonquin Township Supervisor\nAlgonquin Township\n3702 U.S. Highway 14\nCrystal Lake,  Illinois 60014\nrfunk@algonquintownship.com\n\nRE:  FOIA Request for Review – 2018 PAC 55627\n\nDear\n\nand Mr. Funk: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow,  the\nPublic Access Bureau concludes that Algonquin Township (Township) responded improperly to\na portion of\n\ns October 20,  2018,  FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Township seeking,  in\n\nrelevant part, copies of audio and video recordings from the October 19, 2018, special meeting of\nthe Township Board of Trustees ( Board).   On October 31, 2018,  the Township informed\n\nthat he could download the meeting recording on its website, but that it did not possess\n\naudio or video recordings from after the closed session.   On November 1, 2018,  this office\nreceived\nRequest for Review claiming that the recording of the meeting is not\navailable on the Township's website because the link on the website goes to YouTube.  \n\nalso questioned whether the Township possesses a full recording of the meeting that was\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fThe Honorable Randy Funk\nDecember 23, 2021\nPage 2\n\nmade by the Township Supervisor, as he alleged that the Township Supervisor had previously\nmade his own recordings of Board meetings in addition to the Township Clerk' s recordings. \n\nOn November 13,  2018,  this office sent a copy of the Request for Review to the\n\nTownship and asked it to provide a detailed description of its search for responsive records, \nincluding the specific recordkeeping systems searched,  how they were searched,  and the specific\nindividuals who were consulted.  This office specifically asked the Township to respond to\nallegation that the Township possesses a recording of the October 19, 2018,  special\n\nmeeting that was made by the Township Supervisor.   \n\nOn November 19, 2018, the Township provided this office with its written\n\nresponse.   On November 21,  2018,  this office forwarded a copy of the Township' s response to\n\nhe replied later that afternoon.  In his reply, \n\nargued that Township failed to\n\naddress any \" search for the recording typically made by the Supervisor[.]\" 1\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/1.2 (West 2020).   \n\nSection 8.5 of FOIA\n\nSection 8.5(a) of FOIA (5 ILCS 140/8.5(a) ( West 2020)) provides that \"a public\nbody is not required to copy a public record that is published on the public body' s website.   The\npublic body shall notify the requester that the public record is available online and direct the\nrequester to the website where the record can be reasonably accessed.\"   Section 8.5(b) of FOIA\n5 ILCS 140/8.5(b) (West 2020)) further provides: \n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant to subsection ( a)  of this Section,  the requester\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online,  and the public\nbody shall make the requested record available for inspection and\ncopying as provided in Section 3 of this Act. \n\n1E- mail from\n\nto [Jodi Carnes] ( November 21, 2018). \n\n\fThe Honorable Randy Funk\nDecember 23, 2021\nPage 3\n\nIn its response to this office, the Township described the process of how to access\nthe recording of its October 19, 2018,  special meeting from the Township' s website:  a link on the\nwebsite led directly to a recording of the meeting on YouTube.2 Although\nargued that\nYouTube is not the Township' s website,  he did not claim that he was unable to reasonably access\nthe recording from the link on the Township's website.  It would be unreasonable to construe\nFOIA as requiring a public body to embed a video on its website in order to rely on section\n8.5(a), rather than allowing a website link directly to a video hosting service such as YouTube.  \nIt is always presumed that the legislature did not intend to cause absurd,  inconvenient,  or unjust\nresults.\"  People v. Garcia, 241 Ill. 2d 416, 421 (2011).  Accordingly, this office concludes that\nthe Township properly directed Mr. Allen to the link on its website pursuant\nto section 8.5(a)  of\nFOIA.  \n\nSearch for Records\n\nThe requirements of FOIA apply to records \"having been prepared by or for, or\n\nhaving been or being used by, received by, in the possession of, or under the control of any\npublic body.\"  5 ILCS 140/2(c) (West 2020).  A public body must conduct a reasonable search\nfor records responsive to a FOIA request.   Better Government Ass' n v. City of Chicago,  2020 IL\nApp (1st) 190038, ¶31, __ N.E.3d __ (2020).  \"Although a public body is not required to perform\nan exhaustive search of every possible location, the body must construe FOIA requests liberally\nand search those places that are ' reasonably likely to contain responsive records.'\"   Better\nGovernment Ass'n, 2020 IL App (1st) 190038, ¶31, __ N.E.3d __ (2020) (quoting Judicial\nWatch,  Inc. v. U.S.  Dep' t of Justice,  373 F. Supp.  3d 120,  126 ( D.D.C. 2019)).  \" At all times the\nburden is on the [public body] to establish the adequacy of its search.\"   Rugiero v. U.S. Dep't of\nJustice,  257 F.3d 534,  547 ( 6th Cir. 2001).   However, \"[ a]  requester is entitled only to records\nthat an agency has in fact chosen to create and retain.\"  Yeager v. Drug Enforcement\nAdministration,  678 F.2d 315,  321 ( D.C. Cir. 1982). \n\nIn the Township' s response to this office,  the Township' s attorney addressed only\n\nthe video recording on the Township's website, explaining that \"[ t]he video ended after [the] \nBoard went into closed session.   The internet connection was lost and there was no video for the\nremainder of the meeting.\" 3\n\nDespite this office's unambiguous request for a written explanation of how the\n\nTownship searched for responsive recordings,  the Township provided this office with no\n\n2018), https://www.youtube.com/watch?v=1JNskmFiPc0.  \n\n2Algtownship Clerk, Algonquin Township Special Board Meeting 10/19/2018, YouTube (Oct. 19, \n\nGeneral, Public Access Bureau (November 19, 2018). \n\n3Letter from James P. Kelly, Matuszewich &  Kelly, LLP, to Leo Draws, Assistant Attorney\n\n\fThe Honorable Randy Funk\nDecember 23, 2021\nPage 4\n\ninformation in that regard.  In particular, the Township did not address whether it consulted with\nallegation that the\nthe Supervisor,  despite this office' s request that it respond to\nSupervisor may have made an additional recording of the special meeting based on his past\npractice.   Because the Township did not provide this office with any explanation of how it\nsearched for recordings responsive to\nconclude that the Township performed a reasonable search.   This office asks the Township to\nconduct a search that includes any recordings made by the Supervisor and issue a supplemental\nresponse to\nno records are located, the Township should provide\nmeasures that were taken to search for records.       \n\nthat fully complies with section 9 of FOIA ( 5 ILCS 140/ 9 (West 2020)).   If\nwith a detailed description of the\n\nrequest, the Public Access Bureau is unable to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this file.  Please contact\nme at c.lucentemccullough@ilag. gov or the Chicago address on the first page of this letter if you\nhave any questions. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n55627 f 3a search improper 85 online proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Audio and video recordings of a special board meeting","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55627/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 23, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nThe Honorable Randy Funk\nAlgonquin Township Supervisor\nAlgonquin Township\n3702 U.S. Highway 14\nCrystal Lake, Illinois 60014\nrfunk@algonquintownship.com\n\nRE: FOIA Request for Review – 2018 PAC 55627\n\nDear\n\nand Mr. Funk: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that Algonquin Township (Township) responded improperly to\na portion of\n\ns October 20, 2018, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Township seeking, in\n\nrelevant part, copies of audio and video recordings from the October 19, 2018, special meeting of\nthe Township Board of Trustees (Board). On October 31, 2018, the Township informed\n\nthat he could download the meeting recording on its website, but that it did not possess\n\naudio or video recordings from after the closed session. On November 1, 2018, this office\nreceived\nRequest for Review claiming that the recording of the meeting is not\navailable on the Township's website because the link on the website goes to YouTube. \n\nalso questioned whether the Township possesses a full recording of the meeting that was\n\nmade by the Township Supervisor, as he alleged that the Township Supervisor had previously\nmade his own recordings of Board meetings in addition to the Township Clerk's recordings. \n\nOn November 13, 2018, this office sent a copy of the Request for Review to the\n\nTownship and asked it to provide a detailed description of its search for responsive records, \nincluding the specific recordkeeping systems searched, how they were searched, and the specific\nindividuals who were consulted. This office specifically asked the Township to respond to\nallegation that the Township possesses a recording of the October 19, 2018, special\n\nmeeting that was made by the Township Supervisor. \n\nOn November 19, 2018, the Township provided this office with its written\n\nresponse. On November 21, 2018, this office forwarded a copy of the Township's response to\n\nhe replied later that afternoon. In his reply, \n\nargued that Township failed to\n\naddress any \" search for the recording typically made by the Supervisor[.]\" 1\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). \n\nSection 8.5 of FOIA\n\nSection 8.5(a) of FOIA (5 ILCS 140/8.5(a) (West 2020)) provides that \"a public\nbody is not required to copy a public record that is published on the public body's website. The\npublic body shall notify the requester that the public record is available online and direct the\nrequester to the website where the record can be reasonably accessed.\" Section 8.5(b) of FOIA\n5 ILCS 140/8.5(b) (West 2020)) further provides: \n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant to subsection (a) of this Section, the requester\nmay resubmit his or her request for the record stating his or her\n\nIn its response to this office, the Township described the process of how to access\nthe recording of its October 19, 2018, special meeting from the Township's website: a link on the\nwebsite led directly to a recording of the meeting on YouTube.2 Although\nargued that\nYouTube is not the Township's website, he did not claim that he was unable to reasonably access\nthe recording from the link on the Township's website. It would be unreasonable to construe\nFOIA as requiring a public body to embed a video on its website in order to rely on section\n8.5(a), rather than allowing a website link directly to a video hosting service such as YouTube. \nIt is always presumed that the legislature did not intend to cause absurd, inconvenient, or unjust\nresults.\" People v. Garcia, 241 Ill. 2d 416, 421 (2011). Accordingly, this office concludes that\nthe Township properly directed Mr. Allen to the link on its website pursuant\nto section 8.5(a) of\nFOIA. \n\nSearch for Records\n\nThe requirements of FOIA apply to records \"having been prepared by or for, or\n\nhaving been or being used by, received by, in the possession of, or under the control of any\npublic body.\" 5 ILCS 140/2(c) (West 2020). A public body must conduct a reasonable search\nfor records responsive to a FOIA request. Better Government Ass' n v. City of Chicago, 2020 IL\nApp (1st) 190038, ¶31, __ N.E.3d __ (2020). \"Although a public body is not required to perform\nan exhaustive search of every possible location, the body must construe FOIA requests liberally\nand search those places that are ' reasonably likely to contain responsive records.'\" Better\nGovernment Ass'n, 2020 IL App (1st) 190038, ¶31, __ N.E.3d __ (2020) (quoting Judicial\nWatch, Inc. v. U.S. Dep' t of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019)). \" At all times the\nburden is on the [public body] to establish the adequacy of its search.\" Rugiero v. U.S. Dep't of\nJustice, 257 F.3d 534, 547 (6th Cir. 2001). However, \"[ a] requester is entitled only to records\nthat an agency has in fact chosen to create and retain.\" Yeager v. Drug Enforcement\nAdministration, 678 F.2d 315, 321 (D.C. Cir. 1982). \n\nIn the Township's response to this office, the Township's attorney addressed only\n\nthe video recording on the Township's website, explaining that \"[ t]he video ended after [the] \nBoard went into closed session. The internet connection was lost and there was no video for the\nremainder of the meeting.\" 3\n\nDespite this office's unambiguous request for a written explanation of how the\n\nTownship searched for responsive recordings, the Township provided this office with no\n\n2018), https://www.youtube.com/watch?v=1JNskmFiPc0. \n\n2 Algtownship Clerk, Algonquin Township Special Board Meeting 10/19/2018, YouTube (Oct. 19, \n\ninformation in that regard. In particular, the Township did not address whether it consulted with\nallegation that the\nthe Supervisor, despite this office's request that it respond to\nSupervisor may have made an additional recording of the special meeting based on his past\npractice. Because the Township did not provide this office with any explanation of how it\nsearched for recordings responsive to\nconclude that the Township performed a reasonable search. This office asks the Township to\nconduct a search that includes any recordings made by the Supervisor and issue a supplemental\nresponse to\nno records are located, the Township should provide\nmeasures that were taken to search for records. \n\nthat fully complies with section 9 of FOIA (5 ILCS 140/ 9 (West 2020)). If\nwith a detailed description of the\n\nrequest, the Public Access Bureau is unable to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at c.lucentemccullough@ilag. gov or the Chicago address on the first page of this letter if you\nhave any questions. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n55627 f 3a search improper 85 online proper mun"}
{"id":922,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2018-12-03","case_number":null,"request_numbers":["55719","55720"],"title":"Will County Sheriff's Office did not violate FOIA by denying fee waiver to indigent requester","filename":"55719 55720, issued December 3, 2018.pdf","rel_path":null,"word_count":570,"summary":"The requester challenged the Will County Sheriff's Office's refusal to waive copying fees for medical and classification records, claiming indigency. The PAC determined that under FOIA, fee waivers are discretionary and the per-page fee charged was statutorily authorized.","plain_summary":"A requester asked for copies of their own medical and classification records from the Will County Sheriff's Office and requested that the copying fees be waived due to financial hardship. The Attorney General's office found that while FOIA allows for free copies of the first 50 pages, public bodies have the legal choice to decide whether to waive fees for additional pages. Because the Sheriff's Office followed the law regarding standard fees and was not required to grant a waiver, the PAC closed the case.","holding":"The Sheriff's Office did not violate FOIA by denying a fee waiver, as the statute grants public bodies the discretion to waive or reduce fees.","legal_question":"Does a public body have a mandatory duty under FOIA to waive copying fees for an indigent requester?","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Will County Sheriff's Office","requesting_party":"Ms. [Name Redacted]","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought a waiver of copying fees for medical and classification records based on a claim of indigency.","ocr_status":"ok","ocr_quality":98.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_c/55719%2055720%2C%20issued%20December%203%2C%202018.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","fee waiver","indigency","copying costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 3,  2018\n\nRE:  FOIA Request\n\nfor Review — 2018 PAC 55719 and 55720\n\nDear Ms. \n\nThis determination letter is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2014)).  For the reasons that follow,  the\nPublic Access Bureau concludes that no further action is warranted on these matters. \n\nOn October 27,  2018,  you submitted a FOIA request to the Will County Adult\n\nDetention Facility ( Detention Facility),  which is part of the Will County Sheriffs Office\nSheriffs Office),  seeking copies of medical records and certain other information.  On October\n30,  2018,  the Sheriffs Office responded by providing free copies of fifty pages of records and\nstating that the fee for the remaining 103 pages is $ 15. 45,  or fifteen cents per page.  Your\nfor Review ( 2018 PAC 55719)  asserted that you are indigent and entitled to a fee\nRequest\n\nwaiver. \n\nOn November 2,  2018,  you submitted another FOIA request to the Detention\n\nFacility seeking your classification record.  On November 7,  2018,  the Sheriffs Office provided\nfree copies of fifty pages of records and stated that the fee for the remaining 121 pages is $ 18. 15, \nor fifteen cents per page.  You Request\nare entitled to a fee waiver. \n\nfor Review ( 2018 PAC 55720)  again asserted that you\n\nSection 6( b)  of FOIA ( 5 ILCS 140/ 6( b) ( West 2016))  provides: \" No fees shall be\n\ncharged for the first 50 pages of black and white,  letter or legal sized copies requested by a\nrequester.  The fee for black and white,  letter or legal sized copies shall not exceed 15 cents per\n\npage.\"  Section 6( c)  of FOIA ( 5 ILCS 140/ 6( c) ( West 2016))  further provides that \"[ d] ocuments\nshall be furnished without charge or at a reduced charge,  as determined by the public body,  if the\nperson requesting the documents states the specific purpose for the request and indicates that a\nwaiver or reduction of the fee is in the public interest.\" ( Emphasis added).  Thus,  under the plain\n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 •  TTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fDecember 3,  2018\n\nPage 2\n\nlanguage of section 6( c)  of FOIA,  a public body has the discretion to decide whether to waive or\nreduce copying fees.  Because FOIA does not require the Sheriffs Office to grant the fee waivers\nyou requested and because its fee of. 15 cents per page is authorized by section 6( b)  of FOIA,  this\noffice concludes that no further action is warranted as to these matters. \n\nChicago address listed on the bottom of the first page. \n\nThese files are closed.  If you have any questions,  you may contact me at the\n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n55719 55720 f no fi war county\n\ncc: \n\nMs.  Christine Miller\n\nFOIA Officer\nWill County Sheriffs Office\n95 South Chicago Street\n\nJoliet,  Illinois 60436\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A fee waiver request for medical and classification records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-55719/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nLisa Madigan\n\nATTORNEY GENERAL\n\nDecember 3, 2018\n\nRE: FOIA Request\n\nfor Review — 2018 PAC 55719 and 55720\n\nDear Ms. \n\nThis determination letter is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2014)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action is warranted on these matters. \n\nOn October 27, 2018, you submitted a FOIA request to the Will County Adult\n\nDetention Facility (Detention Facility), which is part of the Will County Sheriffs Office\nSheriffs Office), seeking copies of medical records and certain other information. On October\n30, 2018, the Sheriffs Office responded by providing free copies of fifty pages of records and\nstating that the fee for the remaining 103 pages is $ 15. 45, or fifteen cents per page. Your\nfor Review (2018 PAC 55719) asserted that you are indigent and entitled to a fee\nRequest\n\nwaiver. \n\nOn November 2, 2018, you submitted another FOIA request to the Detention\n\nFacility seeking your classification record. On November 7, 2018, the Sheriffs Office provided\nfree copies of fifty pages of records and stated that the fee for the remaining 121 pages is $ 18. 15, \nor fifteen cents per page. You Request\nare entitled to a fee waiver. \n\nfor Review (2018 PAC 55720) again asserted that you\n\nSection 6(b) of FOIA (5 ILCS 140/ 6(b) (West 2016)) provides: \" No fees shall be\n\ncharged for the first 50 pages of black and white, letter or legal sized copies requested by a\nrequester. The fee for black and white, letter or legal sized copies shall not exceed 15 cents per\n\npage.\" Section 6(c) of FOIA (5 ILCS 140/ 6(c) (West 2016)) further provides that \"[ d] ocuments\nshall be furnished without charge or at a reduced charge, as determined by the public body, if the\nperson requesting the documents states the specific purpose for the request and indicates that a\nwaiver or reduction of the fee is in the public interest.\" (Emphasis added). Thus, under the plain\n\nlanguage of section 6(c) of FOIA, a public body has the discretion to decide whether to waive or\nreduce copying fees. Because FOIA does not require the Sheriffs Office to grant the fee waivers\nyou requested and because its fee of. 15 cents per page is authorized by section 6(b) of FOIA, this\noffice concludes that no further action is warranted as to these matters. \n\nChicago address listed on the bottom of the first page. \n\nThese files are closed. If you have any questions, you may contact me at the\n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n55719 55720 f no fi war county\n\ncc: \n\nMs. Christine Miller\n\nFOIA Officer\nWill County Sheriffs Office\n95 South Chicago Street\n\nJoliet, Illinois 60436"}
{"id":923,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-02-28","case_number":null,"request_numbers":["56109"],"title":"IDOT improperly withheld harassment letter under FOIA 7(1)(d) enforcement proceeding exemptions","filename":"56109, issued February 28, 2022.pdf","rel_path":null,"word_count":1252,"summary":"The requester sought a letter sent by the IDOT Director to a transit district board regarding workplace harassment allegations, which IDOT denied under FOIA exemptions for administrative enforcement proceedings. The PAC determined that the letter was not part of an administrative enforcement proceeding and ordered its disclosure.","plain_summary":"A citizen requested a letter from the Illinois Department of Transportation (IDOT) regarding workplace harassment allegations. IDOT refused to release the letter, claiming it was part of an ongoing legal or enforcement process. The Attorney General's office reviewed the request and decided that the letter was not part of an enforcement proceeding, meaning IDOT must release it to the requester.","holding":"The Illinois Department of Transportation improperly withheld the requested letter because it did not qualify for the exemptions related to administrative enforcement proceedings.","legal_question":"Whether a letter concerning workplace harassment allegations sent by an agency director to a transit board is exempt from disclosure under FOIA sections 7(1)(d)(ii), (iii), or (iv) as part of an administrative enforcement proceeding.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(ii)","7(1)(d)(iii)","7(1)(d)(iv)"],"public_body":"Illinois Department of Transportation","requesting_party":"Mr. [Name Redacted]","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought a letter from the IDOT Director to a transit district board concerning allegations of workplace harassment or discrimination.","ocr_status":"ok","ocr_quality":93.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_ii/56109%2C%20issued%20February%2028%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["workplace harassment","IDOT","enforcement proceedings","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 28,  2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Barb Smith\nFOIA Officer\nIllinois Department of Transportation\nOffice of the Chief Counsel,  Room 317\n2300 South Dirksen Parkway\nSpringfield,  Illinois 62765\nbarbara.j.smith2@illinois.gov\n\nRE:  FOIA Request for Review – 2018 PAC 56109; IDOT FOIA No.: 18-0818\n\nDear\n\nand Ms. Smith: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn December 14,  2018,  the Public Access Bureau received a Request for Review\nchallenging the response by the Illinois Department of Transportation\n\nfrom\nIDOT)  to his October 25, 2018,  FOIA request.  \nrecords provided to IDOT's then-Director, Beth McCluskey, concerning alleged workplace\nharassment or discrimination within the South Central Illinois Mass Transit District ( Transit\nDistrict).  In his FOIA request, \nMcCluskey to send a letter,  dated October 12, 2018,  to members of the Transit District' s Board\nof Trustees (Board).  \nIDOT denied the request pursuant to sections 7(1)(d)(iii) and 7(1)(d)(iv) of FOIA (5 ILCS\n140/ 7(1)( d)( iii), (1)( d)( iv) (West 2018)),  stating the requested information \" consists of a\n\nstated that the harassment allegation prompted Ms. \n\nwas a member of the Board at the time.  On October 30, 2018, \n\nrequest sought copies of certain\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Barb Smith\nFebruary 28, 2022\nPage 2\n\ncomplaint related to a public body that is in the process of investigation.\" 1 On December 18, \n2018,  this office requested that IDOT provide un- redacted copies of the withheld records for this\noffice's confidential review, together with a detailed legal and factual explanation of its basis for\nasserting the above- referenced exemptions.   On December 28,  2018,  IDOT provided those\nmaterials.  In its written answer, IDOT asserted the withheld record was also exempt under\nsection 7(1)( d)( ii) of FOIA 5 ILCS 140/ 7(1)( d)( ii) (West 2018)).   On January 6, 2019, \n\nreplied, maintaining that IDOT improperly denied his request and that no investigation\n\nwas being conducted. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"  5 ILCS 140/1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Department of Public Health,  218 Ill. 2d 390,  415 ( 2006).   Any public body\nthat denies a record \"has the burden of proving by clear and convincing evidence\" that the record\nis exempt from disclosure.   5 ILCS 140/ 1.2 (West 2018).   The exemptions from disclosure are to\nbe narrowly construed.  Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d\nthe public body must provide a detailed justification\n401,  407 ( 1997). \" To meet its burden * * *, \nfor its claim of exemption, addressing the requested records specifically and in a manner\nallowing for adequate adversarial\nMorrissey, 398 Ill. App. 3d 145, 150 (2nd Dist. 2010).  Bare assertions without a detailed\nrationale do not satisfy a public body's burden of explaining how exemptions are applicable.  See\nRockford Police Benevolent &  Protective Ass' n, 398 Ill. App.  3d at 151 ( citing Illinois Education\nAss'n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003)). \n\ntesting.\"   Rockford Police Benevolent &  Protective Ass' n v. \n\nSections 7(1)(d)(ii), 7(1)(d)(iii), and 7(1)(d)(iv) of FOIA exempt from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings,  and any\nlaw enforcement or correctional agency for law enforcement\npurposes,  but only to the extent that disclosure would:  \n\nii) interfere with active administrative enforcement\n\nproceedings conducted by the public body that is the\nrecipient of the request\n\niii) create a substantial likelihood that a person will\n\nbe deprived of a fair trial or impartial hearing; [ or] \n\n1E- mail from Barb Smith, FOIA Officer, Illinois Department of Transportation, to\n\nOctober 30, 2018).   \n\n\fMs. Barb Smith\nFebruary 28, 2022\nPage 3\n\niv) unavoidably disclose the identity of a\n\nconfidential source,  confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative,  investigative, \nlaw enforcement, or penal agencies[.] ( Emphasis added.) \n\ninformation furnished only\n\nIn construing a statute, the primary objective is to ascertain and give effect to the\nintent of the General Assembly.   Southern Illinoisan v. Illinois Department of Public Health,  218\nIll. 2d 390, 415 (2006).  \"[ T]he surest and most reliable indicator of\" legislative intent \"is the\nstatutory language itself,  given its plain and ordinary meaning.\"   Board of Education of\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶24, 77\nN.E.3d 625,  630 ( 2017).   \n\nIDOT' s response to this office stated that it was conducting an ongoing\n\ninvestigation into the allegations in the letter that\nreceived media inquiries related to the underlying workplace allegations,  and that IDOT' s\nattorney advised it to withhold the responsive record \"due to the sensitive nature of the requests\" \nand asserted that the release of the letter could \" potentially cause detrimental outcomes to the\naccuser and/or the accused.\" 2\n\nsought.  IDOT also stated it had\n\nThe plain language of section 7(1)( d) provides that records fall within the scope\n\nof this provision, under certain circumstances, when the public body maintaining the records is a\nlaw enforcement agency or, for other types of public bodies,  when the records were created\nduring the course of an administrative enforcement proceeding.     \n\nWith respect to the first prerequisite, IDOT is not a \" law enforcement\" agency\n\nwithin the context of section 7(1)( d) of FOIA.   Instead,  IDOT is tasked with,  among other things, \nthe responsibility for the planning, funding, construction, operation, and maintenance of Illinois' \ntransportation network.   See 20 ILCS 2705/ 2705- 10 ( West 2020).   Therefore,  IDOT has not\nestablished that the responsive record is possessed by a law enforcement agency for law\nenforcement purposes.   \n\nFurther,  based on this office' s confidential\n\nreview,  the record in question was not\n\ncreated in the course of an administrative enforcement proceeding.  Even assuming IDOT's\nassertion that conducting an investigation into the underlying workplace allegations could be\nconstrued as an administrative enforcement proceeding, the scope of section 7(1)(d) is limited to\nrecords generated during the proceedings;  it does not encompass records such as the underlying\n\nBarnaby (December 28, 2018).   \n\n2E- mail from Barb Smith, FOIA Officer, Illinois Department of Transportation, to [Shannon] \n\n\fMs. Barb Smith\nFebruary 28, 2022\nPage 4\n\nrequest sought records that may have initiated IDOT' s investigation, \n\ncomplaints that were created before the commencement of administrative enforcement\nproceedings.  \nnot any records that may have been generated during that investigation.  Therefore, this office\nconcludes that IDOT has not sustained its burden of demonstrating that the responsive letter is\nexempt from disclosure pursuant to sections 7(1)(d)(ii), 7(1)(d)(iii), or 7(1)(d)(iv) of FOIA.  \nAccordingly,  this office requests that IDOT provide\nwith a copy of the responsive\nletter.  \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   If you have any questions,  my\ne-mail address is Shannon.Barnaby@ilag.gov. \n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56109 71dii improper 71diii improper 71div improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A letter about workplace harassment allegations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56109/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 28, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Barb Smith\nFOIA Officer\nIllinois Department of Transportation\nOffice of the Chief Counsel, Room 317\n2300 South Dirksen Parkway\nSpringfield, Illinois 62765\nbarbara.j.smith2@illinois.gov\n\nRE: FOIA Request for Review – 2018 PAC 56109; IDOT FOIA No.: 18-0818\n\nDear\n\nand Ms. Smith: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn December 14, 2018, the Public Access Bureau received a Request for Review\nchallenging the response by the Illinois Department of Transportation\n\nfrom\nIDOT) to his October 25, 2018, FOIA request. \nrecords provided to IDOT's then-Director, Beth McCluskey, concerning alleged workplace\nharassment or discrimination within the South Central Illinois Mass Transit District (Transit\nDistrict). In his FOIA request, \nMcCluskey to send a letter, dated October 12, 2018, to members of the Transit District's Board\nof Trustees (Board). \nIDOT denied the request pursuant to sections 7(1)(d)(iii) and 7(1)(d)(iv) of FOIA (5 ILCS\n140/ 7(1)(d)(iii), (1)(d)(iv) (West 2018)), stating the requested information \" consists of a\n\nstated that the harassment allegation prompted Ms. \n\nwas a member of the Board at the time. On October 30, 2018, \n\nrequest sought copies of certain\n\ncomplaint related to a public body that is in the process of investigation.\" 1 On December 18, \n2018, this office requested that IDOT provide un- redacted copies of the withheld records for this\noffice's confidential review, together with a detailed legal and factual explanation of its basis for\nasserting the above- referenced exemptions. On December 28, 2018, IDOT provided those\nmaterials. In its written answer, IDOT asserted the withheld record was also exempt under\nsection 7(1)(d)(ii) of FOIA 5 ILCS 140/ 7(1)(d)(ii) (West 2018)). On January 6, 2019, \n\nreplied, maintaining that IDOT improperly denied his request and that no investigation\n\nwas being conducted. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body\nthat denies a record \"has the burden of proving by clear and convincing evidence\" that the record\nis exempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to\nbe narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d\nthe public body must provide a detailed justification\n401, 407 (1997). \" To meet its burden * * *, \nfor its claim of exemption, addressing the requested records specifically and in a manner\nallowing for adequate adversarial\nMorrissey, 398 Ill. App. 3d 145, 150 (2nd Dist. 2010). Bare assertions without a detailed\nrationale do not satisfy a public body's burden of explaining how exemptions are applicable. See\nRockford Police Benevolent & Protective Ass' n, 398 Ill. App. 3d at 151 (citing Illinois Education\nAss'n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003)). \n\ntesting.\" Rockford Police Benevolent & Protective Ass' n v. \n\nSections 7(1)(d)(ii), 7(1)(d)(iii), and 7(1)(d)(iv) of FOIA exempt from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any\nlaw enforcement or correctional agency for law enforcement\npurposes, but only to the extent that disclosure would: \n\nii) interfere with active administrative enforcement\n\nproceedings conducted by the public body that is the\n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies[.] (Emphasis added.) \n\ninformation furnished only\n\nIn construing a statute, the primary objective is to ascertain and give effect to the\nintent of the General Assembly. Southern Illinoisan v. Illinois Department of Public Health, 218\nIll. 2d 390, 415 (2006). \"[ T]he surest and most reliable indicator of\" legislative intent \"is the\nstatutory language itself, given its plain and ordinary meaning.\" Board of Education of\nSpringfield School District No. 186 v. Attorney General of Illinois, 2017 IL 120343, ¶24, 77\nN.E.3d 625, 630 (2017). \n\nIDOT's response to this office stated that it was conducting an ongoing\n\ninvestigation into the allegations in the letter that\nreceived media inquiries related to the underlying workplace allegations, and that IDOT's\nattorney advised it to withhold the responsive record \"due to the sensitive nature of the requests\" \nand asserted that the release of the letter could \" potentially cause detrimental outcomes to the\naccuser and/or the accused.\" 2\n\nsought. IDOT also stated it had\n\nThe plain language of section 7(1)(d) provides that records fall within the scope\n\nof this provision, under certain circumstances, when the public body maintaining the records is a\nlaw enforcement agency or, for other types of public bodies, when the records were created\nduring the course of an administrative enforcement proceeding. \n\nWith respect to the first prerequisite, IDOT is not a \" law enforcement\" agency\n\nwithin the context of section 7(1)(d) of FOIA. Instead, IDOT is tasked with, among other things, \nthe responsibility for the planning, funding, construction, operation, and maintenance of Illinois' \ntransportation network. See 20 ILCS 2705/ 2705- 10 (West 2020). Therefore, IDOT has not\nestablished that the responsive record is possessed by a law enforcement agency for law\nenforcement purposes. \n\nFurther, based on this office's confidential\n\nreview, the record in question was not\n\ncreated in the course of an administrative enforcement proceeding. Even assuming IDOT's\nassertion that conducting an investigation into the underlying workplace allegations could be\nconstrued as an administrative enforcement proceeding, the scope of section 7(1)(d) is limited to\nrecords generated during the proceedings; it does not encompass records such as the underlying\n\nBarnaby (December 28, 2018). \n\n2E- mail from Barb Smith, FOIA Officer, Illinois Department of Transportation, to [Shannon] \n\nrequest sought records that may have initiated IDOT's investigation, \n\ncomplaints that were created before the commencement of administrative enforcement\nproceedings. \nnot any records that may have been generated during that investigation. Therefore, this office\nconcludes that IDOT has not sustained its burden of demonstrating that the responsive letter is\nexempt from disclosure pursuant to sections 7(1)(d)(ii), 7(1)(d)(iii), or 7(1)(d)(iv) of FOIA. \nAccordingly, this office requests that IDOT provide\nwith a copy of the responsive\nletter. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon.Barnaby@ilag.gov. \n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56109 71dii improper 71diii improper 71div improper sa"}
{"id":924,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-08","case_number":null,"request_numbers":["56112"],"title":"Village of Waterman properly charged copying fees and proposed redactions permissible under 7(1)(m)","filename":"56112, issued April 8, 2019.pdf","rel_path":null,"word_count":3822,"summary":"The requester challenged the Village of Waterman's copying fees and redactions of legal bills; the PAC found the fees were proper but that the Village improperly redacted certain names from legal bills under the attorney-client privilege exemption.","plain_summary":"A resident requested records from the Village of Waterman and was charged a copying fee, which he disputed. The Illinois Attorney General's Public Access Bureau concluded that the Village did not improperly charge the fee and did not improperly redact records. The Village also proposed furnishing redacted copies of previously withheld records, and the Bureau found those proposed redactions permissible.","holding":"The Village of Waterman properly charged copying fees and did not improperly redact records; the Village's proposed redactions are permissible.","legal_question":"Whether the Village of Waterman properly applied FOIA exemptions to redact legal bills and whether the assessed copying fees complied with 5 ILCS 140/6.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)"],"public_body":"Village of Waterman","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought various municipal records and challenged the associated copying costs and redactions made to legal invoices.","ocr_status":"ok","ocr_quality":94,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/56112%2C%20issued%20April%208%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["copying fees","legal bills","attorney-client privilege","redactions"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 8,  2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Heather Neveu\n\nCounsel\n\nfor Village of Waterman\n\nChilton Yambert Porter LLP\n\n303 West Madison Street,  Suite 2300\n\nChicago,  Illinois 60606\n\nhneveu@cyp- law. com\n\nRE:  FOIA Request for Review — 2018 PAC 56112\n\nDear\n\nand Ms.  Neveu: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Waterman ( Village)  did not improperly\ncharge a copying fee for the copies of records it furnished\nexceptions,  did not\nimproperly redact\nrequest.  The Village has also proposed furnishing\npreviously withheld;  the Village' s proposed redactions are permissible. \n\ninformation responsive to\n\nand with limited\n\nFOIA\n\nwith redacted copies of records it\n\nOn October 10,  2018, \n\nsubmitted a 16 -part FOIA request to the\n\nVillage.  On October 16,  2018, the Village notified\n\nthat records responsive to his\n\nrequest would be available the next day,  that there were 428 pages of responsive records,  and\nthat the cost of the copies was $ 56. 70 ( for the 378 pages exceeding the 50 pages that\n\nis entitled to receive without charge). \n\nretrieved the copies on October 17, \n\n2018,  paying the stated copy fee.  The Village' s response letter notifies\n1)  denied certain parts of the request in their entireties; ( 2)  redacted some portions of the records\n\nthat it had\n\nthat it did provide; and ( 3)  it did not possess records response to certain other parts of the\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 2I7)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 2\n\nrequest.  On December 14,  2018,  this office received\n\nRequest for Review\n\ncontesting the Village' s response to parts six,  eight,  nine,  and fifteen of his request. \n\nIn part six of the FOIA request, \n\nsought copies of \"[r] ecords related to\n\nthe Legal Expenses of Kendall County Case 17 L 72 and Dekalb County Case 2018 CH 139\nwhich includes but is not limited to billable hours and description of legal services rendered.\"' \n\nThe Village furnished\nthe descriptions of the legal services rendered.  In his Request for Review, \n\ntwenty- two pages of billing invoices with some redactions to\ncontests\n\nthe redactions. \n\nIn part eight of the FOIA request, \n\nsought copies of \"[ a] ny written\ncommunication that includes but is not limited to Emails and Letters between any Village of\nWaterman Public Official and Village Attorney David William Porter and his Law firm of\nChilton Yambert Porter LLP from 6- 15- 2019 until the present day. i2 Part nine of the request\nsought similar correspondence between any Village employee and the Village' s outside counsel. \nThe Village denied these parts of the request\nfell]  under attorney client privilege. i3\n\nin their entireties,  asserting that the \" information\n\ncontests the denial of those records. \n\nFinally,  in part fifteen of the FOIA request, \n\nrequested \"[ a] ny records\n\nthat the Village of Waterman has on Kendall County Case 17 L 72 and Dekalb County Case\n2018 CH 139. i4 The Village furnished\n\nrecords responsive to this part of the\n\nrequest. \nasserts that the records provided by the Village\ninclude the court records in the case files of both lawsuits,  and that because he is the plaintiff in\n\nIn his Request\n\nfor Review, \n\nthose lawsuits,  the Village' s attorney knew that he already had copies of the court records in\nthose cases,  and therefore,  he is entitled to a refund of his copying fees he paid for those pages. \n\nOn December 26,  2018,  the Public Access Bureau forwarded a copy of the\n\nRequest for Review to the Village and asked it to provide the Public Access Bureau with un - \n\nredacted copies of records responsive to parts six,  eight,  and nine of the request,  together with a\n\ndetailed explanation of the factual and legal bases for the applicability of a FOIA exemption to\nthe information that was withheld and redacted.  On January 3,  2019,  this office received a\nresponse from the Village' s outside counsel,  asserting that the legal\n\ninvoices responsive to part\n\nFOIA Request\n\nfrom\n\nto Village of Waterman,  at\n\n1 ( undated). \n\n2FOIA Request from\n\nto Village of Waterman,  at 1- 2 ( undated). \n\n2018). \n\n3Letter from Abigail Pool,  Village Clerk,  Village of Waterman, \n\nto\n\nOctober 17, \n\n4FOIA Request\n\nfrom\n\nto Village of Waterman,  at 2.( undated). \n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 3\n\nsix of the request,  and the correspondence responsive to parts eight and nine of the request,  were\n\nredacted and withheld pursuant\n\nto section 7( 1)( m)  of FOIA ( 5 ILCS 140/ 7( 1)( m) ( West 2017\n\nSupp.),  as amended by Public Act 100- 732,  effective August 3,  2018).  The Village furnished for\nour confidential\nIn a telephone conversation\nwith an Assistant Attorney General ( AAG) in the Public Access Bureau,  the Village' s outside\ncounsel explained that its preliminary review indicated that there were more than 500 pieces of\nresponsive to parts eight and nine of the request,  because the law firm identified\ncorrespondence\n\nreview copies of the unredacted billing invoices. \n\nin the FOIA request represents the Village in nearly all\nthe AAG spoke with\n\nits legal matters.  On January 15,  2019, \nwho agreed to narrow parts eight and nine of his request to\n\ncorrespondence relating to the two lawsuits he brought against\nfurnished this\npart six of his FOIA request.  On January 25,  2019,  the Village' s outside counsel\noffice with unredacted copies of records responsive to the narrowed parts eight and nine of the\n\nthe Village that were identified in\n\nrequest,  along with redacted copies of that same correspondence.  The Village also provided an\nadditional written response asserting that the records were exempt from disclosure pursuant\nsection 7( 1)( m)  of FOIA.  In a telephone conversation with the AAG,  the Village' s outside\n\nto\n\ncounsel confirmed that it was willing to furnish\ncorrespondence,  but sought this office's review of its proposed redactions. \n\nredacted copies of the responsive\n\nOn February 27,  2019,  this office forwarded the Village' s written responses to\n\nhe replied on March 6,  2019. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"  5 ILCS\n140/ 1. 2 ( West 2016).  Section 3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2016))  further provides: \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords,  except as otherwise provided in Sections 7 and 8. 5 of this Act.\"  The exemptions from\ndisclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7. (West 2017 Supp.),  as amended by\nPublic Act 100- 732,  effective August 3,  2018)  are to be narrowly construed.  See Lieber v.  Board\nof Trustees ofSouthern Illinois University,  176 I11.  2d 401,  407 ( 1997). \n\nCopy Fee\n\nargues that he is entitled to a refund of the $ 56. 70 fee he paid for\n\npaper copies of the records responsive to his request, because those copies included court records\nin the two lawsuits he had filed against the Village,  and he already possesses copies of those\nrecords.  Prior to submitting his Request for Review to the Public Access Bureau, \nsent e- mails to the Village on October 17,  2018,  and October 22,  2018,  asking for a refund of his\n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 4\n\ncopy fee on that basis that he did not want copies of the court records. \ne- mail to the Village, \nalready have those records at home and if I wanted to make copies I could make copies of the\nrecords that I have at home. i5\n\nasserted that \"[ i] t should have been common sense that I\n\nIn his October 22,  2018, \n\nPart fifteen of the FOIA request seeks \"[ a] ny records that the Village of\n\nWaterman has on Kendall County Case 17 L 72 and Dekalb County Case 2018 CH 139.\" 6\nEmphasis added.)  The Village' s copies of the court filings in those two cases are responsive to\nto exclude court\nthat part of the request. \nfilings,  or copies of filings that the Village or its counsel had served upon him in the context of\nthe litigation.  The FOIA request contained no such limitation,  and the Village has no obligation\nthe possibility that a requester already possesses copies of records that are\nto assume or consider\nunambiguously responsive to the request as written,  and unilaterally modify his request without\nany prior indication from the requester that his request should be interpreted that way. 7\n\ncould have limited this part of his request\n\nThe Village' s e- mail\n\nto\n\nstates that it would provide him 50 pages of\n\npaper copies without charge,  and assess a copy charge of $0. 15 for each of the remaining 378\npages of records responsive to the request.  The stated copy fee does not exceed the fee\nauthorized by section 6( b)  of FOIA ( 5 ILCS 140/ 6( b) ( West 2016)). 8 Accordingly,  the Village' s\nimposition of a $ 56. 70 copy fee for the records\n\nreceived does not violate FOIA. \n\nSection 7( 1)( m)  of FOIA\n\nSection 7( 1)( m)  of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nto\nrepresenting the public body that would not be subject\ndiscovery in litigation,  and materials prepared or compiled by or\nfor a public body in anticipation of a criminal,  civil or\n\nWaterman President Darryl Beach ( October 22,  2018). \n\n5E -mail from\n\nto Abigail Pool, [ Village Clerk,  Village of Waterman],  and Village of\n\n6FOIA Request\n\nfrom\n\nto Village of Waterman,  at 2 ( undated). \n\nMoreover,  the Village' s October 16,  2018,  e- mail\n\nto\n\nnotifying him that his records\n\nwould be available the next day states that the Village Clerk attempted to call him at the telephone number\nhis FOIA request, but did not reach him and was unable to leave a voicemail message. \n\nlisted on\n\nexceed 15 cents per, page.\" \n\nSection 6( b)  of FOIA provides: \" The fee for black and white,  letter or legal sized copies shall not\n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 5\n\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney- client privilege are within the scope of section\n7( 1)( m).  See People ex rel. Ulrich v. Stukel,  294I11.  App.  3d 193,  201 ( 1st Dist.  1997).  A party\nasserting that a confidential communication is protected by the attorney- client privilege must\n1)  a statement originated in confidence that it would not be disclosed; ( 2)  it was\nshow that: \"(\n\nmade to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices;  and ( 3)  it remained confidential.\"  Cangelosi v.  Capasso,  366 I11.  App.  3d 225,  228 ( 2d\nDist.  2006);  see also In re General Instrument Corp.  Securities Litigation,  190 F. R. D.  527,  531\nN. D.  I11.  2000),  quoting United States v.  Evans,  113 F. 3d 1457,  1461 ( 7th Cir.  1997) (\" To be\nprivileged,  the documents must not only exhibit attorney involvement,  but must involve a ' legal\nadviser acting in his capacity as such.\"');  Illinois Education Association v.  Illinois State Board of\nEducation,  204 Ill.  2d 456,  470 ( 2003) ( A public body that withholds records under section\n7( 1)( m)  must provide a supporting factual basis for the application of the exemption,  including\nsome objective indicia that the exemption is applicable under the circumstances.\"). (\nEmphasis\n\nin original.)  Moreover, \"[ t] he privilege applies not only to the communications of a client\nattorney,  but also to the advice of an attorney to his client.\" \nApp.  3d 363,  374 ( 5th Dist.  1990);  see also People v.  Radojcic,  2013 IL 114197, ¶ 40,  998\nN. E. 2d 1212,  1221- 22 ( 2013) (\"[ T] he modern view is that the privilege is a two-way street, \nprotecting both the client' s communications to the attorney and the attorney' s advice to the\n\nto his\nIn re Marriage of Granger,  197 Ill. \n\nclient.\"). \n\nAdditionally,  the Public Access Bureau has previously determined that the section\n\n7( 1)( m)  exemption encompasses records excluded from discovery under the Illinois work\nproduct doctrine.  See,  e. g., I11.  Att' y Gen.  PAC Req.  Rev.  Ltr. 32087,  issued June 9,  2015,  at 2. \nThe parameters of \"work product\"  are set out in Illinois Supreme Court Rule 201( b)( 2) ( effective\nJuly 30,  2014),  which provides that material prepared \" by or for a party in preparation for trial\nis\nsubject to discovery only if it does not contain or disclose the theories,  mental impressions, or\nlitigation plans of the party' s attorney.\"  Attorney work product is limited to records that \" reveal\nthe shaping process by which the attorney has arranged the available evidence\" \nfor trial.  Monier\nv.  Chamberlain,  35 111.  2d 351,  359- 60 ( 1966);  Waste Management,  Inc.,  v.  International Surplus\nLines Ins.  Co.,  144 I11. 2d 178,  196 ( 1991) ( contrasting \" ordinary work product,  which is any\nrelevant material generated in preparation for trial which does not disclose ' conceptual data'  is\nfreely discoverable,\" \nlitigation \" which reveal\n\nfrom \" core\"  work product,  which are materials generated in preparation for\n\nimpressions,  opinions,  or trial strategy of an attorney\"). \n\nthe mental\n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 6\n\nCorrespondence between the Village and Outside Counsel\n\nThe Village withheld all records responsive to parts eight and nine of the request, \n\nwhich sought copies of all correspondence between Village officials and employees,  and the\nVillage' s outside counsel.  After receiving this office' s letter of inquiry,  and after\nagreed to narrow those parts of his request to correspondence relating to the lawsuits he has filed\nagainst the Village,  the Village conducted a supplemental review of the responsive\ncorrespondence.  The Village argued that its original denial of this part of the request was proper. \n\nN] ot all communications between attorney and client are exempt\nfrom disclosure in response to a FOIA request. \nrequest,  however,  is unique as he is seeking communications\nrelated to active litigation to which he is party. \n\nIn any other litigation matter,  it is inconceivable to me to imagine\nthat an attorney' s correspondence file could be discoverable and\nturned over to the opposing party.  For this reason,  the Village\nmaintains that the documents were properly withheld from\n\n9\n\nNevertheless,  the Village stated that it was willing to make a supplemental\n\nresponse to\nThe Village furnished for this office' s review a copy of its proposed redactions,  along with\nunredacted copies of the same records. \n\nproviding copies of the responsive correspondence with redactions. \n\nThis office has reviewed the unredacted correspondence,  and disagrees with the\n\nVillage that its initial decision to withhold all the responsive correspondence between the Village\nand its outside counsel was proper.  The responsive records include some correspondence\nbetween the Village and its outside counsel\nconfidential\nof the party' s attorney. \n\nlegal advice,  and did not disclose the theories, mental\n\nthat do not contain requests for or the provision of\n\nimpressions,  or litigation plans\n\nThe Village' s proposed redactions are more limited, and with one exception, \n\ncover only communications \" made to an attorney acting in his legal capacity for the purpose of\nsecuring legal advice,\"  Cangelosi,  366 I11.  App.  3d at 228,  or communications in which the\nattorney provided legal advice to Village officials or employee.  These communications are\n\nGeneral,  Public Access Bureau,  Office of the Illinois Attorney General,  at\n\n1 ( January 25,  2019). \n\nLetter from Health M.  Neveu,  Chilton Yambert Porter LLP,  to Leah Bartelt,  Assistant Attorney\n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 7\n\nprotected by the attorney- client privilege,  and there is no indication that the Village has shared\nthe records with outside parties or otherwise waived the attorney- client privilege. \n\nOur review of the proposed redactions indicates that the Village also proposed\n\ntelephone number exempt\nredacting a cellular telephone number,  which appears to be a personal\nfrom disclosure pursuant\nto section 7( 1)( b)  of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2017 Supp.),  as\namended by Public Act 100- 732,  effective August 3,  2018).  Accordingly,  this office concludes\nthat the Village has sustained its burden of demonstrating that information it proposes redacting\nfrom its supplemental response to\n\nis exempt from disclosure pursuant to sections\n\n7( 1)( m)  and 7( 1)( b)  of FOIA.  This office requests that the Village provide to\n\ncopies of the redacted correspondence that it furnished for this office' s review. \n\nInvoices from Outside Counsel\n\nIn its response to\n\nthe Village relied on section 7( 1)( m)  of FOIA to\n\nredact from legal invoices certain descriptions and parts of descriptions of attorney work\nperformed.  In Stukel,  294 Ill. App.  3d at 203- 04,  the Illinois Supreme Court held that\ninformation regarding a client' s fees generally is not a ' confidential communication'  between an\nattorney and client,  and thus is not protected by the attorney client privilege. [ Citations.]  The\npayment of fees is merely incidental to the attorney- client relationship and typically does not\ninvolve the disclosure of confidential communications arising from the relationship.\"  The Court, \nhowever, acknowledged that \"[ c] ertain types of billing records may contain explanations for\nlegal fees and may indicate the type of work done or matters discussed between the attorney and\nclient.  As such,  they could reveal the substance of confidential attorney- client discussions,  and\nbe subject to valid claims of attorney- client privilege or exemption under [ FOIA].\" ( Emphasis\nadded.)  Stukel,  294 I11.  App.  3d at 201.  Because the records at issue \" made no reference to the\npending litigation other than to name the payee law firm,  and designate the amount and the date\nof each payment[,]\" ( Stukel,  294111.  App. 3d at 201),  the Court did not further elaborate on the\ntype of information that could be properly redacted from legal billing invoices based on the\nattorney- client privilege. \n\nIn analyzing whether\n\nlegal billing invoices were subject\n\nto disclosure pursuant\n\nto\n\nan administrative subpoena,  a Federal appeals court distinguished privileged material\n\nfrom\n\ngeneral\n\ninformation concerning legal services: \n\nNot all communications between attorney and client are\n\nprivileged. Our decisions have recognized that the identity of the\nclient,  the amount of the fee,  the identification ofpayment by\ncase file name,  and the general purpose of the work performed\nare usually not protected from disclosure by the attorney- client\n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 8\n\nprivilege. [ Citations.]  However,  correspondence,  bills,  ledgers, \n\nstatements,  and time records which also reveal\n\nthe motive of the\n\nclient in seeking representation,  litigation strategy,  or the specific\nnature of the services provided,  such as researching particular\nareas of law, fall within the privilege. ( Emphasis added.)  Clarke\nv.  American Commerce National Bank, 974 F. 2d 127,  130 ( 9th Cir. \n1992). \n\nSee also Hampton Police Association v.  Town of Hampton,  162 N. H.  7,  15,  20 A. 3d 994,  1001\nN. H.  2011) (\" Courts generally agree that billing statements that provide only general\ndescriptions of the nature of the services performed and do not reveal\n\nthe subject of confidential\n\ncommunications with any specificity are not privileged.\" ( Emphasis in original.));  U.S.  v. \nNaegele,  468 F. Supp. 2d 165,  171 ( D. D. C.  2007) ( billing statements that are \" general and do not\nreveal any litigation strategy or other specifics of the representation or any confidential client\ncommunications[] * * * \n\nare not protected by the attorney- client privilege.\").  To be privileged, \n\nbilling invoices must \" include detailed entries which advise,  analyze or discuss privileged\ncommunications.\" ( Emphasis in original.)  Tipton v.  Barton,  747 S. W.2d 325,  332 ( Mo.  Ct. App. \n1988);  see also Chaudhry v.  Gallerizzo,  174 F. 3d 394,  403 ( 4th Cir.  1999) ( billing invoices that\nidentified the specific federal statutes that an attorney researched were privileged because\ndisclosure \" would divulge confidential\n\ninformation regarding legal advice\"). \n\nThis office has reviewed the unredacted invoices and concludes that nearly all the\n\ninformation redacted from the descriptions of work performed by attorneys are protected by the\nattorney- client privilege.  Because the disclosure of this information would reveal\n\nlitigation\n\nstrategy, specifics of the representation,  or confidential client communications,  it falls within the\nscope of section 7( 1)( m)  of FOIA,  and was not improperly redacted prior to the disclosure of the\nbills to\n\nHowever,  the Village also redacted some information that would not reveal legal\n\nstrategy or confidential attorney- client communications.  In particular, the Village's redactions\nincluded an individual' s name or title from some descriptions of work performed. \nIn some cases, \nthe name is the only redaction made;  in others,  the name is redacted along with some information\ndescribing attorney work performed.  As stated in Clarke, the identity of a client generally is not\nprivileged.  See Clarke,  974 F. 2d at 130 (\" The identity of the client [\nprotected from disclosure by the attorney- client privilege.\") \nThe Village has not described how\nthe disclosure of the identity of these individuals would reveal the substance of litigation strategy\nor confidential communications,  and this office cannot discern how these details are protected by\nthe attomey- client privilege.  Accordingly,  this office finds that the Village improperly relied on\nsection 7( 1)( m)  of FOIA to redact names from descriptions dated 10/ 31/ 17,  11/ 1/ 17,  11/ 14/ 17, \n11/ 17/ 17,  1/ 2/ 18,  1/ 30/ 18,  and 4/ 20/ 18.  This office requests that the Village furnish\n\nusually not\n\nis] * * * \n\n\fMs.  Heather Neveu\n\nApril 8,  2019\n\nPage 9\n\nwith copies of these pages of the redacted legal bills with the names ( or titles) of the individuals\nin these entries displayed.  To the extent the entries on these dates also contain redactions of\n\ninformation that is not names or titles,  the Village may maintain those redactions. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact meat ( 312)  814- 6437 or lbartelt@atg. state. il. us. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n56112 f 6b fee proper 71m proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village's legal invoice redactions and copying fees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56112/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nApril 8, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Heather Neveu\n\nCounsel\n\nfor Village of Waterman\n\nChilton Yambert Porter LLP\n\n303 West Madison Street, Suite 2300\n\nChicago, Illinois 60606\n\nhneveu@cyp- law. com\n\nRE: FOIA Request for Review — 2018 PAC 56112\n\nDear\n\nand Ms. Neveu: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Waterman (Village) did not improperly\ncharge a copying fee for the copies of records it furnished\nexceptions, did not\nimproperly redact\nrequest. The Village has also proposed furnishing\npreviously withheld; the Village's proposed redactions are permissible. \n\ninformation responsive to\n\nand with limited\n\nFOIA\n\nwith redacted copies of records it\n\nOn October 10, 2018, \n\nsubmitted a 16 -part FOIA request to the\n\nVillage. On October 16, 2018, the Village notified\n\nthat records responsive to his\n\nrequest would be available the next day, that there were 428 pages of responsive records, and\nthat the cost of the copies was $ 56. 70 (for the 378 pages exceeding the 50 pages that\n\nis entitled to receive without charge). \n\nretrieved the copies on October 17, \n\n2018, paying the stated copy fee. The Village's response letter notifies\n1) denied certain parts of the request in their entireties; (2) redacted some portions of the records\n\nthat it had\n\nthat it did provide; and (3) it did not possess records response to certain other parts of the\n\nrequest. On December 14, 2018, this office received\n\nRequest for Review\n\ncontesting the Village's response to parts six, eight, nine, and fifteen of his request. \n\nIn part six of the FOIA request, \n\nsought copies of \"[r] ecords related to\n\nthe Legal Expenses of Kendall County Case 17 L 72 and Dekalb County Case 2018 CH 139\nwhich includes but is not limited to billable hours and description of legal services rendered.\"' \n\nThe Village furnished\nthe descriptions of the legal services rendered. In his Request for Review, \n\ntwenty- two pages of billing invoices with some redactions to\ncontests\n\nthe redactions. \n\nIn part eight of the FOIA request, \n\nsought copies of \"[ a] ny written\ncommunication that includes but is not limited to Emails and Letters between any Village of\nWaterman Public Official and Village Attorney David William Porter and his Law firm of\nChilton Yambert Porter LLP from 6- 15- 2019 until the present day. i2 Part nine of the request\nsought similar correspondence between any Village employee and the Village's outside counsel. \nThe Village denied these parts of the request\nfell] under attorney client privilege. i3\n\nin their entireties, asserting that the \" information\n\ncontests the denial of those records. \n\nFinally, in part fifteen of the FOIA request, \n\nrequested \"[ a] ny records\n\nthat the Village of Waterman has on Kendall County Case 17 L 72 and Dekalb County Case\n2018 CH 139. i4 The Village furnished\n\nrecords responsive to this part of the\n\nrequest. \nasserts that the records provided by the Village\ninclude the court records in the case files of both lawsuits, and that because he is the plaintiff in\n\nIn his Request\n\nfor Review, \n\nthose lawsuits, the Village's attorney knew that he already had copies of the court records in\nthose cases, and therefore, he is entitled to a refund of his copying fees he paid for those pages. \n\nOn December 26, 2018, the Public Access Bureau forwarded a copy of the\n\nRequest for Review to the Village and asked it to provide the Public Access Bureau with un - \n\nredacted copies of records responsive to parts six, eight, and nine of the request, together with a\n\ndetailed explanation of the factual and legal bases for the applicability of a FOIA exemption to\nthe information that was withheld and redacted. On January 3, 2019, this office received a\nresponse from the Village's outside counsel, asserting that the legal\n\ninvoices responsive to part\n\nFOIA Request\n\nfrom\n\nto Village of Waterman, at\n\n1 (undated). \n\n2FOIA Request from\n\nto Village of Waterman, at 1- 2 (undated). \n\n2018). \n\n3 Letter from Abigail Pool, Village Clerk, Village of Waterman, \n\nsix of the request, and the correspondence responsive to parts eight and nine of the request, were\n\nredacted and withheld pursuant\n\nto section 7(1)(m) of FOIA (5 ILCS 140/ 7(1)(m) (West 2017\n\nSupp.), as amended by Public Act 100- 732, effective August 3, 2018). The Village furnished for\nour confidential\nIn a telephone conversation\nwith an Assistant Attorney General (AAG) in the Public Access Bureau, the Village's outside\ncounsel explained that its preliminary review indicated that there were more than 500 pieces of\nresponsive to parts eight and nine of the request, because the law firm identified\ncorrespondence\n\nreview copies of the unredacted billing invoices. \n\nin the FOIA request represents the Village in nearly all\nthe AAG spoke with\n\nits legal matters. On January 15, 2019, \nwho agreed to narrow parts eight and nine of his request to\n\ncorrespondence relating to the two lawsuits he brought against\nfurnished this\npart six of his FOIA request. On January 25, 2019, the Village's outside counsel\noffice with unredacted copies of records responsive to the narrowed parts eight and nine of the\n\nthe Village that were identified in\n\nrequest, along with redacted copies of that same correspondence. The Village also provided an\nadditional written response asserting that the records were exempt from disclosure pursuant\nsection 7(1)(m) of FOIA. In a telephone conversation with the AAG, the Village's outside\n\nto\n\ncounsel confirmed that it was willing to furnish\ncorrespondence, but sought this office's review of its proposed redactions. \n\nredacted copies of the responsive\n\nOn February 27, 2019, this office forwarded the Village's written responses to\n\nhe replied on March 6, 2019. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1. 2 (West 2016). Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2016)) further provides: \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\" The exemptions from\ndisclosure contained in section 7 of FOIA (5 ILCS 140/ 7. (West 2017 Supp.), as amended by\nPublic Act 100- 732, effective August 3, 2018) are to be narrowly construed. See Lieber v. Board\nof Trustees ofSouthern Illinois University, 176 I11. 2d 401, 407 (1997). \n\nCopy Fee\n\nargues that he is entitled to a refund of the $ 56. 70 fee he paid for\n\npaper copies of the records responsive to his request, because those copies included court records\nin the two lawsuits he had filed against the Village, and he already possesses copies of those\nrecords. Prior to submitting his Request for Review to the Public Access Bureau, \nsent e- mails to the Village on October 17, 2018, and October 22, 2018, asking for a refund of his\n\ncopy fee on that basis that he did not want copies of the court records. \ne- mail to the Village, \nalready have those records at home and if I wanted to make copies I could make copies of the\nrecords that I have at home. i5\n\nasserted that \"[ i] t should have been common sense that I\n\nIn his October 22, 2018, \n\nPart fifteen of the FOIA request seeks \"[ a] ny records that the Village of\n\nWaterman has on Kendall County Case 17 L 72 and Dekalb County Case 2018 CH 139.\" 6\nEmphasis added.) The Village's copies of the court filings in those two cases are responsive to\nto exclude court\nthat part of the request. \nfilings, or copies of filings that the Village or its counsel had served upon him in the context of\nthe litigation. The FOIA request contained no such limitation, and the Village has no obligation\nthe possibility that a requester already possesses copies of records that are\nto assume or consider\nunambiguously responsive to the request as written, and unilaterally modify his request without\nany prior indication from the requester that his request should be interpreted that way. 7\n\ncould have limited this part of his request\n\nThe Village's e- mail\n\nto\n\nstates that it would provide him 50 pages of\n\npaper copies without charge, and assess a copy charge of $0. 15 for each of the remaining 378\npages of records responsive to the request. The stated copy fee does not exceed the fee\nauthorized by section 6(b) of FOIA (5 ILCS 140/ 6(b) (West 2016)). 8 Accordingly, the Village's\nimposition of a $ 56. 70 copy fee for the records\n\nreceived does not violate FOIA. \n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nto\nrepresenting the public body that would not be subject\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\n\nWaterman President Darryl Beach (October 22, 2018). \n\n5E -mail from\n\nto Abigail Pool, [ Village Clerk, Village of Waterman], and Village of\n\n6FOIA Request\n\nfrom\n\nto Village of Waterman, at 2 (undated). \n\nMoreover, the Village's October 16, 2018, e- mail\n\nto\n\nnotifying him that his records\n\nwould be available the next day states that the Village Clerk attempted to call him at the telephone number\nhis FOIA request, but did not reach him and was unable to leave a voicemail message. \n\nlisted on\n\nexceed 15 cents per, page.\" \n\nSection 6(b) of FOIA provides: \" The fee for black and white, letter or legal sized copies shall not\n\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney- client privilege are within the scope of section\n7(1)(m). See People ex rel. Ulrich v. Stukel, 294I11. App. 3d 193, 201 (1st Dist. 1997). A party\nasserting that a confidential communication is protected by the attorney- client privilege must\n1) a statement originated in confidence that it would not be disclosed; (2) it was\nshow that: \"(made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 I11. App. 3d 225, 228 (2d\nDist. 2006); see also In re General Instrument Corp. Securities Litigation, 190 F. R. D. 527, 531\nN. D. I11. 2000), quoting United States v. Evans, 113 F. 3d 1457, 1461 (7th Cir. 1997) (\" To be\nprivileged, the documents must not only exhibit attorney involvement, but must involve a ' legal\nadviser acting in his capacity as such.\"'); Illinois Education Association v. Illinois State Board of\nEducation, 204 Ill. 2d 456, 470 (2003) (A public body that withholds records under section\n7(1)(m) must provide a supporting factual basis for the application of the exemption, including\nsome objective indicia that the exemption is applicable under the circumstances.\"). (Emphasis\n\nin original.) Moreover, \"[ t] he privilege applies not only to the communications of a client\nattorney, but also to the advice of an attorney to his client.\" \nApp. 3d 363, 374 (5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN. E. 2d 1212, 1221- 22 (2013) (\"[ T] he modern view is that the privilege is a two-way street, \nprotecting both the client's communications to the attorney and the attorney's advice to the\n\nto his\nIn re Marriage of Granger, 197 Ill. \n\nclient.\"). \n\nAdditionally, the Public Access Bureau has previously determined that the section\n\n7(1)(m) exemption encompasses records excluded from discovery under the Illinois work\nproduct doctrine. See, e. g., I11. Att' y Gen. PAC Req. Rev. Ltr. 32087, issued June 9, 2015, at 2. \nThe parameters of \"work product\" are set out in Illinois Supreme Court Rule 201(b)(2) (effective\nJuly 30, 2014), which provides that material prepared \" by or for a party in preparation for trial\nis\nsubject to discovery only if it does not contain or disclose the theories, mental impressions, or\nlitigation plans of the party's attorney.\" Attorney work product is limited to records that \" reveal\nthe shaping process by which the attorney has arranged the available evidence\" \nfor trial. Monier\nv. Chamberlain, 35 111. 2d 351, 359- 60 (1966); Waste Management, Inc., v. International Surplus\nLines Ins. Co., 144 I11. 2d 178, 196 (1991) (contrasting \" ordinary work product, which is any\nrelevant material generated in preparation for trial which does not disclose ' conceptual data' is\n\nCorrespondence between the Village and Outside Counsel\n\nThe Village withheld all records responsive to parts eight and nine of the request, \n\nwhich sought copies of all correspondence between Village officials and employees, and the\nVillage's outside counsel. After receiving this office's letter of inquiry, and after\nagreed to narrow those parts of his request to correspondence relating to the lawsuits he has filed\nagainst the Village, the Village conducted a supplemental review of the responsive\ncorrespondence. The Village argued that its original denial of this part of the request was proper. \n\nN] ot all communications between attorney and client are exempt\nfrom disclosure in response to a FOIA request. \nrequest, however, is unique as he is seeking communications\nrelated to active litigation to which he is party. \n\nIn any other litigation matter, it is inconceivable to me to imagine\nthat an attorney's correspondence file could be discoverable and\nturned over to the opposing party. For this reason, the Village\nmaintains that the documents were properly withheld from\n\n9\n\nNevertheless, the Village stated that it was willing to make a supplemental\n\nresponse to\nThe Village furnished for this office's review a copy of its proposed redactions, along with\nunredacted copies of the same records. \n\nproviding copies of the responsive correspondence with redactions. \n\nThis office has reviewed the unredacted correspondence, and disagrees with the\n\nVillage that its initial decision to withhold all the responsive correspondence between the Village\nand its outside counsel was proper. The responsive records include some correspondence\nbetween the Village and its outside counsel\nconfidential\nof the party's attorney. \n\nlegal advice, and did not disclose the theories, mental\n\nthat do not contain requests for or the provision of\n\nimpressions, or litigation plans\n\nThe Village's proposed redactions are more limited, and with one exception, \n\ncover only communications \" made to an attorney acting in his legal capacity for the purpose of\nsecuring legal advice,\" Cangelosi, 366 I11. App. 3d at 228, or communications in which the\nattorney provided legal advice to Village officials or employee. These communications are\n\nGeneral, Public Access Bureau, Office of the Illinois Attorney General, at\n\n1 (January 25, 2019). \n\nLetter from Health M. Neveu, Chilton Yambert Porter LLP, to Leah Bartelt, Assistant Attorney\n\nprotected by the attorney- client privilege, and there is no indication that the Village has shared\nthe records with outside parties or otherwise waived the attorney- client privilege. \n\nOur review of the proposed redactions indicates that the Village also proposed\n\ntelephone number exempt\nredacting a cellular telephone number, which appears to be a personal\nfrom disclosure pursuant\nto section 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2017 Supp.), as\namended by Public Act 100- 732, effective August 3, 2018). Accordingly, this office concludes\nthat the Village has sustained its burden of demonstrating that information it proposes redacting\nfrom its supplemental response to\n\nis exempt from disclosure pursuant to sections\n\n7(1)(m) and 7(1)(b) of FOIA. This office requests that the Village provide to\n\ncopies of the redacted correspondence that it furnished for this office's review. \n\nInvoices from Outside Counsel\n\nIn its response to\n\nthe Village relied on section 7(1)(m) of FOIA to\n\nredact from legal invoices certain descriptions and parts of descriptions of attorney work\nperformed. In Stukel, 294 Ill. App. 3d at 203- 04, the Illinois Supreme Court held that\ninformation regarding a client's fees generally is not a ' confidential communication' between an\nattorney and client, and thus is not protected by the attorney client privilege. [ Citations.] The\npayment of fees is merely incidental to the attorney- client relationship and typically does not\ninvolve the disclosure of confidential communications arising from the relationship.\" The Court, \nhowever, acknowledged that \"[ c] ertain types of billing records may contain explanations for\nlegal fees and may indicate the type of work done or matters discussed between the attorney and\nclient. As such, they could reveal the substance of confidential attorney- client discussions, and\nbe subject to valid claims of attorney- client privilege or exemption under [ FOIA].\" (Emphasis\nadded.) Stukel, 294 I11. App. 3d at 201. Because the records at issue \" made no reference to the\npending litigation other than to name the payee law firm, and designate the amount and the date\nof each payment[,]\" (Stukel, 294111. App. 3d at 201), the Court did not further elaborate on the\ntype of information that could be properly redacted from legal billing invoices based on the\nattorney- client privilege. \n\nIn analyzing whether\n\nlegal billing invoices were subject\n\nto disclosure pursuant\n\nto\n\nan administrative subpoena, a Federal appeals court distinguished privileged material\n\nfrom\n\ngeneral\n\ninformation concerning legal services: \n\nprivilege. [ Citations.] However, correspondence, bills, ledgers, \n\nstatements, and time records which also reveal\n\nthe motive of the\n\nclient in seeking representation, litigation strategy, or the specific\nnature of the services provided, such as researching particular\nareas of law, fall within the privilege. (Emphasis added.) Clarke\nv. American Commerce National Bank, 974 F. 2d 127, 130 (9th Cir. \n1992). \n\nSee also Hampton Police Association v. Town of Hampton, 162 N. H. 7, 15, 20 A. 3d 994, 1001\nN. H. 2011) (\" Courts generally agree that billing statements that provide only general\ndescriptions of the nature of the services performed and do not reveal\n\nthe subject of confidential\n\ncommunications with any specificity are not privileged.\" (Emphasis in original.)); U.S. v. \nNaegele, 468 F. Supp. 2d 165, 171 (D. D. C. 2007) (billing statements that are \" general and do not\nreveal any litigation strategy or other specifics of the representation or any confidential client\ncommunications[] * * * \n\nare not protected by the attorney- client privilege.\"). To be privileged, \n\nbilling invoices must \" include detailed entries which advise, analyze or discuss privileged\ncommunications.\" (Emphasis in original.) Tipton v. Barton, 747 S. W.2d 325, 332 (Mo. Ct. App. \n1988); see also Chaudhry v. Gallerizzo, 174 F. 3d 394, 403 (4th Cir. 1999) (billing invoices that\nidentified the specific federal statutes that an attorney researched were privileged because\ndisclosure \" would divulge confidential\n\ninformation regarding legal advice\"). \n\nThis office has reviewed the unredacted invoices and concludes that nearly all the\n\ninformation redacted from the descriptions of work performed by attorneys are protected by the\nattorney- client privilege. Because the disclosure of this information would reveal\n\nlitigation\n\nstrategy, specifics of the representation, or confidential client communications, it falls within the\nscope of section 7(1)(m) of FOIA, and was not improperly redacted prior to the disclosure of the\nbills to\n\nHowever, the Village also redacted some information that would not reveal legal\n\nstrategy or confidential attorney- client communications. In particular, the Village's redactions\nincluded an individual's name or title from some descriptions of work performed. \nIn some cases, \nthe name is the only redaction made; in others, the name is redacted along with some information\ndescribing attorney work performed. As stated in Clarke, the identity of a client generally is not\nprivileged. See Clarke, 974 F. 2d at 130 (\" The identity of the client [\nprotected from disclosure by the attorney- client privilege.\") \nThe Village has not described how\nthe disclosure of the identity of these individuals would reveal the substance of litigation strategy\nor confidential communications, and this office cannot discern how these details are protected by\nthe attomey- client privilege. Accordingly, this office finds that the Village improperly relied on\nsection 7(1)(m) of FOIA to redact names from descriptions dated 10/ 31/ 17, 11/ 1/ 17, 11/ 14/ 17, \n11/ 17/ 17, 1/ 2/ 18, 1/ 30/ 18, and 4/ 20/ 18. This office requests that the Village furnish\n\nwith copies of these pages of the redacted legal bills with the names (or titles) of the individuals\nin these entries displayed. To the extent the entries on these dates also contain redactions of\n\ninformation that is not names or titles, the Village may maintain those redactions. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact meat (312) 814- 6437 or lbartelt@atg. state. il. us. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\nPublic Access Bureau\n\n56112 f 6b fee proper 71m proper improper mun"}
{"id":925,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-07-01","case_number":null,"request_numbers":["56184"],"title":"Village of Arlington Heights Police Department improperly withheld all police reports mentioning requester","filename":"56184, issued July 1, 2021.pdf","rel_path":null,"word_count":1760,"summary":"The requester sought police reports related to his own name, which the Village of Arlington Heights Police Department denied in their entirety; the PAC determined the Department improperly withheld the records.","plain_summary":"A citizen requested police reports mentioning his name, but the police department denied the request, claiming various privacy and law enforcement exemptions. The Attorney General's office reviewed the records and concluded that the department was wrong to withhold the documents entirely, as they should have provided the records with appropriate redactions instead of a blanket denial.","holding":"The Village of Arlington Heights Police Department improperly withheld the requested police reports in their entireties.","legal_question":"Whether the Police Department properly invoked FOIA exemptions 7(1)(b), 7(1)(c), and 7(1)(d)(vi) to withhold all police reports mentioning the requester.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(vi)"],"public_body":"Village of Arlington Heights Police Department","requesting_party":"Individual requester","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought access to police reports in which he was named, which the department denied citing privacy and law enforcement exemptions.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vi/56184%2C%20issued%20July%201%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","FOIA denial","redaction","privacy exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 1, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Lisa A. Farrington\n\nStaff Attorney/FOIA Officer\nVillage of Arlington Heights\n\n[street address redacted for site publication -- see original PDF]\nlfarrington@vah.com\n\nRE: FOIA Request for Review — 2018 PAC 56184\nDear MB and Ms. Farrington:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the Village of Arlington Heights Police Department (Police\nDepartment) improperly withheld records responsive to Es November 29, 2018,\nFOIA request in their entireties.\n\nOn that date, bubmitted a FOIA request to the Police Department\nseeking copies of all police reports related to his name. On December 13, 2018, the Police\nDepartment denied the request in its entirety pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(d)(vi)\nof FOIA (5 ILCS 140/7(1)(b), (1)(c), (1)(d)(vi) (West 2018)). J Request for Review\ndisputed the denial of his request.\n\nOn December 27, 2018, this office sent a copy of the Request for Review to the\nPolice Department and asked it to provide copies of the records responsive to EEE request,\nfor our confidential review, along with a detailed explanation of the factual and legal bases for its\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 2\n\nresponse. On January 18, 2019, the Police Department provided the requested materials and\nboth a confidential and redacted written answer. On January 22, 2019, this office forwarded a\ncopy of the Police Department's redacted answer to SE he did not reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2018). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018)) further provides:\n\"Each public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from\ndisclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2018)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees of Southern Ilinois University, 176 Ill. 2d 401, 407\n(1997).\n\nSection 7(1)(d)(vi) of FOIA exempts from disclosure:\n\n(d) Records in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\n\noh OR ok\n\n(vi) endanger the life or physical safety of law enforcement\npersonnel or any other person\n\nUnder FOIA, \"[t]o meet its burden\" for withholding responsive records, \"the\npublic body must provide a detailed justification for its claim of exemption, addressing the\nrequested records specifically and in a manner allowing for adequate adversarial testing.\"\nRockford Police Benevolent and Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 150 (2d\nDist. 2010). Conclusory statements are insufficient to demonstrate that law enforcement records\nare exempt from disclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74-77\n(1st Dist. 2009). Rather, a public body must demonstrate how disclosure of records would\nendanger the life or physical safety of law enforcement personnel pursuant to section 7(1)(d)(vi)\nof FOIA. See, for example, Ill. Att'y Gen. PAC Reg. Rev. Ltr. 39298 39299, issued December 6,\n2017 (conclusory explanation as to why disclosure of information concerning technology\npurchased by police department would endanger the life or physical safety of officers fell short\nof FOIA's \"clear and convincing evidence\" standard).\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 3\n\nTo demonstrate that records are exempt under the provision of Federal FOIA that\ncorresponds to section 7(1)(d)(vi),! \"[a]n agency must identify and explain the reasonable threat\nof harm imposed on the individuals identified in the records the agency is seeking to exempt.\"\nKing v. United States Department of Justice, 245 F. Supp. 3d 153, 162 (D.D.C. 2017);” see also\nCenter for National Security Studies v. United States Department of Justice, 331 F.3d 918, 948\n(D.C. Cir. 2003) (records not exempt because agency did identify reasons that disclosure of\ninformation would pose a threat). This office has previously determined that section 7(1)(d)(vi)\ncould be applied to highly specific information, the disclosure of which would provide the public\nwith information that could be exploited to cause identifiable harm to certain individuals. See Ill.\nAtt'y Gen. PAC Rev. Ltr. 49142, issued November 21, 2017, at 4 (concluding that disclosure of\nthe specific duty times and locations of correctional officers \"could endanger the life or physical\nsafety of the correctional officers monitoring the jail by identifying their locations and potential\nvulnerable spots where officers are less supported.\"); Ill. Att'y Gen. PAC Rev. Ltr. 39298, 39299,\nissued December 6, 2017, at 4-5 (noting that this office has consistently determined that\ninformation that could be used to identify undercover officers is exempt from disclosure). By\ncontrast, this office has found that public bodies failed to meet their burden under section\n7(1)(d)(vi) when their assertions were conclusory and they did not explain, nor was it apparent,\nhow disclosure would endanger any individual. See Ill. Att'y Gen. PAC Rev. Ltr. 38173, issued\nFebruary 13, 2018, at 3 (determining that city had failed to demonstrate how disclosure of a use\nof force report would endanger any individual's safety); Ill. Att'y Gen. PAC Rev. Ltr. 25887,\nissued January 11, 2019, at 3 (concluding that police department failed to identify specific\ncircumstances from which this office could conclude that disclosure of individual police officers'\nphotographs would endanger officers’ lives or physical safety).\n\nThe Police Department's answer to this office indicated that it withheld the\nrecords responsive to HE equest pursuant to section 7(1)(d)(vi) of FOIA. In its\nconfidential answer to this office, the Police Department provided additional information\nexplaining its reliance on this provision. Because the Police Department provided its explanation\nconfidentially, this office is prohibited from further disclosing that information.*> However, this\noffice has determined that the Police Department's answer failed to meet its burden of\nestablishing that the responsive police reports would endanger the life or physical safety of law\n\n‘Exemption 7(F) of Federal FOIA (5 U.S.C. § 552(b)(7)(F) (2012)) exempts from disclosure\nrecords that \"could reasonably be expected to endanger the life or physical safety of any individual.\"\n\nBecause Illinois’ FOIA statute is based on the federal FOIA statute, decisions construing the\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v.\nDirector, Ill. Department of Revenue, 180 Ill. App. 3d 1084, 1087 (1st Dist. 1989).\n\n35 ILCS 140/9.5(d) (West 2018).\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 4\n\nenforcement personnel, or any other person. Accordingly, this office concludes that the Police\nDepartment improperly withheld the reports in their entirety under section 7(1)(d)(vi).\n\nThis office requests that the Police Department furnish HE with copies of\nthe records responsive to his request. The Police Department may permissibly redact from those\nrecords \"private information\" under section 7(1)(b) of FOIA* The Police Department may also\nredact, pursuant to 7(1)(c) of FOIA,* highly personal information that would constitute an\nunwarranted invasion of personal privacy if disclosed. Examples of such information includes\nindividuals' birthdates, races, and the names of third parties who were mentioned incidentally in\nthe reports. In addition, the Police Department may redact the name, date of birth, and other\nidentifying information of any juvenile pursuant to section 7(1)(c) of FOIA. Further, section\n7(1)(d)(iv) of FOTA (5 ILCS 140/7(1)(d)(iv) (West 2018)) exempts from disclosure information\nthat would \"unavoidably disclose the identity of a confidential source, confidential information\nfurnished only by the confidential source, or persons who file complaints with or provide\ninformation to administrative, investigative, law enforcement, or penal agencies.\" The\n7(1)(d)(iv) exemption allows police departments to protect the anonymity of persons who\nprovide them with information. Chicago Alliance for Neighborhood Safety v. Town of Chicago,\n348 Ill. App. 3d 188, 200-01 (1st Dist. 2004) (names and addresses of beat meeting participants\nproperly redacted because they provided information to police department). Therefore, the\nPolice Department may withhold complainants' names and other personally-identifying\n\n4Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2018)) defines \"private information\" as:\n\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information,\npasswords or other access codes, medical records, home or\npersonal telephone numbers, and personal email addresses.\nPrivate information also includes home address and personal\nlicense plates, except as otherwise provided by law or when\ncompiled without possibility of attribution to any person.\n\nSection 7(1)(c) defines \"unwarranted invasion of personal privacy\" as:\n\nthe disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that\nbears on the public duties of public employees and officials\nshall not be considered an invasion of personal privacy.\n\nMs. Lisa A. Farrington\nJuly 1, 2021\nPage 5\n\ninformation pursuant to section 7(1)(d)(iv).° To the extent that the contents of the complainants'\nstatements would unavoidably disclose those individuals’ identities, the Police Department may\nalso withhold those statements. Copley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421,\n426 (4th Dist. 1994) (Witness statements may be withheld in their entireties only if disclosure of\nthe contents \"would necessarily result in the disclosure of the identity of that source\" of the\ninformation and, therefore, \"redaction of the [records] cannot be meaningfully accomplished.\").\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have\nquestions, you may contact me Shannon.Barnaby@lllinois.gov.\n\nVery truly yours,\n\nAssistant Attorney General\nPublic Access Bureau\n\n56184 f 71dvi improper pd\n\n®This office, however, has previously determined that sections 7(1)(c) and 7(1)(d)(iv) generally do\nnot encompass information identifying public employees, such as school personnel, who provided the police with\ninformation that they obtained while performing public duties. See, for example, lll. Att'y Gen. PAC Req. Rev. Ltr.\n39699, issued July 10, 2018, at 4-7.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports naming the requester","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56184/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 1, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Lisa A. Farrington\n\nStaff Attorney/FOIA Officer\nVillage of Arlington Heights\n\n[street address redacted for site publication -- see original PDF]\nlfarrington@vah.com\n\nRE: FOIA Request for Review — 2018 PAC 56184\nDear MB and Ms. Farrington:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the Village of Arlington Heights Police Department (Police\nDepartment) improperly withheld records responsive to Es November 29, 2018,\nFOIA request in their entireties.\n\nOn that date, bubmitted a FOIA request to the Police Department\nseeking copies of all police reports related to his name. On December 13, 2018, the Police\nDepartment denied the request in its entirety pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(d)(vi)\nof FOIA (5 ILCS 140/7(1)(b), (1)(c), (1)(d)(vi) (West 2018)). J Request for Review\ndisputed the denial of his request.\n\nOn December 27, 2018, this office sent a copy of the Request for Review to the\nPolice Department and asked it to provide copies of the records responsive to EEE request,\nfor our confidential review, along with a detailed explanation of the factual and legal bases for its\n\nresponse. On January 18, 2019, the Police Department provided the requested materials and\nboth a confidential and redacted written answer. On January 22, 2019, this office forwarded a\ncopy of the Police Department's redacted answer to SE he did not reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2018). Section 3(a) of FOIA (5 ILCS 140/3(a) (West 2018)) further provides:\n\"Each public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from\ndisclosure contained in section 7 of FOIA (5 ILCS 140/7 (West 2018)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees of Southern Ilinois University, 176 Ill. 2d 401, 407\n(1997).\n\nSection 7(1)(d)(vi) of FOIA exempts from disclosure:\n\n(d) Records in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\n\noh OR ok\n\n(vi) endanger the life or physical safety of law enforcement\npersonnel or any other person\n\nUnder FOIA, \"[t]o meet its burden\" for withholding responsive records, \"the\npublic body must provide a detailed justification for its claim of exemption, addressing the\nrequested records specifically and in a manner allowing for adequate adversarial testing.\"\nRockford Police Benevolent and Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 150 (2d\nDist. 2010). Conclusory statements are insufficient to demonstrate that law enforcement records\nare exempt from disclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74-77\n(1st Dist. 2009). Rather, a public body must demonstrate how disclosure of records would\nendanger the life or physical safety of law enforcement personnel pursuant to section 7(1)(d)(vi)\nof FOIA. See, for example, Ill. Att'y Gen. PAC Reg. Rev. Ltr. 39298 39299, issued December 6,\n2017 (conclusory explanation as to why disclosure of information concerning technology\npurchased by police department would endanger the life or physical safety of officers fell short\n\nTo demonstrate that records are exempt under the provision of Federal FOIA that\ncorresponds to section 7(1)(d)(vi),! \"[a]n agency must identify and explain the reasonable threat\nof harm imposed on the individuals identified in the records the agency is seeking to exempt.\"\nKing v. United States Department of Justice, 245 F. Supp. 3d 153, 162 (D.D.C. 2017);” see also\nCenter for National Security Studies v. United States Department of Justice, 331 F.3d 918, 948\n(D.C. Cir. 2003) (records not exempt because agency did identify reasons that disclosure of\ninformation would pose a threat). This office has previously determined that section 7(1)(d)(vi)\ncould be applied to highly specific information, the disclosure of which would provide the public\nwith information that could be exploited to cause identifiable harm to certain individuals. See Ill.\nAtt'y Gen. PAC Rev. Ltr. 49142, issued November 21, 2017, at 4 (concluding that disclosure of\nthe specific duty times and locations of correctional officers \"could endanger the life or physical\nsafety of the correctional officers monitoring the jail by identifying their locations and potential\nvulnerable spots where officers are less supported.\"); Ill. Att'y Gen. PAC Rev. Ltr. 39298, 39299,\nissued December 6, 2017, at 4-5 (noting that this office has consistently determined that\ninformation that could be used to identify undercover officers is exempt from disclosure). By\ncontrast, this office has found that public bodies failed to meet their burden under section\n7(1)(d)(vi) when their assertions were conclusory and they did not explain, nor was it apparent,\nhow disclosure would endanger any individual. See Ill. Att'y Gen. PAC Rev. Ltr. 38173, issued\nFebruary 13, 2018, at 3 (determining that city had failed to demonstrate how disclosure of a use\nof force report would endanger any individual's safety); Ill. Att'y Gen. PAC Rev. Ltr. 25887,\nissued January 11, 2019, at 3 (concluding that police department failed to identify specific\ncircumstances from which this office could conclude that disclosure of individual police officers'\nphotographs would endanger officers’ lives or physical safety).\n\nThe Police Department's answer to this office indicated that it withheld the\nrecords responsive to HE equest pursuant to section 7(1)(d)(vi) of FOIA. In its\nconfidential answer to this office, the Police Department provided additional information\nexplaining its reliance on this provision. Because the Police Department provided its explanation\nconfidentially, this office is prohibited from further disclosing that information.*> However, this\noffice has determined that the Police Department's answer failed to meet its burden of\nestablishing that the responsive police reports would endanger the life or physical safety of law\n\n‘Exemption 7(F) of Federal FOIA (5 U.S.C. § 552(b)(7)(F) (2012)) exempts from disclosure\nrecords that \"could reasonably be expected to endanger the life or physical safety of any individual.\"\n\nBecause Illinois’ FOIA statute is based on the federal FOIA statute, decisions construing the\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v.\n\nenforcement personnel, or any other person. Accordingly, this office concludes that the Police\nDepartment improperly withheld the reports in their entirety under section 7(1)(d)(vi).\n\nThis office requests that the Police Department furnish HE with copies of\nthe records responsive to his request. The Police Department may permissibly redact from those\nrecords \"private information\" under section 7(1)(b) of FOIA* The Police Department may also\nredact, pursuant to 7(1)(c) of FOIA,* highly personal information that would constitute an\nunwarranted invasion of personal privacy if disclosed. Examples of such information includes\nindividuals' birthdates, races, and the names of third parties who were mentioned incidentally in\nthe reports. In addition, the Police Department may redact the name, date of birth, and other\nidentifying information of any juvenile pursuant to section 7(1)(c) of FOIA. Further, section\n7(1)(d)(iv) of FOTA (5 ILCS 140/7(1)(d)(iv) (West 2018)) exempts from disclosure information\nthat would \"unavoidably disclose the identity of a confidential source, confidential information\nfurnished only by the confidential source, or persons who file complaints with or provide\ninformation to administrative, investigative, law enforcement, or penal agencies.\" The\n7(1)(d)(iv) exemption allows police departments to protect the anonymity of persons who\nprovide them with information. Chicago Alliance for Neighborhood Safety v. Town of Chicago,\n348 Ill. App. 3d 188, 200-01 (1st Dist. 2004) (names and addresses of beat meeting participants\nproperly redacted because they provided information to police department). Therefore, the\nPolice Department may withhold complainants' names and other personally-identifying\n\n4 Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2018)) defines \"private information\" as:\n\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information,\npasswords or other access codes, medical records, home or\npersonal telephone numbers, and personal email addresses.\nPrivate information also includes home address and personal\nlicense plates, except as otherwise provided by law or when\ncompiled without possibility of attribution to any person.\n\nSection 7(1)(c) defines \"unwarranted invasion of personal privacy\" as:\n\nthe disclosure of information that is highly personal or\n\ninformation pursuant to section 7(1)(d)(iv).° To the extent that the contents of the complainants'\nstatements would unavoidably disclose those individuals’ identities, the Police Department may\nalso withhold those statements. Copley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421,\n426 (4th Dist. 1994) (Witness statements may be withheld in their entireties only if disclosure of\nthe contents \"would necessarily result in the disclosure of the identity of that source\" of the\ninformation and, therefore, \"redaction of the [records] cannot be meaningfully accomplished.\").\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have\nquestions, you may contact me Shannon.Barnaby@lllinois.gov.\n\nVery truly yours,\n\nAssistant Attorney General\nPublic Access Bureau\n\n56184 f 71dvi improper pd\n\n®This office, however, has previously determined that sections 7(1)(c) and 7(1)(d)(iv) generally do\nnot encompass information identifying public employees, such as school personnel, who provided the police with\ninformation that they obtained while performing public duties. See, for example, lll. Att'y Gen. PAC Req. Rev. Ltr.\n39699, issued July 10, 2018, at 4-7."}
{"id":926,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-07-19","case_number":null,"request_numbers":["56194"],"title":"Village of Lincolnwood improperly withheld settlement agreements held by private contractor","filename":"56194, issued July 19, 2021.pdf","rel_path":null,"word_count":1865,"summary":"The requester sought settlement agreements held by a third-party contractor providing fire and paramedic services to the Village of Lincolnwood, which the Village initially denied. The PAC determined that because the records relate to the performance of a governmental function, they are public records subject to disclosure.","plain_summary":"A journalist requested settlement agreements involving a company hired by the Village of Lincolnwood to provide emergency services. The Village claimed it didn't have to provide them because the contractor held the documents, but the Attorney General's office ruled that because the records concern the contractor's performance of public duties, the Village must obtain and release them. This reinforces that public bodies cannot hide records simply by having a private contractor hold them.","holding":"The Village of Lincolnwood improperly withheld settlement agreements held by its contracted service provider that relate to the performance of a governmental function.","legal_question":"Whether settlement agreements held by a private contractor performing a governmental function for a public body constitute public records under FOIA section 7(2).","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Lincolnwood","requesting_party":"Mr. Jonah Meadows (Patch Media)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought settlement agreements related to an employment dispute involving a third-party paramedic services contractor.","ocr_status":"ok","ocr_quality":93.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_2/56194%2C%20issued%20July%2019%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["settlement agreement","contractor records","public records definition","government function"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 19, 2021\n\nVia electronic mail\n\nMr. Jonah Meadows\n\nNorth Shore Editor\n\nPatch Media\njonah.meadows@patch.com\n\nVia electronic mail\n\nMs. Carrie Dick\n\nExecutive Secretary/FOIA Officer\nVillage of Lincolnwood\n\n[street address redacted for site publication -- see original PDF]\ncdick@Iwd.org\n\nRE: FOIA Request for Review — 2018 PAC 56194\nDear Mr. Meadows and Ms. Dick:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the Village of Lincolnwood (Village) is obligated under\nFOIA to disclose settlement agreements responsive to Mr. Jonah Meadows' December 18, 2018,\nFOIA request that are in the possession or custody of its contracted fire protection and paramedic\nservices.\n\nOn December 18, 2018, Mr. Meadows, on behalf of Patch Media, submitted a\nFOIA request to the Village seeking copies of: \"[a]ny settlement agreement or agreements\nbetween Paramedic Services of Illinois or any of its agents and [name] with regard to 1:17-CV-\n6301\"! On December 20, 2018, the Village responded that \"[t]he Specified Records are neither\n\n'R-mail from Jonah Meadows, North Shore Editor, Patch, to Lincolnwood FOIA Officer\n(December 18, 2018).\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nprepared by or for the Village, nor have the Specified Records been or are being used by, or\nreceived by, the Village.\"” Mr. Meadows' Request for Review disputed the Village's response.\nSpecifically, Mr. Meadows contended that the responsive records in the possession of Paramedic\nServices of Illinois (PSI) are the Village's public records pursuant to section 7(2) of FOIA (5\nILCS 140/7(2) (West 2018)) because although PSI is a private company, it was contracted by the\nVillage to provide fire department services.\n\nOn January 2, 2019, this office sent a copy of the Request for Review to the\nVillage and asked it to provide a written response to Mr. Meadows' allegations and to address the\napplicability of section 7(2) of FOIA to the requested records in the physical custody of PSI On\nJanuary 11, 2019, counsel for the Village submitted both confidential and non-confidential\nresponses. On January 14, 2019, this office forwarded the Village's non-confidential response to\nMr. Meadows. He replied on January 25, 2019, maintaining that the denial was improper.\n\nDETERMINATION\nSection 7(2) of FOIA provides:\n\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\nThis provision was created to \"respond to the growing concern related to the privatization of\ngovernment responsibilities and its impact on the right of public information access and\ntransparency.\" Better Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, 962, 89\nN.E.3d 376, 390 (2017).\n\nIn its answer to this office, the Village asserted that for a record to be subject to\ndisclosure under section 7(2), it first must be a \"public record\" as defined by section 2(c) of\n\n*Letter from Carrie Dick, Freedom of Information Officer, Village of Lincolnwood to Jonah\nMeadows, Patch (December 20, 2018).\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nFOIA (5 ILCS 140/2(c) (West 2018)).? According to the background information provided by\nthe Village, the responsive settlement agreement concerns a federal complaint filed by a former\nemployee of PSI concerning PSI's termination of his employment. The Village contended that\nthe settlement agreement in question does not qualify as a \"public record\" because it was not\nprepared by, used by, or within the physical possession of the Village at the time of Mr.\nMeadows' request. The Illinois Supreme Court, however, has concluded that records in the\npossession of a private entity that has entered into a contract with a public body fall within the\nscope of 7(2) if: (1) the private entity possesses the records and (2) has contracted with the\npublic body to perform a \"governmental function\" on the public body's behalf, and, (3) the\nrequested records are \"directly related\" to that governmental function. Rushton v. Department of\nCorrections, 2019 IL 124552, §41, 63, 160 N.E.3d 929, 942-43 (2019). The Illinois Supreme\nCourt has construed the term \"governmental function\" for purposes of section 7(2) in accordance\nwith the Black's Law Dictionary definition of that term: \"a government agency's conduct that is\nexpressly or impliedly mandated or authorized by constitution, statute, or other law and that is\ncarried out for the benefit of the general public.\" ///inois High School Ass'n, 2017 IL 121124,\n63, 89 N.E.3d at 390 (quoting Black's Law Dictionary 812 (10th ed. 2014)).\n\nIn this instance, the Village contracted with PSI to provide fire protection and\nemergency medical services on behalf of the Village, including an agreement that PSI would\nfurnish the \"personnel, leadership and professionalism necessary to provide said services.\"*\nUnder section 11-5-7 of the Illinois Municipal Code (65 ILCS 5/11-5-7 (West 2018)), \"[t]he\ncorporate authorities of each municipality may license and regulate and establish standards for\nthe operation of ambulances. The corporate authorities of each municipality may either contract\nfor the operation of or operate ambulances as a municipal service.\" Section 11-6-1 of the Illinois\nMunicipal Code (65 ILCS 5/11-6-1 (West 2018)), provides, in pertinent part, \"[t]he corporate\nauthorities of each municipality may provide and operate fire stations, and all material and\nequipment that is needed for the prevention and extinguishment of fires.\" The administration of\n\nSection 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda,\nbooks, papers, maps, photographs, microfilms, cards, tapes,\nrecordings, electronic data processing records, electronic\ncommunications, recorded information and all other\ndocumentary materials pertaining to the transaction of public\nbusiness, regardless of physical form or characteristics, having\nbeen prepared by or for, or having been or being used by,\nreceived by, in the possession of, or under the control of any\npublic body.\n\n‘Agreement for Fire Protection and Emergency Medical Services, Village of Lincolnwood,\nIllinois, Paramedic Services of Illinois, Inc., §2, April 19, 2016.\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nfire protection and paramedic services is authorized by statute and carried out for the benefit of\nthe general public; therefore, they are governmental functions of the Village.\n\nThe Village's response to this office, however, argued that the settlement\nagreement:\n\ndoes not directly relate to a government function; rather the\nsettlement agreement involves employment claims made by a\ncontractor's employee against the contractor. Even [if] it could be\nargued that PSI's employment dispute somehow relates to a\ngovernment function performed by PSI on the theory that PSI\nassists the Village in providing a government function, and PSI's\nformer employee was the contractor's agent in providing such\nservices, the settlement agreement regarding the PSI's former\nemployee's employment claims certainly does not directly relate\nthe to the government function.°\n\nFOIA does not define the term \"directly relates.\" The Illinois Appellate Court has\nrecognized that this modifier limits the scope of section 7(2) of FOIA: \"This requirement makes\nclear the legislature's intention that the general public may not access all of a third party's records\nmerely because it has contracted with a public body to perform a governmental function. FOIA\nis not concerned with private affairs.\" Chicago Tribune v. College of DuPage, 2017 IL App (2d)\n160274, 953, 79 N.E.3d 694, 609 (2017). Courts have held that contracts and records that reflect\nthe governmental function an entity has been hired to perform and that shed light on its\nperformance directly relate to a governmental function and therefore are subject to disclosure\nunder section 7(2) of FOIA. College of DuPage, 2017 IL App (2d) 160274, 55, 79 N.E.3d at\n709 (affirming trial court decision that federal grand jury subpoena directly related to\ngovernmental function because college never asserted the subpoena concerned matters other than\nprivate development duties that a foundation had been contracted to perform for the college).\n\nIn Rushton, the Illinois Supreme Court found that a settlement agreement between\nWexford and the estate of an inmate who died while receiving medical care from Wexford\nduring his confinement at an Illinois Department of Corrections (IDOC) prison was a public\nrecord of IDOC for the purpose of FOIA. Wexford had argued that the settlement agreement did\nnot \"directly relate\" to its contracted governmental function of providing medical care to IDOC\ninmates, but instead, was merely \"a business decision to settle a legal dispute between private\nparties.\" Rushton, 2019 IL 124552, 46, 160 N.E.3d at 932. The court rejected this argument,\n\nSLetter from Benjamin L. Schuster, Holland & Knight LLP, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau (January 11, 2019), at 4 (Emphasis in original).\n\nMr. Jonah Meadows\nMs. Carrie Dick\nJuly 19, 2021\n\nPage 2\n\nstating, \"[t]he settlement agreement directly relates to performance of that governmental\nfunction. It is the settlement of a claim that Wexford's inadequate medical care—its alleged\ninadequate performance of its governmental function—led to the death of an inmate. The\nconnection is neither indirect nor tangential. It is direct and obvious.\" (Emphasis in original.)\nRushton, 2019 IL 124552, 931, 160 N.E.3d at 939-40.\n\nAlthough not strictly analogous to the Rushton case, the settlement agreement\nsought by Mr. Meadows is directly related to the governmental function that the Village\ncontracted with PSI to perform. In the underlying lawsuit, PSI's former employee alleged PSI's\nadministration of the Village's fire department involved widespread sexual harassment of a\nfemale employee, retaliation against a whistleblower, and \"ongoing abuse of prescription drugs\nby a superior officer while on duty that put the health and safety of patients, coworkers and the\npublic at risk.\"° Regardless of whether those allegations have any merit, the settlement of the\nemployment dispute directly relates to PSI's working environment for the governmental function\nof providing fire protection and emergency medical services for the Village. If the work\nenvironment was hostile and unsafe, as alleged, such circumstances could clearly affect the\nquality of the services PSI was providing to the Village. Accordingly, this office concludes that\nthe requested settlement agreement is considered to be the Village's record under section 7(2) of\nFOIA and is subject to disclosure under FOIA. This office requests that the Village issue a\nsupplemental response to Mr. Meadow's request and disclose copies of the responsive settlement\nagreement.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This matter is closed. If you have questions, you\nmay contact me Shannon.Barnaby@lllinois.gov or (312) 550-4480.\n\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56194 f 72 improper mun\n\n°Weller v. Paramedic Services of Illinois, INC., No. 1:17-cv-06301 (N.D. Ill. filed 11/27/17), at 1.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Settlement agreements with a paramedic services contractor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56194/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 19, 2021\n\nVia electronic mail\n\nMr. Jonah Meadows\n\nNorth Shore Editor\n\nPatch Media\njonah.meadows@patch.com\n\nVia electronic mail\n\nMs. Carrie Dick\n\nExecutive Secretary/FOIA Officer\nVillage of Lincolnwood\n\n[street address redacted for site publication -- see original PDF]\ncdick@Iwd.org\n\nRE: FOIA Request for Review — 2018 PAC 56194\nDear Mr. Meadows and Ms. Dick:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the Village of Lincolnwood (Village) is obligated under\nFOIA to disclose settlement agreements responsive to Mr. Jonah Meadows' December 18, 2018,\nFOIA request that are in the possession or custody of its contracted fire protection and paramedic\nservices.\n\nOn December 18, 2018, Mr. Meadows, on behalf of Patch Media, submitted a\nFOIA request to the Village seeking copies of: \"[a]ny settlement agreement or agreements\nbetween Paramedic Services of Illinois or any of its agents and [name] with regard to 1:17-CV-\n6301\"! On December 20, 2018, the Village responded that \"[t]he Specified Records are neither\n\nprepared by or for the Village, nor have the Specified Records been or are being used by, or\nreceived by, the Village.\"” Mr. Meadows' Request for Review disputed the Village's response.\nSpecifically, Mr. Meadows contended that the responsive records in the possession of Paramedic\nServices of Illinois (PSI) are the Village's public records pursuant to section 7(2) of FOIA (5\nILCS 140/7(2) (West 2018)) because although PSI is a private company, it was contracted by the\nVillage to provide fire department services.\n\nOn January 2, 2019, this office sent a copy of the Request for Review to the\nVillage and asked it to provide a written response to Mr. Meadows' allegations and to address the\napplicability of section 7(2) of FOIA to the requested records in the physical custody of PSI On\nJanuary 11, 2019, counsel for the Village submitted both confidential and non-confidential\nresponses. On January 14, 2019, this office forwarded the Village's non-confidential response to\nMr. Meadows. He replied on January 25, 2019, maintaining that the denial was improper.\n\nDETERMINATION\nSection 7(2) of FOIA provides:\n\nA public record that is not in the possession of a public\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental function on behalf of the\npublic body, and that directly relates to the governmental function\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act.\n\nThis provision was created to \"respond to the growing concern related to the privatization of\ngovernment responsibilities and its impact on the right of public information access and\ntransparency.\" Better Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, 962, 89\nN.E.3d 376, 390 (2017).\n\nIn its answer to this office, the Village asserted that for a record to be subject to\ndisclosure under section 7(2), it first must be a \"public record\" as defined by section 2(c) of\n\nFOIA (5 ILCS 140/2(c) (West 2018)).? According to the background information provided by\nthe Village, the responsive settlement agreement concerns a federal complaint filed by a former\nemployee of PSI concerning PSI's termination of his employment. The Village contended that\nthe settlement agreement in question does not qualify as a \"public record\" because it was not\nprepared by, used by, or within the physical possession of the Village at the time of Mr.\nMeadows' request. The Illinois Supreme Court, however, has concluded that records in the\npossession of a private entity that has entered into a contract with a public body fall within the\nscope of 7(2) if: (1) the private entity possesses the records and (2) has contracted with the\npublic body to perform a \"governmental function\" on the public body's behalf, and, (3) the\nrequested records are \"directly related\" to that governmental function. Rushton v. Department of\nCorrections, 2019 IL 124552, §41, 63, 160 N.E.3d 929, 942-43 (2019). The Illinois Supreme\nCourt has construed the term \"governmental function\" for purposes of section 7(2) in accordance\nwith the Black's Law Dictionary definition of that term: \"a government agency's conduct that is\nexpressly or impliedly mandated or authorized by constitution, statute, or other law and that is\ncarried out for the benefit of the general public.\" ///inois High School Ass'n, 2017 IL 121124,\n63, 89 N.E.3d at 390 (quoting Black's Law Dictionary 812 (10th ed. 2014)).\n\nIn this instance, the Village contracted with PSI to provide fire protection and\nemergency medical services on behalf of the Village, including an agreement that PSI would\nfurnish the \"personnel, leadership and professionalism necessary to provide said services.\"*\nUnder section 11-5-7 of the Illinois Municipal Code (65 ILCS 5/11-5-7 (West 2018)), \"[t]he\ncorporate authorities of each municipality may license and regulate and establish standards for\nthe operation of ambulances. The corporate authorities of each municipality may either contract\nfor the operation of or operate ambulances as a municipal service.\" Section 11-6-1 of the Illinois\nMunicipal Code (65 ILCS 5/11-6-1 (West 2018)), provides, in pertinent part, \"[t]he corporate\nauthorities of each municipality may provide and operate fire stations, and all material and\nequipment that is needed for the prevention and extinguishment of fires.\" The administration of\n\nSection 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda,\nbooks, papers, maps, photographs, microfilms, cards, tapes,\nrecordings, electronic data processing records, electronic\ncommunications, recorded information and all other\ndocumentary materials pertaining to the transaction of public\nbusiness, regardless of physical form or characteristics, having\nbeen prepared by or for, or having been or being used by,\n\nfire protection and paramedic services is authorized by statute and carried out for the benefit of\nthe general public; therefore, they are governmental functions of the Village.\n\nThe Village's response to this office, however, argued that the settlement\nagreement:\n\ndoes not directly relate to a government function; rather the\nsettlement agreement involves employment claims made by a\ncontractor's employee against the contractor. Even [if] it could be\nargued that PSI's employment dispute somehow relates to a\ngovernment function performed by PSI on the theory that PSI\nassists the Village in providing a government function, and PSI's\nformer employee was the contractor's agent in providing such\nservices, the settlement agreement regarding the PSI's former\nemployee's employment claims certainly does not directly relate\nthe to the government function.°\n\nFOIA does not define the term \"directly relates.\" The Illinois Appellate Court has\nrecognized that this modifier limits the scope of section 7(2) of FOIA: \"This requirement makes\nclear the legislature's intention that the general public may not access all of a third party's records\nmerely because it has contracted with a public body to perform a governmental function. FOIA\nis not concerned with private affairs.\" Chicago Tribune v. College of DuPage, 2017 IL App (2d)\n160274, 953, 79 N.E.3d 694, 609 (2017). Courts have held that contracts and records that reflect\nthe governmental function an entity has been hired to perform and that shed light on its\nperformance directly relate to a governmental function and therefore are subject to disclosure\nunder section 7(2) of FOIA. College of DuPage, 2017 IL App (2d) 160274, 55, 79 N.E.3d at\n709 (affirming trial court decision that federal grand jury subpoena directly related to\ngovernmental function because college never asserted the subpoena concerned matters other than\nprivate development duties that a foundation had been contracted to perform for the college).\n\nIn Rushton, the Illinois Supreme Court found that a settlement agreement between\nWexford and the estate of an inmate who died while receiving medical care from Wexford\nduring his confinement at an Illinois Department of Corrections (IDOC) prison was a public\nrecord of IDOC for the purpose of FOIA. Wexford had argued that the settlement agreement did\nnot \"directly relate\" to its contracted governmental function of providing medical care to IDOC\ninmates, but instead, was merely \"a business decision to settle a legal dispute between private\nparties.\" Rushton, 2019 IL 124552, 46, 160 N.E.3d at 932. The court rejected this argument,\n\nstating, \"[t]he settlement agreement directly relates to performance of that governmental\nfunction. It is the settlement of a claim that Wexford's inadequate medical care—its alleged\ninadequate performance of its governmental function—led to the death of an inmate. The\nconnection is neither indirect nor tangential. It is direct and obvious.\" (Emphasis in original.)\nRushton, 2019 IL 124552, 931, 160 N.E.3d at 939-40.\n\nAlthough not strictly analogous to the Rushton case, the settlement agreement\nsought by Mr. Meadows is directly related to the governmental function that the Village\ncontracted with PSI to perform. In the underlying lawsuit, PSI's former employee alleged PSI's\nadministration of the Village's fire department involved widespread sexual harassment of a\nfemale employee, retaliation against a whistleblower, and \"ongoing abuse of prescription drugs\nby a superior officer while on duty that put the health and safety of patients, coworkers and the\npublic at risk.\"° Regardless of whether those allegations have any merit, the settlement of the\nemployment dispute directly relates to PSI's working environment for the governmental function\nof providing fire protection and emergency medical services for the Village. If the work\nenvironment was hostile and unsafe, as alleged, such circumstances could clearly affect the\nquality of the services PSI was providing to the Village. Accordingly, this office concludes that\nthe requested settlement agreement is considered to be the Village's record under section 7(2) of\nFOIA and is subject to disclosure under FOIA. This office requests that the Village issue a\nsupplemental response to Mr. Meadow's request and disclose copies of the responsive settlement\nagreement.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This matter is closed. If you have questions, you\nmay contact me Shannon.Barnaby@lllinois.gov or (312) 550-4480.\n\nVery truly yours,\n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56194 f 72 improper mun\n\n°Weller v. Paramedic Services of Illinois, INC., No. 1:17-cv-06301 (N.D. Ill. filed 11/27/17), at 1."}
{"id":927,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-12-09","case_number":null,"request_numbers":["56208"],"title":"Community High School District No. 99 Lawfully Withheld Sexual Harassment Training Under 7(1)(g)","filename":"56208, issued December 9, 2022.pdf","rel_path":null,"word_count":1305,"summary":"The requester challenged Community High School District No. 99's denial of a PowerPoint presentation regarding sexual harassment training, claiming it was exempt under FOIA section 7(1)(g). The PAC determined the District properly withheld the record as it constituted trade secrets or commercial information.","plain_summary":"A requester asked for a school district's sexual harassment training presentation, but the district refused to release it, arguing it contained confidential trade secrets. The Attorney General's office reviewed the document and agreed that the district was legally allowed to keep the information private. As a result, the case is closed and the records will not be released.","holding":"The District properly withheld the requested PowerPoint presentation under section 7(1)(g) of FOIA.","legal_question":"Whether a PowerPoint presentation used for staff training constitutes 'trade secrets and commercial or financial information' exempt from disclosure under 5 ILCS 140/7(1)(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"Community High School District No. 99","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"The requested record was a PowerPoint presentation used during a sexual harassment training session for school district staff.","ocr_status":"ok","ocr_quality":93.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/56208%2C%20issued%20December%209%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","sexual harassment training","school district","exemption 7(1)(g)"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 9, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Crowley\nFranczek\n300 South Wacker Drive,  Suite 3400\nChicago,  Illinois 60606\nbpc@franczek.com\n\nRE:  FOIA Request for Review –  2018 PAC 56208\n\nDear\n\nand Mr. Crowley:  \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   \n\nOn December 21, 2018, \n\nsubmitted a Request\n\nfor Review to\n\nthe Public Access Bureau alleging that Community High School District No. 99 (District) \nimproperly withheld a copy of a PowerPoint presentation that an attorney presented during a\nin the workplace . 1 On\nDistrict staff in-service training session regarding sexual harassment\nJanuary 3, 2019, this office forwarded a copy of the Request for Review to the District and asked\nfor a copy of the withheld presentation along with an explanation for its claim that the record\nwas exempt under section 7(1)(g)  of FOIA. 2 On February 1, 2019,  counsel\n\nfor the District\n\n1\n\nsubmitted a six-part FOIA request to District,  however,  his Request for Review did not\n\ndispute the response to the other five portions of his FOIA request.   T herefore,  the scope of this determination is\nlimited to the District' s response to the above- mentioned part of his request.     \n\n25 ILCS 140/ 7(1)(g) ( West 2020). \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782- 1090 • TTY: (877) 844 -5461 • Fax: ( 217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 • TTY: ( 800) 964- 3013 • Fax: ( 312)  814 -3806\n601 South University Ave., Carbondale,  Illinois 62901 • (618) 529 -6400 •  TTY: (877) 675-9339 •  Fax: ( 618) 529- 6416\n\n\fMr. Brian Crowley\nDecember 9, 2022\nPage 2\n\nprovided those materials.   The District's written answer was forwarded to\nreply.        \n\nhe did not\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/1.2 (West 2020).  Exemptions to disclosure are to be narrowly construed.   Lieber v. Board of\nTrustees of Southern Illinois Univ ersity,  176 Ill. 2d 401,  408 ( 1997). \n\nfrom\n\nSection 7(1)(g) of FOIA exempts from disclosure:   \n\ninformation are furnished under a claim\n\nTrade secrets and commercial or financial\n\ninformation\nobtained from a person or business where the trade secrets or\ncommercial or financial\nthat they are proprietary,  privileged or confidential,  and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness,  and only insofar as the claim directly applies to the\nrecords requested.    \n\nIn order to be exempt from disclosure under section 7(1)(g): \n\ninformation, ( 2) that was obtained from a person or\n\nT]he document must contain ( 1) a trade secret, commercial,  or\nfinancial\nbusiness where the trade secrets or commercial or financial\ninformation are furnished under a claim that they are either ( a) \nproprietary, ( b)  privileged,  or (c)  confidential,  and ( 3)  that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness.   Chicago v. Janssen Pharmaceuticals, \n1st) 150870 ¶27, 78 N.E.3d at 455 (2017).   \n\nInc.,  2017 IL App\n\nDemonstrating competitive harm requires a showing \"' by specific factual or evidentiary material\nthat:  ( 1) the person or entity from which information was obtained actually faces competition; \nand ( 2) substantial harm to a competitive position would likely result from disclosure of the\ninformation in the agency' s records.'\"   Cooper v. Department of the Lottery,  266 Ill.  App.  3d\n1007, 1013 (1st Dist.  1994) (quoting Calhoun v. Lyng, 864 F.2d 34, 36 (5th Cir. 1988)). \n\nsubmitted, \nDistrict's written answer to this office,  and the responsive PowerPoint presentation.   In its\n\nThe Public Access Bureau has reviewed the materials\n\nthe\n\n\fMr. Brian Crowley\nDecember 9, 2022\nPage 3\n\nfrom disclosure pursuant\n\nresponse to this office,  the District asserted the withheld PowerPoint presentation constituted\nto section 7(1)(g)  of FOIA.   The District\ntrade secret material exempt\nexplained that it retained an attorney from the Franczek law firm to provide sexual harassment\nprevention training to all District staff.   The District\npartners and associates regularly provide such trainings for a fee for client school districts \" 3 and\nasserted that the presentation was furnished under a claim that the information was proprietary, \nprivileged,  and confidential.   As such,  the District contended that the records were confidential\nproprietary records of Franczek, \ncompetitive harm, stating: \n\nthe release of which would cause Franczek substantial\n\nindicated that this attorney \" and her law\n\nHere,  the materials Franczek prepared and provided to the District\nwould,  if made public,  provide a free roadmap to Franczek's\ncompetitors about how to comply with sexual harassment\nregulations\ncompetitors would have no need to undertake time consuming\nresearch,  analysis,  and preparation of the PowerPoint\nthe same document\nto FOIA the record.[4 ] \n\nto other school districts.  They would just have\n\nthat govern the educational\n\nindustry.   Franczek' s\n\nto provide\n\nlaws and\n\nlaws governing sexual harassment,  as well as the District's polices.  \n\nBased on this office's confidential review,  it appears that the disclosure of the\nrequested PowerPoint presentation would cause competitive harm to Franczek.   The training\npresentation contains detailed information concerning sexual harassment\nas the Illinois and federal\nThe document also reflects the substance of Franczek' s research,  analysis,  and opinions\nconcerning how the District' s staff can help prevent sexual harassment at work and steps that\nDistrict should take to fulfill\nits compliance obligations under those laws and its policy.   The\ndisclosure of this training material,  via FOIA,  could easily be exploited by competitors by\nallowing competing law firms or consultants\nto slightly adapt the training for other school\ndistricts without sustaining the considerable effort that Franczek has incurred.   See generally\n100Reporters LLC v. United States Depart ment of Justice,  248 F. Supp.  3d 115,  140 ( D.D.C. \n2017) (determining compliance and training materials exempt from disclosure under federal\n\nin the workp lace,  such\n\nthe\n\nAccess Bureau,  Illinois Attorney General ( February 1, 2019),  at 2.  \n\n3Letter from Jaqueline Wernz,  Franczek, \n\nto Shannon Barnab y,  Assistant Attorney General,  Public\n\n4Letter from Jaqueline Wernz,  Franczek, \n\nto Shannon Barnaby,  Assistant Attorney General,  Public\n\nAccess Bureau,  Illinois Attorney General ( February 1, 2019),  at 3.  \n\n\fMr. Brian Crowley\nDecember 9, 2022\nPage 4\n\nFOIA5 because disclosure could cause competitive harm by providing competitors with the\nunique details necessary to comply with the regulatory laws that govern the industry without\nincurring the same costs);  Public Citizen v. United States HHS , 66 F. Supp. 3d 196, 210 (D.D.C. \n2014) (finding disclosure of FDA compliance information could pose a competitive risk because\nthe materials were, \" in a sense,  a free roadmap as to what works in pharmaceutical marketing\nwithout violating the legal framework of regulatory enforcement and laws that govern the\nindustry.\").   Therefore,  this office concludes that the District has met its burden of establishing\nthat\n\nto section 7(1)(g)  of FOIA.   \n\nfrom disclosure pursuant\n\nthe document\n\nis exempt\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   If you have any questions,  my\ne-mail address is Shannon.Barnaby@ilag.gov\n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56208 f 71g proper sd\n\n5Exemption 4 permits the withholding of \" trade secrets and commercial or financial\n\ninformatio n\n\nobtained from a person and privileged or confidential[.]\"   Federal courts'  interpretations of the exemption\nsecrets in the federal FOIA are instructive in construing section 7(1)(g).   See Roulette v.  Department of Central\nManagement Services,  141 Ill.  App.  3d 394,  400 ( 1st Dist.  1986).    \n\nfor trade\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Training presentation on sexual harassment","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56208/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 9, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Brian Crowley\nFranczek\n300 South Wacker Drive, Suite 3400\nChicago, Illinois 60606\nbpc@franczek.com\n\nRE: FOIA Request for Review – 2018 PAC 56208\n\nDear\n\nand Mr. Crowley: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn December 21, 2018, \n\nsubmitted a Request\n\nfor Review to\n\nthe Public Access Bureau alleging that Community High School District No. 99 (District) \nimproperly withheld a copy of a PowerPoint presentation that an attorney presented during a\nin the workplace. 1 On\nDistrict staff in-service training session regarding sexual harassment\nJanuary 3, 2019, this office forwarded a copy of the Request for Review to the District and asked\nfor a copy of the withheld presentation along with an explanation for its claim that the record\nwas exempt under section 7(1)(g) of FOIA. 2 On February 1, 2019, counsel\n\nfor the District\n\n1\n\nsubmitted a six-part FOIA request to District, however, his Request for Review did not\n\ndispute the response to the other five portions of his FOIA request. T herefore, the scope of this determination is\nlimited to the District's response to the above- mentioned part of his request. \n\n25 ILCS 140/ 7(1)(g) (West 2020). \n\nprovided those materials. The District's written answer was forwarded to\nreply. \n\nhe did not\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ ersity, 176 Ill. 2d 401, 408 (1997). \n\nfrom\n\nSection 7(1)(g) of FOIA exempts from disclosure: \n\ninformation are furnished under a claim\n\nTrade secrets and commercial or financial\n\ninformation\nobtained from a person or business where the trade secrets or\ncommercial or financial\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt from disclosure under section 7(1)(g): \n\ninformation, (2) that was obtained from a person or\n\nT]he document must contain (1) a trade secret, commercial, or\nfinancial\nbusiness where the trade secrets or commercial or financial\ninformation are furnished under a claim that they are either (a) \nproprietary, (b) privileged, or (c) confidential, and (3) that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\nbusiness. Chicago v. Janssen Pharmaceuticals, \n1st) 150870 ¶27, 78 N.E.3d at 455 (2017). \n\nInc., 2017 IL App\n\nDemonstrating competitive harm requires a showing \"' by specific factual or evidentiary material\nthat: (1) the person or entity from which information was obtained actually faces competition; \nand (2) substantial harm to a competitive position would likely result from disclosure of the\ninformation in the agency's records.'\" Cooper v. Department of the Lottery, 266 Ill. App. 3d\n1007, 1013 (1st Dist. 1994) (quoting Calhoun v. Lyng, 864 F.2d 34, 36 (5th Cir. 1988)). \n\nsubmitted, \nDistrict's written answer to this office, and the responsive PowerPoint presentation. In its\n\nfrom disclosure pursuant\n\nresponse to this office, the District asserted the withheld PowerPoint presentation constituted\nto section 7(1)(g) of FOIA. The District\ntrade secret material exempt\nexplained that it retained an attorney from the Franczek law firm to provide sexual harassment\nprevention training to all District staff. The District\npartners and associates regularly provide such trainings for a fee for client school districts \" 3 and\nasserted that the presentation was furnished under a claim that the information was proprietary, \nprivileged, and confidential. As such, the District contended that the records were confidential\nproprietary records of Franczek, \ncompetitive harm, stating: \n\nthe release of which would cause Franczek substantial\n\nindicated that this attorney \" and her law\n\nHere, the materials Franczek prepared and provided to the District\nwould, if made public, provide a free roadmap to Franczek's\ncompetitors about how to comply with sexual harassment\nregulations\ncompetitors would have no need to undertake time consuming\nresearch, analysis, and preparation of the PowerPoint\nthe same document\nto FOIA the record.[4 ] \n\nto other school districts. They would just have\n\nthat govern the educational\n\nindustry. Franczek's\n\nto provide\n\nlaws and\n\nlaws governing sexual harassment, as well as the District's polices. \n\nBased on this office's confidential review, it appears that the disclosure of the\nrequested PowerPoint presentation would cause competitive harm to Franczek. The training\npresentation contains detailed information concerning sexual harassment\nas the Illinois and federal\nThe document also reflects the substance of Franczek's research, analysis, and opinions\nconcerning how the District's staff can help prevent sexual harassment at work and steps that\nDistrict should take to fulfill\nits compliance obligations under those laws and its policy. The\ndisclosure of this training material, via FOIA, could easily be exploited by competitors by\nallowing competing law firms or consultants\nto slightly adapt the training for other school\ndistricts without sustaining the considerable effort that Franczek has incurred. See generally\n100Reporters LLC v. United States Depart ment of Justice, 248 F. Supp. 3d 115, 140 (D.D.C. \n2017) (determining compliance and training materials exempt from disclosure under federal\n\nin the workp lace, such\n\nthe\n\nAccess Bureau, Illinois Attorney General (February 1, 2019), at 2. \n\nFOIA5 because disclosure could cause competitive harm by providing competitors with the\nunique details necessary to comply with the regulatory laws that govern the industry without\nincurring the same costs); Public Citizen v. United States HHS, 66 F. Supp. 3d 196, 210 (D.D.C. \n2014) (finding disclosure of FDA compliance information could pose a competitive risk because\nthe materials were, \" in a sense, a free roadmap as to what works in pharmaceutical marketing\nwithout violating the legal framework of regulatory enforcement and laws that govern the\nindustry.\"). Therefore, this office concludes that the District has met its burden of establishing\nthat\n\nto section 7(1)(g) of FOIA. \n\nfrom disclosure pursuant\n\nthe document\n\nis exempt\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon.Barnaby@ilag.gov\n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n56208 f 71g proper sd\n\n5 Exemption 4 permits the withholding of \" trade secrets and commercial or financial\n\ninformatio n\n\nobtained from a person and privileged or confidential[.]\" Federal courts' interpretations of the exemption\nsecrets in the federal FOIA are instructive in construing section 7(1)(g). See Roulette v. Department of Central\nManagement Services, 141 Ill. App. 3d 394, 400 (1st Dist. 1986). \n\nfor trade"}
{"id":928,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-06-01","case_number":null,"request_numbers":["56359"],"title":"Frankfort School District improperly withheld non-disciplinary personnel complaints","filename":"56359, issued June 1, 2023.pdf","rel_path":null,"word_count":1119,"summary":"The requester sought complaints and disciplinary records regarding high school staff, which the District withheld citing the Personnel Record Review Act. The PAC determined that the District improperly withheld certain records that did not constitute formal disciplinary actions under the PRRA.","plain_summary":"A requester asked a school district for complaints and disciplinary records involving staff members. The district refused to provide them, claiming they were protected by law. The Attorney General's office reviewed the records and found that some of the documents were not actually disciplinary records, so the district must release them.","holding":"The Frankfort Community Unit School District No. 168 improperly withheld certain records that did not qualify as disciplinary actions under the Personnel Record Review Act.","legal_question":"Whether records of complaints against staff members that do not constitute formal disciplinary action are exempt from disclosure under FOIA section 7.5(q) and the Personnel Record Review Act.","disposition":"violation_found","primary_statute":["5 ILCS 140/7.5(q)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(q)"],"public_body":"Frankfort Community Unit School District No. 168","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought complaints and disciplinary records regarding high school staff members.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_q/56359%2C%20issued%20June%201%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","school district","disciplinary records","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 1, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Brandon K. Wright\nMiller, Tracy,  Braun,  Funk &  Miller, Ltd. \n316 South Charter\nP.O. Box 80\nMonticello,  Illinois 61856\nbwright@millertracy. com\n\nRE:  FOIA Request for Review –  2019 PAC 56359\n\nDear\n\nand Mr. Wright: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that Frankfort Community Unit School District No. 168\nDistrict)  improperly withheld certain records responsive to\n2018,  FOIA request. \n\nDecember 14, \n\nOn that date, \n\nsubmitted a FOIA request to the District seeking,  in\n\nrelevant part, \" any complaints lodged against [ ]  staff member[ s]  at the high school[ ] [ a] s well as\nemploye[ e]  discipline records[.]\" 1 On January 3, 2019,  the District denied this portion of\n\nrequest pursuant to section 7.5(q) of FOIA ( 5 ILCS 140/ 7.5(q) (West 2018)).   In its\n\ndenial letter, the District referenced the Personnel Record Review Act (PRRA) ( 820 ILCS 40/8\nWest 2018))  as its basis for asserting the section 7.5(q) exemption.   On January 8, 2019,  this\noffice received\n\ncompleted Request for Review contesting the District' s response. \n\n1E- mail from\n\nto [Matt]  Donkin ( December 14, 2018). \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Brendan Wright\nJune 1, 2023\nPage 2\n\nOn January 15, 2019,  this office sent a copy of the Request for Review to the\n\nDistrict and asked it to provide un-redacted copies of the withheld records for this office's\nconfidential review and a detailed explanation of the legal and factual bases for its assertion of\nsection 7.5(q) of FOIA .  On January 25, 2019,  the District provided the requested information.  \nhe replied the\nOn January 28, 2019,  this office forwarded the District' s answer to\nsame day. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2018);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.   5 ILCS 140/ 1.2 (West 2018).   The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 ( 1997).   \n\nSection 8 of the PRRA provides:  \" An employer shall review a personnel record\n\nbefore releasing information to a third party and,  except when the release is ordered to a party in\na legal action or arbitration,  delete disciplinary reports,  letters of reprimand,  or other records of\ndisciplinary action which are more than 4 years old.\"  Section 7.5(q) of FOIA exempts from\ndisclosure \"[ i]nformation prohibited from being disclosed by the Personnel Records [ sic]  Review\nAct.\"   The unambiguous language of section 8 of the PRRA precludes public bodies from using\nit as a basis to withhold records other than those that document a disciplinary action.   As the\nPublic Access Bureau has previously determined,  to be considered a record of disciplinary action\nunder the PRRA,  a record must document the imposition of discipline.   See,  for example,  Ill. \nAtt'y Gen.  PAC Req.  Rev.  Ltr. 39260,  issued February 11, 2016,  at 3 (determining that\ninvestigatory records relating to citizen complaints did not reflect \" disciplinary action\");  Ill. Att'y\nGen.  PAC Req.  Rev. Ltr. 18779,  issued June 29, 2012,  at 6.  A record that is merely related to\npotential discipline does not qualify as a record of \"disciplinary action.\"   Ill. Att'y Gen.  PAC\nReq.  Rev. Ltr. 56806,  issued March 18, 2019,  at 3-4. \n\nIn Johnson v. Joliet Police Department,  2018 IL App (3d) 170726, ¶ 10, 107\n\nN.E.3d 964, 966 ( 2018),  the Illinois Appellate Court,  Third District,  reviewed a police\ndepartment' s denial of \"'disciplinary reports,  letters of reprimand,  or other records of disciplinary\naction\"'  that were more than four years old at the time of the request.   The court held that section\n8 of the PRRA prohibits disclosure of such disciplinary records that are more than four years old.  \nJohnson,  2018 IL App (3d) 170726, ¶ 15, 107 N.E.3d at 967.  Consistent with the court' s decision\nin Johnson,  this office has previously determined that records documenting the imposition of\ndiscipline that are more than four years old at the time they are requested are exempt from\n\n\fMr. Brendan Wright\nJune 1, 2023\nPage 3\n\ndisclosure under section 7.5(q) of FOIA.  See,  for example,  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. \n53704,  issued March 13, 2019,  at 5 (concluding that public body did not improperly withhold\nrecords of disciplinary action that were more than four years old under the PRRA,  but that it\nimproperly withheld investigatory records that did not reflect disciplinary action). \n\nIn its response to this office, the District asserted that the records it withheld were\n\ndisciplinary records that were more than four years old.  This office has reviewed the withheld\nrecords and confirmed that some of the documents reflect disciplinary action that occurred more\nrequest. 2 The District did not violate FOIA by withholding\nthan four years before\nthose records pursuant to section 7.5(q).  Certain other withheld records are not responsive to\n\nrequest for \"discipline records\"  and complaints. \n\nOther withheld records,  while more than 4 years old, do not reflect disciplinary\n\naction,  but rather complaints against staff members.   Because these records are not \" disciplinary\nreports,  letters of reprimand,  or other records of disciplinary action\"  contemplated by section 8 of\nthe PRRA,  they are not exempt pursuant to section 7.5(q) of FOIA.  Accordingly,  this office\nrequests that the District disclose pages 14-15 and 32-40 of the withheld records to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at laura.harter@ilag. gov\n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n56359 f 75q proper improper sd\n\nprecludes this office from further identifying the nature of the records.  5 ILCS 140/ 9.5(c) (West 2018). \n\n2Because the District provided the records to this office confidentially,  section 9.5(c) of FOIA\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Complaints and disciplinary records of school staff","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56359/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 1, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Brandon K. Wright\nMiller, Tracy, Braun, Funk & Miller, Ltd. \n316 South Charter\nP.O. Box 80\nMonticello, Illinois 61856\nbwright@millertracy. com\n\nRE: FOIA Request for Review – 2019 PAC 56359\n\nDear\n\nand Mr. Wright: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that Frankfort Community Unit School District No. 168\nDistrict) improperly withheld certain records responsive to\n2018, FOIA request. \n\nDecember 14, \n\nOn that date, \n\nsubmitted a FOIA request to the District seeking, in\n\nrelevant part, \" any complaints lodged against [ ] staff member[ s] at the high school[ ] [ a] s well as\nemploye[ e] discipline records[.]\" 1 On January 3, 2019, the District denied this portion of\n\nrequest pursuant to section 7.5(q) of FOIA (5 ILCS 140/ 7.5(q) (West 2018)). In its\n\ndenial letter, the District referenced the Personnel Record Review Act (PRRA) (820 ILCS 40/8\nWest 2018)) as its basis for asserting the section 7.5(q) exemption. On January 8, 2019, this\noffice received\n\ncompleted Request for Review contesting the District's response. \n\n1E- mail from\n\nto [Matt] Donkin (December 14, 2018). \n\nOn January 15, 2019, this office sent a copy of the Request for Review to the\n\nDistrict and asked it to provide un-redacted copies of the withheld records for this office's\nconfidential review and a detailed explanation of the legal and factual bases for its assertion of\nsection 7.5(q) of FOIA. On January 25, 2019, the District provided the requested information. \nhe replied the\nOn January 28, 2019, this office forwarded the District's answer to\nsame day. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 8 of the PRRA provides: \" An employer shall review a personnel record\n\nbefore releasing information to a third party and, except when the release is ordered to a party in\na legal action or arbitration, delete disciplinary reports, letters of reprimand, or other records of\ndisciplinary action which are more than 4 years old.\" Section 7.5(q) of FOIA exempts from\ndisclosure \"[ i]nformation prohibited from being disclosed by the Personnel Records [ sic] Review\nAct.\" The unambiguous language of section 8 of the PRRA precludes public bodies from using\nit as a basis to withhold records other than those that document a disciplinary action. As the\nPublic Access Bureau has previously determined, to be considered a record of disciplinary action\nunder the PRRA, a record must document the imposition of discipline. See, for example, Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 39260, issued February 11, 2016, at 3 (determining that\ninvestigatory records relating to citizen complaints did not reflect \" disciplinary action\"); Ill. Att'y\nGen. PAC Req. Rev. Ltr. 18779, issued June 29, 2012, at 6. A record that is merely related to\npotential discipline does not qualify as a record of \"disciplinary action.\" Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 56806, issued March 18, 2019, at 3-4. \n\nIn Johnson v. Joliet Police Department, 2018 IL App (3d) 170726, ¶ 10, 107\n\nN.E.3d 964, 966 (2018), the Illinois Appellate Court, Third District, reviewed a police\ndepartment's denial of \"'disciplinary reports, letters of reprimand, or other records of disciplinary\naction\"' that were more than four years old at the time of the request. The court held that section\n8 of the PRRA prohibits disclosure of such disciplinary records that are more than four years old. \nJohnson, 2018 IL App (3d) 170726, ¶ 15, 107 N.E.3d at 967. Consistent with the court's decision\nin Johnson, this office has previously determined that records documenting the imposition of\ndiscipline that are more than four years old at the time they are requested are exempt from\n\ndisclosure under section 7.5(q) of FOIA. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. \n53704, issued March 13, 2019, at 5 (concluding that public body did not improperly withhold\nrecords of disciplinary action that were more than four years old under the PRRA, but that it\nimproperly withheld investigatory records that did not reflect disciplinary action). \n\nIn its response to this office, the District asserted that the records it withheld were\n\ndisciplinary records that were more than four years old. This office has reviewed the withheld\nrecords and confirmed that some of the documents reflect disciplinary action that occurred more\nrequest. 2 The District did not violate FOIA by withholding\nthan four years before\nthose records pursuant to section 7.5(q). Certain other withheld records are not responsive to\n\nrequest for \"discipline records\" and complaints. \n\nOther withheld records, while more than 4 years old, do not reflect disciplinary\n\naction, but rather complaints against staff members. Because these records are not \" disciplinary\nreports, letters of reprimand, or other records of disciplinary action\" contemplated by section 8 of\nthe PRRA, they are not exempt pursuant to section 7.5(q) of FOIA. Accordingly, this office\nrequests that the District disclose pages 14-15 and 32-40 of the withheld records to\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov\n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n56359 f 75q proper improper sd\n\nprecludes this office from further identifying the nature of the records. 5 ILCS 140/ 9.5(c) (West 2018). \n\n2 Because the District provided the records to this office confidentially, section 9.5(c) of FOIA"}
{"id":929,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-06-30","case_number":null,"request_numbers":["56600"],"title":"City of Chicago Mayor's Office properly withheld investment bank pitchbooks under 7(1)(g)","filename":"56600, issued June 30, 2020.pdf","rel_path":null,"word_count":2639,"summary":"A reporter requested pitchbooks and marketing materials from investment banking firms provided to the Chicago Mayor's Office regarding bond sales for pension plans. The PAC determined that the Mayor's Office properly withheld the records under the exemption for trade secrets and commercial information.","plain_summary":"The requester sought investment-bank marketing materials (pitchbooks) submitted to the mayor's office about potential municipal bond sales, which the office withheld as confidential commercial information. The PAC determined that the pitchbooks contained commercial information furnished under a claim of confidentiality and that disclosure would cause competitive harm to the firms that submitted them by revealing their unique marketing approaches and methods. The office's withholding did not violate FOIA.","holding":"The Mayor's Office did not improperly withhold the requested records because they were exempt from disclosure under section 7(1)(g) of FOIA.","legal_question":"Whether the Mayor's Office properly withheld investment banking pitchbooks and marketing materials pursuant to the FOIA exemption for trade secrets and commercial or financial information.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)"],"public_body":"City of Chicago Office of the Mayor","requesting_party":"Cezary Podkul (The Wall Street Journal)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(g)","subject_description":"The request sought investment banking pitchbooks and marketing materials regarding potential bond sales to fund city pension plans.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/56600%2C%20issued%20June%2030%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","financial information","investment banking","bond sales","commercial information"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJune 30,  2020\n\nVia electronic mail\n\nMr.  Cezary Podkul\nReporter\n\nThe jWall Street Journal\n\n1211 Avenue of the Americas\n5th Floor\n\nNew York,  New York 10036\n\nCezary: podkul@wsj. com\n\nVia 'electronic mail\n\nMs. ;Anjali Julka\n\nFreedom of Information Officer\n\nCity. of Chicago Office of the Mayor\n121 North LaSalle Street,  Suite 500\n\n[street address redacted for site publication -- see original PDF]\nmofoia@cityofchicago.\n\norg\n\nRE:  FOIA Request\n\nfor Review — 2019 PAC 56600\n\nDear Mr. P,odkul and Ms.  Julka: \n\nThis determinationletter\n\nis issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Office of the Mayor ( Mayor' s Office)  of the City of\nChicago ( City)  did not improperly withhold records responsive to Mr. Cezary Podkul' s January\n3,  2019,  FOIA request. \n\nOn that date,  Mr. Podkul submitted a FOIA request to the Mayor' s Office seeking\n\ncopies of \"any pitchbooks,  presentations and marketing materials provided by investment. \nbanking firms to the office of the Mayor between Jan.  1,  2018 and today Jan.  3,  2019,  regarding\npotential sales of bonds to fund the city' s pension plans[.]\"'  On January 17,  2019,  the Mayor' s\n\n2019). \n\nIE -mail from Cezary Podkul, The Wall Street Journal,  to MOfoia@cityofchicago. org ( January 3, \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: (800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Cezary Podkul\nMs.  Anjali Julka\n\nJune 30,  2020\n\nPage 2\n\nOffice denied the request in its entirety pursuant\nWest 2018). \n\nIn his Request for Review Mr. Podkul contested the Mayor' s Office' s denial. \n\nto section 7( 1)( g)  of FOIA ( 5 ILCS 140/ 7( 1)( g) \n\nOn February 6,  2019,  the Public Access Bureau sent a copy of the Request for\nReview to the Mayor' s Office and asked it to provide copies of a representative\nsample of each\ntype of record withheld,  e.g., pitchbooks,  presentations,  or other types of marketing materials, \nalong with a detailed explanation of the factual and legal basis for the applicability of the section\n7( 1)( g)  exemption to those records.  On February 26,  2019,  the Mayor' s Office_provided six of\nthe eighteen responsive pitchbooks as a representative sample of the records it maintains and a\nwritten response detailing its rationale for denying the records under 7( 1)( g).  On March 15, \n2019,  Mr. Podkul submitted a reply.  On September 9,  2019,  after repeated attempts to discuss\nthis matter with the FOIA Officer for the Mayor' s Office and with lawyers in the City' s Law\ndepartment,  this office sent an e- mail to the Mayor' s Office asking it to provide the additional\ntwelve pitchbooks for our confidential review. 2 On September 27,  2019,  the Mayor' s Office\n\nprovided eight pitchbooks, \nthree of which were copies of pitchbooks previously provided on\nFebruary 26,  2019;  on September 30,  2019,  the Mayor' s Office provided a cover page for an\n\nadditional pitchbook. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\nit is exempt.\" \n5 ILCS\n140/ 1. 2 ( West 2018).  Exemptions to disclosure are to be narrowly construed.  Lieber v.  Board of\nTrustees of Southern Illinois Univ.,  176 Ill. 2d 401,  408 ( 1997). \n\nSection 7( 1)( g)  of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial\n\ninformation\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial\n\ninformation are furnished under a claim\n\nthat they are proprietary, privileged or confidential,  and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\n2E -mail from Edie Steinberg,  Assistant Attorney General,  Public Access Bureau to [ Anjalail Julka\n\nFreedom of Information Officer,  City of Chicago,  Office of the Mayorl( September\n\n9,  2019). \n\n\fMr. Cezary Podkul\nMs.  Anjali Julka\n\nJune 30,  2020\n\nPage 3\n\nbusiness,  and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt from disclosure under section .7( 1)( g): \n\nT] he document must contain ( 1)  a trade secret,  commercial,  or\n\nfinancial\n\ninformation, ( 2)  that was obtained from a person or\n\nbusiness where the trade secrets or commercial or financial\n\ninformation are furnished under a claim that they are either ( a) \nproprietary, ( b)  privileged,  or ( c)  confidential,  and ( 3)  that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\nbusiness.  Chicago v. Janssen Pharmaceuticals,  Inc.,  2017 IL App\n1st)  150870, ¶ 27,  78 N. E. 3d 446,  455 ( 2017). \n\nTrade Secret,  Commercial,  or Financial Information\n\nIn his Request\n\nfor Review,  Mr.  Podkul asserted that the withheld pitchbooks are\n\nnot exempt because pitchbooks do not contain trade secrets.  To fall within the scope of section\n7( 1)( g),  records must contain trade secrets,  or commercial,  or financial information.  FOIA does\nnot define these terms.  Accordingly, the terms are defined by their ordinary and commonly\nunderstood meaning.  Lake County Bd. ofReview v. Prop.  Tax Appeal Bd. of State ofIll., 119 Ill. \n2d 419,  423 ( 1988).  A \" trade secret\"  is defined as \"[ a]  formula,  process,  device,  or other\nbusiness information that is kept confidential to maintain an advantage over competitors[.]\" \n\nBlack' s Law Dictionary ( 1 lth ed.  2019),  available at Westlaw BLACKS. \" Commercial\"  means\npertaining or relating to or dealing with commerce.\"  New Hampshire Right to Life v.  U.S. \nDepartment of Health &  Human Services,  778 F. 3d 43,  49 ( 1st Cir.  2015). 3\n\nA pitchbook is a marketing tool used by banks and investment\nservices and persuade potential clients to use its services for certain transactions. 4 Here,  the\npitchbooks in question were provided by various investment banking firms to the Mayor' s Office\nto market services to underwrite the potential sale of bonds to fund the City' s pension plans.  A\n\nfirms to sell\n\nits\n\n3See also the definition of \" Commercial\" \nrelating to,  or involving the ability of a product or business\n\nin Black' s Law Dictionary ( 11th ed.  2019) (\"\nto make a profit.\"),  available\n\nat Westlaw BLACKS. \n\n5.  Of, \n\nare used as a tool\nInv.  Mgr.,  CIV.  03- 4383 ( DWF/ SR,  2005 WL 1475336,  at * 5 ( D.  Minn.  June 22,  2005)) (\" Pitch books are\n\n4See Lapin v.  Goldman Sachs Group,  Inc.,  506 F.  Supp.  2d 221,  230 ( S. D. N. Y.  2006) ( pitchbooks\nto attract and recruit potential new investment banking clients);  Minnesota Life Ins.  Co.  v.  AXA\n\nadvertising materials containing information about a particular business entity sent to prospective customers by the\nbusiness entity to solicit business.\"); \n\n\fMr. Cezary Podkul\nMs.  Anjali Julka\n\nJune 30,  2020\n\nPage 4\n\nreview of a representative sample of the pitchbooks establishes that the pitchbooks show each\nfirm' s unique approach to selling its services.  As such,  the pitchbooks pertain to commerce ' and\nfall within the scope of the first prong of section 7( 1)( g). \n\nFurnished Under a Claim it is Proprietary,  Privileged,  or Confidential\n\nAs part of its burden of establishing that records are exempt under section 7( 1)( g), \n\na public body must demonstrate that the records were furnished under a claim that they are\nproprietary,  privileged,  or confidential.  See I11.  Att'y Gen.  Pub.  Acc.  Op.  No.  18- 004,  issued\nMarch 6,  2018,  at 5. . \n\nIn its response to this office,  the Mayor'  s Office explained that it discussed the\n\nwithheld records with its Chief Financial Officer ( CFO),  Deputy Controller,  Chief of Staff to the\nCFO, and the City' s Independent Registered Municipal Advisor who is in charge of maintaining\nallpitchbooks and materials received from investment banks.  The Mayor' s Office explained that • \n\nt] he longstanding relationship between the City and financial\n\ninstitutions proposing their\n\nservices is based on the understanding that these records are proprietary.  In addition,  they have\nbeen marked confidential by the investment banking firms that created them.\nAccordingly,  the\nMayor's Office contended that the records were confidential, proprietary records of the financial\ninstitutions. \n\ni5\n\nThe Mayor' s Office provided to this office for our confidential review copies of\n\ntwelve pitchbooks,  eight of which are labeled or otherwise denoted as confidential.  The plain\nto it to be \" furnished under a\nlanguage of section 7( 1)( g)  requires records withheld pursuant\nclaim that they are proprietary,  privileged or confidential.\"  See Food Marketing Institute v. \nArgus Leader Media, \n\n139 S.  Ct.  2356,  2363,  2366 ( 2019) ( under\n\nfederal FOIA, \n\nU. S. ,\n\nwhere commercial or financial information is both customarily and actually treated as private by\nits owner and provided to the government under an assurance of privacy,  the information is\n\nconfidential'[.]\")\n\n6;  Ill. Att'y Gen.  Pub.  Acc. Op.  No.  18- 004,  at 6- 7 ( records not exempt under\n\nfurnished to the public body with a claim that that the records were\n\n7( 1)( g)  where they werenot\nproprietary,  privileged,  or confidential). \nlongstanding understanding between the City and financial institutions that the pitchbooks are\nproprietary,  combined with the fact that a majority of the pitchbooks provided are expressly\nmarked or otherwise noted as being confidential,  establish that the pitchbooks were furnished\n\nThe Mayor' s Office' s confirmation that there is a\n\nMayor ( February 26,  2019),  at 2. \n\n5Letter from Shannon I Leonard,  Freedom of Information Officer, City of Chicago, Office of the\n\n6The trade secret exemption in the Federal FOIA applies to \" trade secrets and commercial or\n\nfinancial\n\ninformation obtained from a person and privileged or confidential[.]\" \n\n5 U. S. C. § 552( b)( 4) ( 2018). \n\n\fMr.  Cezary Podkul\nMs. 'Anjali Julka\nJune 30,  2020\n\nPage` 5\n\nunder_ a claim that\n\nthey are proprietary and confidential.  Accordingly,  this office concludes that\nthe Mayor' s Office has demonstrated that the pitchbooks were furnished under a claim that they\nare proprietary or privileged. \n\nCompetitive Harm to a Person or Business\n\nTo establish that records are exempt under section 7( 1)( g),  a publicbody must\n\nalso' demonstrate that disclosing the records would cause competitive harm.  Janssen,  Inc.,  2017\nIL App ( 1st)  150870, ¶ 29,  78 N.E.3d at 456.  To cause competitive harm, a public body must\n\nshow by specific factual or evidentiary material that: (\n\n1) \n\nthe person or entity from which\n\ninformation was obtained actually faces competition;  and ( 2)  substantial harm to a competitive\nfrom disclosureof the information in the agency' s records.'\"  Cooper\nposition would likely result\nv.  Dep' t of the Lottery,  266 Ill.  App.  3d 1007,  1013 ( 1st Dist.  1994) ( quoting Calhoun v. Lyng, \n864 F. 2d 34,: 36 ( 5th Cir.  1988)). \n\nIn this matter,  numerous companies were competing to\n\nunderwrite bonds to fund the City' s pension plans and provided pitchbooks to the Mayor' s Office\nin an attempt to acquire that business.  Accordingly,  it is apparent that the financial institutions\nfurnishing the pitchbooks actually faced competition. \n\nIn addition to demonstrating actual competition,  a public body opposing\n\ndisclosure must show that substantial harm to a competitive position would likely result from\ndisclosure of the information.  However a public body need not demonstrate actual competitive\nharm;  instead,  it needs to show a likelihood of substantial competitive injury.  New Hampshire\nRight to Life,  778 F. 3d at 50- 51 ( where potential\ninstitutional knowledge contained in a manual and letter describing the manual,  manual and letter\n\nfuture competitor could take advantage of\n\nwere exempt commercial\n\ninformation);  Ill. Att' y Gena Pub.  Acc.  Op.  No.  19- 007,  issued\n\nSeptember 23,  2019,  at 11 ( assertions regarding competitive harm that are largely conclusory fail\nto provide specific factual evidence demonstrating how substantial harm would occur). \n\nThe Mayor' s Office asserted that the release of the pitchbooks would cause\n\ncompetitive harm, explaining: \n\nT] he requested records reflect\nthese banks proprietary work\nregarding their ideas on the best ways to handle a particular\nfinancial situation.  Should a competitor bank obtain these banks' \n\nwork,  they could easily undercut the proposal,  or plagiarize their\nconcepts,  which would clearly cause competitive harm.  The release\nof these proprietary pitchbooks would provide insight for\n\n\fMr. Cezary Podkul\nMs.  Anjali Julka\n\nJune . 30,  2020\n\nPage,  6\n\ncompetitors to structure financial proposals,  both to the City and\nother governmental clients. l71\n\nIn Mr.  Podkul' s reply he contends that the release of the records would be beneficial\nvarious firms,  explaining: \n\nto the\n\nI] nvestment banks typically include in their pitchbooks\ninformation on previously -  announced deals and engagements for\nwhich they were hired. * * *  By disclosing these pitchbooks to\nThe Wall Street Journal,  the top business and financial newspaper\nin the U.  S.,  the city will help burnish these firms'  business\ncredentials and obtain them publicity that would,  if anything,  be\nhelpful to their business interests --  not harmful,  as the city\nclaims. l81\n\nAlthough pitchbooks include this type of self -promotion,  it is unclear how a sales pitch by an\ninvestmentfirm,  which might have been unsuccessful,  would be advantageous\nto that firm' s\nreputation.  Further,  review of the pitchbooks reveal that disclosure of the pitchbooks would\nenable competing financial firms to copy the way a firm presents information, and would allow\ncompetitors to utilize unique marketing methods,  ideas,  design,  and analysis.  Therefore the\nMayors Office has sustained its burden of establishing that release of the pitchbooks would\ncause substantial harm to a competitive position. \n\nMr. Podkul asserts that because the Illinois Governor' s Office of Management and\n\nBudget ( Illinois Budget Office)  provided him with copies of certain pitchbooks, \nthat the pitchbooks withheld by the Mayor' s Office are not exempt under section 7( 1)( g)  of\nFOIA.  However,  under section 7( 1)  of FOIA ( 5 ILCS 140/ 7( 1) ( West 2018)),  a public body may\nelect to: redact or withhold exempt\nReed,  177 111.  2d 389,  393 ( 1997) (\npermissive or directory reading,  rather than a mandatory one);  Crumpton v.  Stone,  59 F. 3d 1400, \n1404 ( D. C.  Cir.  1995) ( FOIA allows an agency to withhold certain information but it does not\nlimit an. agency' s discretion to disclose information).  A state agency' s choice to disclose certain\nrecords does not preclude the Mayor' s Office from asserting an available exemption to withhold\n\ninformation;  FOIA does not require it do so.  See People v. \nlegislature' s use of the word \" may\"  generally indicates a\n\nit establishes\n\nMayor ( February 26,  2019),  at 2. \n\nLetter from Shannon I Leonard,  Freedom of Information Officer,  City of Chicago,  Office of the\n\nAccess Bureau] ( March 15,  2019). \n\n8E -mail from Cezary Podkul to Public Access;  Steinberg, Edie [ Assistant Attorney General,  Public\n\n\fMr:  Cezary Podkul\nMs:  Anjali Julka\n\nJune 30,  2020\nPage 7\n\nsimilar\n\nrecords. \n\nAccordingly,  based on the available information,  this office concludes that the\n\nMayor' s Office sustained its burden of demonstrating by clear and convincing evidence that the\nto section 7( 1)( g)  of FOIA.  The Public\nwithheld pitchbooks are exempt\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nfrom disclosure pursuant\n\nbinding opinion.  This file is closed.  Please contact me at ( 312)  814- 5201 or at the Chicago\naddress on the first page of this letter if you have questions. \n\nVery truly yours, \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A Wall Street Journal reporter asked the Chicago Mayor's Office for documents provided by investment banks about potential city bond sales. The Mayor's Office refused to release the documents, claiming they contained confidential business information. The Attorney General's office agreed with the city, ruling that the records were protected from public disclosure.","card_headline":"Investment banking pitchbooks for pension bond sales","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56600/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJune 30, 2020\n\nVia electronic mail\n\nMr. Cezary Podkul\nReporter\n\nThe jWall Street Journal\n\n1211 Avenue of the Americas\n5th Floor\n\nNew York, New York 10036\n\nCezary: podkul@wsj. com\n\nVia 'electronic mail\n\nMs.;Anjali Julka\n\nFreedom of Information Officer\n\nCity. of Chicago Office of the Mayor\n121 North LaSalle Street, Suite 500\n\n[street address redacted for site publication -- see original PDF]\nmofoia@cityofchicago.\n\norg\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 56600\n\nDear Mr. P,odkul and Ms. Julka: \n\nThis determinationletter\n\nis issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Office of the Mayor (Mayor's Office) of the City of\nChicago (City) did not improperly withhold records responsive to Mr. Cezary Podkul's January\n3, 2019, FOIA request. \n\nOn that date, Mr. Podkul submitted a FOIA request to the Mayor's Office seeking\n\ncopies of \"any pitchbooks, presentations and marketing materials provided by investment. \nbanking firms to the office of the Mayor between Jan. 1, 2018 and today Jan. 3, 2019, regarding\npotential sales of bonds to fund the city's pension plans[.]\"' On January 17, 2019, the Mayor's\n\n2019). \n\nIE -mail from Cezary Podkul, The Wall Street Journal, to MOfoia@cityofchicago. org (January 3, \n\nOffice denied the request in its entirety pursuant\nWest 2018). \n\nIn his Request for Review Mr. Podkul contested the Mayor's Office's denial. \n\nto section 7(1)(g) of FOIA (5 ILCS 140/ 7(1)(g) \n\nOn February 6, 2019, the Public Access Bureau sent a copy of the Request for\nReview to the Mayor's Office and asked it to provide copies of a representative\nsample of each\ntype of record withheld, e.g., pitchbooks, presentations, or other types of marketing materials, \nalong with a detailed explanation of the factual and legal basis for the applicability of the section\n7(1)(g) exemption to those records. On February 26, 2019, the Mayor's Office_provided six of\nthe eighteen responsive pitchbooks as a representative sample of the records it maintains and a\nwritten response detailing its rationale for denying the records under 7(1)(g). On March 15, \n2019, Mr. Podkul submitted a reply. On September 9, 2019, after repeated attempts to discuss\nthis matter with the FOIA Officer for the Mayor's Office and with lawyers in the City's Law\ndepartment, this office sent an e- mail to the Mayor's Office asking it to provide the additional\ntwelve pitchbooks for our confidential review. 2 On September 27, 2019, the Mayor's Office\n\nprovided eight pitchbooks, \nthree of which were copies of pitchbooks previously provided on\nFebruary 26, 2019; on September 30, 2019, the Mayor's Office provided a cover page for an\n\nadditional pitchbook. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that\nit is exempt.\" \n5 ILCS\n140/ 1. 2 (West 2018). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 (1997). \n\nSection 7(1)(g) of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial\n\ninformation\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial\n\ninformation are furnished under a claim\n\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\n2E -mail from Edie Steinberg, Assistant Attorney General, Public Access Bureau to [ Anjalail Julka\n\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt from disclosure under section.7(1)(g): \n\nT] he document must contain (1) a trade secret, commercial, or\n\nfinancial\n\ninformation, (2) that was obtained from a person or\n\nbusiness where the trade secrets or commercial or financial\n\ninformation are furnished under a claim that they are either (a) \nproprietary, (b) privileged, or (c) confidential, and (3) that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\nbusiness. Chicago v. Janssen Pharmaceuticals, Inc., 2017 IL App\n1st) 150870, ¶ 27, 78 N. E. 3d 446, 455 (2017). \n\nTrade Secret, Commercial, or Financial Information\n\nIn his Request\n\nfor Review, Mr. Podkul asserted that the withheld pitchbooks are\n\nnot exempt because pitchbooks do not contain trade secrets. To fall within the scope of section\n7(1)(g), records must contain trade secrets, or commercial, or financial information. FOIA does\nnot define these terms. Accordingly, the terms are defined by their ordinary and commonly\nunderstood meaning. Lake County Bd. ofReview v. Prop. Tax Appeal Bd. of State ofIll., 119 Ill. \n2d 419, 423 (1988). A \" trade secret\" is defined as \"[ a] formula, process, device, or other\nbusiness information that is kept confidential to maintain an advantage over competitors[.]\" \n\nBlack's Law Dictionary (1 lth ed. 2019), available at Westlaw BLACKS. \" Commercial\" means\npertaining or relating to or dealing with commerce.\" New Hampshire Right to Life v. U.S. \nDepartment of Health & Human Services, 778 F. 3d 43, 49 (1st Cir. 2015). 3\n\nA pitchbook is a marketing tool used by banks and investment\nservices and persuade potential clients to use its services for certain transactions. 4 Here, the\npitchbooks in question were provided by various investment banking firms to the Mayor's Office\nto market services to underwrite the potential sale of bonds to fund the City's pension plans. A\n\nfirms to sell\n\nits\n\n3 See also the definition of \" Commercial\" \nrelating to, or involving the ability of a product or business\n\nin Black's Law Dictionary (11th ed. 2019) (\"\nto make a profit.\"), available\n\nat Westlaw BLACKS. \n\n5. Of, \n\nare used as a tool\nInv. Mgr., CIV. 03- 4383 (DWF/ SR, 2005 WL 1475336, at * 5 (D. Minn. June 22, 2005)) (\" Pitch books are\n\n4 See Lapin v. Goldman Sachs Group, Inc., 506 F. Supp. 2d 221, 230 (S. D. N. Y. 2006) (pitchbooks\nto attract and recruit potential new investment banking clients); Minnesota Life Ins. Co. v. AXA\n\nadvertising materials containing information about a particular business entity sent to prospective customers by the\n\nreview of a representative sample of the pitchbooks establishes that the pitchbooks show each\nfirm's unique approach to selling its services. As such, the pitchbooks pertain to commerce ' and\nfall within the scope of the first prong of section 7(1)(g). \n\nFurnished Under a Claim it is Proprietary, Privileged, or Confidential\n\nAs part of its burden of establishing that records are exempt under section 7(1)(g), \n\na public body must demonstrate that the records were furnished under a claim that they are\nproprietary, privileged, or confidential. See I11. Att'y Gen. Pub. Acc. Op. No. 18- 004, issued\nMarch 6, 2018, at 5.. \n\nIn its response to this office, the Mayor's Office explained that it discussed the\n\nwithheld records with its Chief Financial Officer (CFO), Deputy Controller, Chief of Staff to the\nCFO, and the City's Independent Registered Municipal Advisor who is in charge of maintaining\nallpitchbooks and materials received from investment banks. The Mayor's Office explained that • \n\nt] he longstanding relationship between the City and financial\n\ninstitutions proposing their\n\nservices is based on the understanding that these records are proprietary. In addition, they have\nbeen marked confidential by the investment banking firms that created them.\nAccordingly, the\nMayor's Office contended that the records were confidential, proprietary records of the financial\ninstitutions. \n\ni5\n\nThe Mayor's Office provided to this office for our confidential review copies of\n\ntwelve pitchbooks, eight of which are labeled or otherwise denoted as confidential. The plain\nto it to be \" furnished under a\nlanguage of section 7(1)(g) requires records withheld pursuant\nclaim that they are proprietary, privileged or confidential.\" See Food Marketing Institute v. \nArgus Leader Media, \n\n139 S. Ct. 2356, 2363, 2366 (2019) (under\n\nfederal FOIA, \n\nU. S.,\n\nwhere commercial or financial information is both customarily and actually treated as private by\nits owner and provided to the government under an assurance of privacy, the information is\n\nconfidential'[.]\")\n\n6; Ill. Att'y Gen. Pub. Acc. Op. No. 18- 004, at 6- 7 (records not exempt under\n\nfurnished to the public body with a claim that that the records were\n\n7(1)(g) where they werenot\nproprietary, privileged, or confidential). \nlongstanding understanding between the City and financial institutions that the pitchbooks are\nproprietary, combined with the fact that a majority of the pitchbooks provided are expressly\nmarked or otherwise noted as being confidential, establish that the pitchbooks were furnished\n\nThe Mayor's Office's confirmation that there is a\n\nMayor (February 26, 2019), at 2. \n\n5 Letter from Shannon I Leonard, Freedom of Information Officer, City of Chicago, Office of the\n\n6 The trade secret exemption in the Federal FOIA applies to \" trade secrets and commercial or\n\nfinancial\n\ninformation obtained from a person and privileged or confidential[.]\" \n\n5 U. S. C. § 552(b)(4) (2018). \n\nMr. Cezary Podkul\nMs. 'Anjali Julka\nJune 30, 2020\n\nPage` 5\n\nunder_ a claim that\n\nthey are proprietary and confidential. Accordingly, this office concludes that\nthe Mayor's Office has demonstrated that the pitchbooks were furnished under a claim that they\nare proprietary or privileged. \n\nCompetitive Harm to a Person or Business\n\nTo establish that records are exempt under section 7(1)(g), a publicbody must\n\nalso' demonstrate that disclosing the records would cause competitive harm. Janssen, Inc., 2017\nIL App (1st) 150870, ¶ 29, 78 N.E.3d at 456. To cause competitive harm, a public body must\n\nshow by specific factual or evidentiary material that: (1) \n\nthe person or entity from which\n\ninformation was obtained actually faces competition; and (2) substantial harm to a competitive\nfrom disclosureof the information in the agency's records.'\" Cooper\nposition would likely result\nv. Dep' t of the Lottery, 266 Ill. App. 3d 1007, 1013 (1st Dist. 1994) (quoting Calhoun v. Lyng, \n864 F. 2d 34,: 36 (5th Cir. 1988)). \n\nIn this matter, numerous companies were competing to\n\nunderwrite bonds to fund the City's pension plans and provided pitchbooks to the Mayor's Office\nin an attempt to acquire that business. Accordingly, it is apparent that the financial institutions\nfurnishing the pitchbooks actually faced competition. \n\nIn addition to demonstrating actual competition, a public body opposing\n\ndisclosure must show that substantial harm to a competitive position would likely result from\ndisclosure of the information. However a public body need not demonstrate actual competitive\nharm; instead, it needs to show a likelihood of substantial competitive injury. New Hampshire\nRight to Life, 778 F. 3d at 50- 51 (where potential\ninstitutional knowledge contained in a manual and letter describing the manual, manual and letter\n\nfuture competitor could take advantage of\n\nwere exempt commercial\n\ninformation); Ill. Att' y Gena Pub. Acc. Op. No. 19- 007, issued\n\nSeptember 23, 2019, at 11 (assertions regarding competitive harm that are largely conclusory fail\nto provide specific factual evidence demonstrating how substantial harm would occur). \n\nThe Mayor's Office asserted that the release of the pitchbooks would cause\n\ncompetitive harm, explaining: \n\nT] he requested records reflect\nthese banks proprietary work\nregarding their ideas on the best ways to handle a particular\nfinancial situation. Should a competitor bank obtain these banks' \n\nwork, they could easily undercut the proposal, or plagiarize their\nconcepts, which would clearly cause competitive harm. The release\nof these proprietary pitchbooks would provide insight for\n\nMr. Cezary Podkul\nMs. Anjali Julka\n\nJune. 30, 2020\n\nPage, 6\n\ncompetitors to structure financial proposals, both to the City and\nother governmental clients. l71\n\nIn Mr. Podkul's reply he contends that the release of the records would be beneficial\nvarious firms, explaining: \n\nto the\n\nI] nvestment banks typically include in their pitchbooks\ninformation on previously - announced deals and engagements for\nwhich they were hired. * * * By disclosing these pitchbooks to\nThe Wall Street Journal, the top business and financial newspaper\nin the U. S., the city will help burnish these firms' business\ncredentials and obtain them publicity that would, if anything, be\nhelpful to their business interests -- not harmful, as the city\nclaims. l81\n\nAlthough pitchbooks include this type of self -promotion, it is unclear how a sales pitch by an\ninvestmentfirm, which might have been unsuccessful, would be advantageous\nto that firm's\nreputation. Further, review of the pitchbooks reveal that disclosure of the pitchbooks would\nenable competing financial firms to copy the way a firm presents information, and would allow\ncompetitors to utilize unique marketing methods, ideas, design, and analysis. Therefore the\nMayors Office has sustained its burden of establishing that release of the pitchbooks would\ncause substantial harm to a competitive position. \n\nMr. Podkul asserts that because the Illinois Governor's Office of Management and\n\nBudget (Illinois Budget Office) provided him with copies of certain pitchbooks, \nthat the pitchbooks withheld by the Mayor's Office are not exempt under section 7(1)(g) of\nFOIA. However, under section 7(1) of FOIA (5 ILCS 140/ 7(1) (West 2018)), a public body may\nelect to: redact or withhold exempt\nReed, 177 111. 2d 389, 393 (1997) (permissive or directory reading, rather than a mandatory one); Crumpton v. Stone, 59 F. 3d 1400, \n1404 (D. C. Cir. 1995) (FOIA allows an agency to withhold certain information but it does not\nlimit an. agency's discretion to disclose information). A state agency's choice to disclose certain\nrecords does not preclude the Mayor's Office from asserting an available exemption to withhold\n\ninformation; FOIA does not require it do so. See People v. \nlegislature's use of the word \" may\" generally indicates a\n\nit establishes\n\nMayor (February 26, 2019), at 2. \n\nLetter from Shannon I Leonard, Freedom of Information Officer, City of Chicago, Office of the\n\nAccess Bureau] (March 15, 2019). \n\n8E -mail from Cezary Podkul to Public Access; Steinberg, Edie [ Assistant Attorney General, Public\n\nsimilar\n\nrecords. \n\nAccordingly, based on the available information, this office concludes that the\n\nMayor's Office sustained its burden of demonstrating by clear and convincing evidence that the\nto section 7(1)(g) of FOIA. The Public\nwithheld pitchbooks are exempt\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nfrom disclosure pursuant\n\nbinding opinion. This file is closed. Please contact me at (312) 814- 5201 or at the Chicago\naddress on the first page of this letter if you have questions. \n\nVery truly yours,"}
{"id":930,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-12-19","case_number":null,"request_numbers":["56759"],"title":"Illinois Department of Healthcare and Family Services improperly withheld MCO cost reports under 7(1)(g)","filename":"56759, issued December 19, 2019.pdf","rel_path":null,"word_count":2821,"summary":"The requester sought quarterly cost reports of managed care organizations from the Illinois Department of Healthcare and Family Services, which the Department denied under FOIA Section 7(1)(g). The PAC determined that the Department failed to demonstrate that the records were exempt from disclosure.","plain_summary":"A consultant requested financial cost reports from the state's Medicaid managed care organizations, but the Department of Healthcare and Family Services refused to release them, claiming they were trade secrets. The Attorney General's Public Access Counselor reviewed the request and found that the Department did not provide a valid legal reason to keep the documents secret. Consequently, the Department was instructed to release the records to the requester.","holding":"The Illinois Department of Healthcare and Family Services improperly withheld the requested managed care organization cost reports.","legal_question":"Whether the Illinois Department of Healthcare and Family Services properly invoked FOIA Section 7(1)(g) to withhold managed care organization cost reports.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(g)","7(1)(u)"],"public_body":"Illinois Department of Healthcare and Family Services","requesting_party":"Mr. Matthew Werner","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"trade secrets","subject_description":"The request concerned quarterly cost reports for managed care organizations contracted under the Illinois Medicaid program.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_g/56759%2C%20issued%20December%2019%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["Medicaid","managed care","trade secrets","cost reports","FOIA denial"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nDecember 19,  2019\n\nMr. Matthew Werner\n\nWerner Consulting\n601 West Monroe Street\n\n[street address redacted for site publication -- see original PDF]\nmatt@mwernerconsulting.\n\ncom\n\nMs.  Kiran Mehta\n\nFreedom of Information Officer\n\nIllinois Department of Health and Family Services\n201 South Grand Avenue East\n\nSpringfield,  Illinois 62763- 0002\n\nhfs.webmaster@illinois.gov\n\nRE:  FOIA Request for Review — 2018 PAC 56759\n\nDear Mr. Werner and Ms.  Mehta: \n\nThis determination is issued pursuant to section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2018)).  For the reasons that follow, the\n\nPublic Access Bureau concludes that the Illinois Department of Health and Family Services\nDepartment)  improperly withheld records responsive to Mr. Mathew Werner' s January 8,  2019, \nFOIA request. \n\nOn that date,  Mr. Werner submitted a FOIA request to the Department seeking\n\nfour categories of records,  including quarterly cost reports of managed care organizations\nMCOs) contracted to manage medical services under the Illinois Medicaid program.  On\n\nFebruary 4,  2019,  the Department denied that portion of the request pursuant to section 7( 1)( g) \nof FOIA ( 5 ILCS 140/ 7( 1)( g) ( West 2018)).  On February 4,  2019,  Mr.  Werner submitted a\nRequest\n\nfor Review disputing the denial of the cost reports. \n\nOn February 13,  2019,  the Public Access Bureau sent a copy of the Request for\n\nReview to the Department and asked it to provide unredacted copies of the cost reports along\nwith a detailed explanation of the factual and legal basis for the applicability of the section\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • ( 217)  782- 1090•  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois 60601 • (\n\n312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806 • \n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr.  Matthew Werner\n\nMs.  Kiran Mehta\n\nDecember 19,  2019\n\nPage 2\n\n7( 1)( g)  exemption to those records.  On February 25,  2019,  the Department provided a blank\ntemplate of a cost report'  showing the categories of information documented in cost reports and a\nwritten response detailing its rationale for denying the reports under 7( 1)( g);  seven MCOs also\nsubmitted supporting letters or e- mails.  On March 8,  2019,  Mr.  Werner submitted a reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" \n5 ILCS\n140/ 1. 2 ( West 2018).  Exemptions to disclosure are to be narrowly construed.  Lieber v. Board of\nTrustees of Southern Illinois Univ:,  176 Ill. 2d 401,  408 ( 1997). \n\nSection 7( 1)( g)  of FOIA\n\nSection 7( 1)( g)  of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial\n\ninformation\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial information are furnished under a claim\n\nthat they are proprietary,  privileged or confidential,  and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\nbusiness,  and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt\n\nfrom disclosure under section 7( 1)( g): \n\nT] he document must contain ( 1)  a trade secret,  commercial,  or\n\nfinancial\nbusiness where the trade secrets or commercial or financial\n\ninformation, ( 2)  that was obtained from a person or\n\ninformation are furnished under a claim that they are either ( a) \nproprietary, ( b)  privileged,  or ( c)  confidential,  and ( 3)  that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\n\nbusiness.  City of Chicago v.  Janssen Pharmaceuticals,  Inc.,  2017\nIL App ( 1st)  150870, ¶ 27,  78 N. E. 3d at 455 ( 2017). \n\nPublic Access Bureau,  who agreed the template would suffice for this office' s review. \n\nThe Department' s FOIA officer discussed the response with an Assistant Attorney General\n\nin the\n\n\fMr.  Matthew Werner\n\nMs.  Kiran Mehta\n\nDecember\n\n19,  2019\n\nPage 3\n\nAs a threshold matter, the Department's response to the FOIA request and to this\n\noffice asserted that the cost reports were exempt under section 7( 1)( g)  because their disclosure\nwould discourage vendors and similar organizations from bidding on contracts with the State. \nThe Department cited BlueStar Energy Services,  Inc.  v.  Illinois Commerce Commission,  374 Ill. \nApp.  3d 990,  995 ( 1st Dist.  2007),  superseded by statute,  Freedom of Information Act ( 5 ILCS\n140/ 7( 1)( g) ( West 2014)),  as recognized in Janssen,  2017 IL App ( 1st)  150870, ¶ 28,  78 N.E. 3d\nat 456,  for the proposition that \" trade secret in the context of the FOIA has been interpreted to\n\ninclude information that ( 1)  would either inflict substantial competitive harm or ( 2)  make it more\n\ndifficult\n\nfor the agency to induce people to submit similar information in the future.\" ( Emphasis\n\nin original.) \n\nBefore 2010,  section 7( 1)( g)  of FOIA exempted from disclosure \"[\n\nt] rade secrets\n\ninformation obtained from a person or business where the trade\n\nand commercial or financial\nsecrets or information are proprietary,  privileged or confidential,  or where disclosure of the trade\nsecrets or information may cause competitive harm.\" ( Emphasis added.)  5 ILCS 140/ 7( 1)( g) \nWest 2008). \ndisclosure of such records \" would cause competitive\n\nIn contrast,  the current version of section 7( 1)( g)  specifically requires that\n\nharm.\" ( Emphasis added.)  Because the\n\nGeneral Assembly' s addition of these requirements indicates its intention to restrict\nthe scope of\nthe 7( 1)( g)  exemption to only those records that,  if disclosed,  would result in competitive harm\nto a person or business,  the prospective chilling effect described by the Department no longer\nprovides a valid basis to withhold records under section 70)( g)  of FOIA.  See Janssen,  2017 IL\nApp ( 1st)  150870, ¶ 28,  78 N.E. 3d at 456;  see also III. Att'y Gen.  Pub.  Acc.  Op.  No.  18- 004, \nissued March 6,  2018,  at 9 (\" although the City has raised the concern that requiring disclosure of\nthe Budget would have a chilling effect on its ability to contractually require developers to\nsubmit sensitive financial\ncause competitive harm.\"). \n\ninformation,  it has not demonstrated how disclosing the budget would\n\nAs part of its burden of establishing that records are exempt from disclosure under\n\nsection 7( 1)( g),  a public body must first demonstrate that the records were furnished under a\nclaim that they are proprietary,  privileged,  or confidential.  See I11.  Att'y Gen.  Pub.  Acc.  Op. No. \n18- 004,  at 5.  Although the materials provided to this office state that the cost reports contain\nproprietary information,  neither the Department' s response to this office nor the letters submitted\nby the MCOs asserted that the costs reports were submitted to the Department under a claim that\nthey are proprietary or privileged.  During a conference call with an Assistant Attorney General\nAAG)  in the Public Access Bureau,  a Department official stated that the costs are furnished with\n\nthe understanding that they are to be maintained confidentially;  another Department official\nstated that the cost reports are submitted through encrypted,  password - protected e- mail,  but\n\nacknowledged\n\nthat they are not marked as confidential.  The Department' s contracts with the\n\n\fMr. Matthew Werner\n\nMs.  Kiran Mehta\n\nDecember 19,  2019\n\nPage 4\n\nDepartment' s contracts with the MCOs, 2 however,  provide that MCOs'  information is subject\npublic disclosure unless expressly marked as confidential: \n\nto\n\nConfidential Information.  It is understood that each Party to\nthis Contract,  including its agents and Subcontractors,  may have or\ngain access to Confidential Information or data owned or\n\nmaintained by the other Party in the course of carrying out its\nresponsibilities under this Contract.  Contractor shall presume that\n\nall\n\ninformation received from the State or to which it gains access\n\npursuant\n\nto this Contract\n\nis confidential.  Contractor' s\n\ninformation ( excluding information regarding rates paid by\nto its Providers and Subcontractors),  unless clearly\nContractor\nmarked as confidential and exempt from disclosure under the\n\nIllinois Freedom of Information Act,  shall be considered\n\npublic. No confidential data collected,  maintained,  or used in the\n\ncourse of performance of the Contract shall be disseminated except\nas authorized by law and with the written consent of the disclosing\nParty,  either during the term of the Contract or thereafter, or as\notherwise set forth in this Contract. ( Emphasis added). 3\n\nBecause the information provided to this office indicates that the cost reports are not clearly\nmarked confidential,  they were not furnished under a claim of confidentiality and are subject to\npublic disclosure under the Department' s contracts with the MCOs. \n\nEven if the costs reports had been submitted under a claim that they were\n\nproprietary,  privileged,  or confidential,  the Department and the MCOs have not demonstrated\nthat disclosure of the reports would cause competitive harm.  Doing so requires a showing \"' by\nspecific factual or evidentiary material\nI)  the person or entity from which information\nwas obtained actually faces competition;  and ( 2)  substantial harm to a competitive position\nwould likely result\nEmphasis\nadded.)  Cooper v.  Dep' t of the Lottery,  266 I11.  App. 3d 1007,  1013 ( 1st Dist.  1994) ( quoting\nCalhoun v.  Lyng,  864 F. 2d 34,  36 ( 5th Cir. 1988)). \n\nfrom disclosure of the information in the agency' s records.\"' (\n\nthat: (\n\n20n June 27,  2019,  the Departments FOIA officer confirmed that each of the MCOs signed\n\ncontracts containing the terms in the model contract posted on the Department' s website. \n\nState of Illinois Contract between the Department of Healthcare and Family Services and [ Model\n\nContract]  for Furnishing Health Services by a Managed Care Organization, § 9. 1. 6 ( undated),  available at\nhttps:// www. illinois. gov/ hfs/ SiteCollectionDocuments/ 2018MODELCONTRACTadministrationcopy.\nvisited September 4,  2019). \n\npdf (last\n\n\fMr. Matthew Werner\n\nMs.  Kiran Mehta\n\nDecember 19,  2019\n\nPage 5\n\nThe Department' s response to this office included several\n\nletters or e- mails in\n\nwhich MCOs contended,  among other things,  that the MCOs'  cost reports contain detailed\ninformation that would provide insight\nThey contended that competitors could exploit that information to steer away their healthcare\nproviders and underbid MCOs for future contracts,  and asserted that health care providers could\n\ninto the MCOs'  strategies for coordinating medical care. \n\nuse it to demand higher reimbursements in negotiations.  One MCO contended that \" release of\n\nthe redacted information would allow a [ MCO]  competitor to calculate [\n\nthe MCO' s]  MLRs\n\nloss ratios]  by cohorts by combining the redacted information with other blinded\n\nmedical\ninformation that is currently publicly available,  which could be used to gain insight\nMCO' s]  financial\n\nterms,  rates,  and arrangements.\"\n\n4 The Department' s response and several of\n\ninto [ the\n\nthe MCOs relied on specific contractual\nMCOs are required to submit concerning \" MCO eligibility,  revenue,  medical expenses,  medical\nexpense adjustments,  estimated unpaid claim liability,  quality improvement expenses,  operating\nexpenses,  and MCO assessments and taxes. i5 In his reply, Mr. Werner asserted that the MCOs' \ncompetitive harm arguments were based on speculation rather than facts,  and contended that the\n\nlanguage describing the expansive information that\n\ncost\n\nreports are not\n\nThere is no plausible way I could use this information to tell\nwhat each plan pays a specific hospital or other provider type.  None.  The MCOs do not offer\n\nrates. * * * \n\nany broad or detailed explanation [ of] how this could occur. i6\n\nBased on this office' s confidential review, the information contained in the cost\n\nreports is much more limited than the information described in MCOs'  contracts.  Although it is\n\nundisputed that the MCOs face competition in the healthcare services industry,  the cost reports\nthemselves do not reveal any strategic information concerning the delivery of care.  They do not\nreflect the payment or denial of specific claims, or rates for specific treatments.  Instead, the cost\n\nreports contain aggregate data concerning broad categories of medical services.  The conclusory\nassertion that information in the cost reports could be combined with other publicly -available\ninformation to gain insight\nby specific factual and evidentiary material.  The Department and the MCOs have not\ndemonstrated how disclosure of the costs reports could be exploited by competitors to cause the\ntype of harm that section 7( 1)( g)  is designed to prevent. \n\nterms,  rates,  and arrangements is unsupported\n\ninto a MCO' s financial\n\nLetter from Jennifer Pipersburgh,  Associate General Counsel,  Legal Division,  Blue Cross and\n\nBlue Shield of Illinois,  to Sherri K.  Sadala,  Compliance Manager,  Illinois Department of Healthcare and Family\nServices,  Bureau of Managed Care ( January 31,  2019),  at 2. \n\nState of Illinois Contract between the Department of Healthcare and Family Services and [ Model\n\nContract]  for Furnishing Health Services by a Managed Care Organization, § 7. 11.\nhttps:// www.illinois.gov/hfs/ SiteCollectionDocuments/ 2018MODELCONTRACTadministrationcopy.pdf (last\nvisited September 4,  2019). \n\n1 ( undated),  available at\n\nAccess Bureau,  Office of the Attorney General ( March 8,  2019),  at 3. \n\nLetter from Matthew Werner,  Werner Consulting,  to Steve Silverman,  Bureau Chief,  Public\n\n\fMr.  Matthew Werner\n\nMs.  Kiran Mehta\n\nDecember 19,  2019\n\nPage 6\n\nFurther, Article VIII, section 1( c)  of the Illinois Constitution of 1970 provides that\ndeports and records of the obligation, receipt and use of public funds of the State,  units of local\n\ngovernment and school districts are public records available for inspection by the public\naccording to law.\"  Section 2. 5 of FOIA ( 5 ILCS 140/ 2. 5 ( West 2018))  correspondingly provides\nthat \"[ a] ll records relating to the obligation,  receipt,  and use of public funds of the State,  units of\nlocal government,  and school districts are public records subject to inspection and copying by the\npublic.\"  During the conference call with the AAG,  Department officials explained that the\nreports are used to assess whether MCOs have provided sufficient data for the Department's\n\nmonitoring of claims and assessments of MCO performance;  MCOs that fail to provide sufficient\ndata can face a fine of $100, 000 or even the suspension of beneficiaries being assigned to their\nhealth plans.  The data also is considered \" in the development of actuarially sound capitation\nrates ( encounter data may also be used).\" 7 \" Capitation\"  is \"[ a]  method of paying a healthcare\nprovider based on the number of members in a health -benefit plan that the provider contracts to\n\ntreat. •  The health plan' s sponsor agrees to pay a fixed amount per person each period, regardless\nof what services are provided.\"  Black' s Law Dictionary ( 11th ed.  2019),  available at Westlaw\nBLACKS.  Thus,  the cost reports are considered in determining how much MCOs are paid under\ntheir contracts, and cost reports with insufficient data provide a basis for levying hefty fines\nagainst MCOs.  Because such records directly and unequivocally relate to the receipt and use of\npublic funds,  they are subject\n\nto disclosure under section 2. 5 of FOIA. \n\nTwo of the MCOs' letters contained brief references to sections 7( 1)(\n\nt)  and 7( 1)( u) \n\nof FOIA ( 5 ILCS 140/ 7( 1)(\n\nt), ( I)( u) ( West 2018)),  but did not explain how those exemptions\n\nt) exempts from disclosure \"[ i] nformation contained in or\napply to the cost reports.  Section 7( 1)(\nrelated to examination,  operating,  or condition reports prepared by,  on behalf of, or for the use of\na public body responsible Tor the regulation or supervision of financial institutions or insurance\ncompanies,  unless disclosure is otherwise required by State law.\"  Even if the cost reports could\nbe construed as falling within the scope of the first clause of this exemption,  the second clause\nrenders the exemption inapplicable because disclosure of the cost reports is required by section\n2. 5 of FOIA.  Section 7( 1)( u)  exempts from disclosure \"[] i] nformation that would disclose or\n\nmight lead to the disclosure of secret or confidential\n\ninformation,  codes,  algorithms,  programs,  or\n\nprivate keys intended to be used to create electronic or digital signatures under the Electronic\n\nCommerce Security Act.\"  There is no indication that the cost reports have any connection to the\ncreation of electronic or digital signatures. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Department provide Mr. Werner with copies of the cost reports.  The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nE- mail\n\nfrom Kiran [ Mehta]  to [ Steven]  Silverman ( June 27,  2019). \n\n\fMr. Matthew Werner\n\nMs.  Kiran Mehta\n\nDecember 19,  2019\n\nPage 7\n\nbinding opinion.  This file is closed.  If you have any questions,  please contact me at ( 312)  814- \n6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n56759 f 71g improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Quarterly cost reports for Medicaid managed care organizations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56759/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nDecember 19, 2019\n\nMr. Matthew Werner\n\nWerner Consulting\n601 West Monroe Street\n\n[street address redacted for site publication -- see original PDF]\nmatt@mwernerconsulting.\n\ncom\n\nMs. Kiran Mehta\n\nFreedom of Information Officer\n\nIllinois Department of Health and Family Services\n201 South Grand Avenue East\n\nSpringfield, Illinois 62763- 0002\n\nhfs.webmaster@illinois.gov\n\nRE: FOIA Request for Review — 2018 PAC 56759\n\nDear Mr. Werner and Ms. Mehta: \n\nThis determination is issued pursuant to section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2018)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the Illinois Department of Health and Family Services\nDepartment) improperly withheld records responsive to Mr. Mathew Werner's January 8, 2019, \nFOIA request. \n\nOn that date, Mr. Werner submitted a FOIA request to the Department seeking\n\nfour categories of records, including quarterly cost reports of managed care organizations\nMCOs) contracted to manage medical services under the Illinois Medicaid program. On\n\nFebruary 4, 2019, the Department denied that portion of the request pursuant to section 7(1)(g) \nof FOIA (5 ILCS 140/ 7(1)(g) (West 2018)). On February 4, 2019, Mr. Werner submitted a\nRequest\n\nfor Review disputing the denial of the cost reports. \n\nOn February 13, 2019, the Public Access Bureau sent a copy of the Request for\n\nReview to the Department and asked it to provide unredacted copies of the cost reports along\nwith a detailed explanation of the factual and legal basis for the applicability of the section\n\n7(1)(g) exemption to those records. On February 25, 2019, the Department provided a blank\ntemplate of a cost report' showing the categories of information documented in cost reports and a\nwritten response detailing its rationale for denying the reports under 7(1)(g); seven MCOs also\nsubmitted supporting letters or e- mails. On March 8, 2019, Mr. Werner submitted a reply. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" \n5 ILCS\n140/ 1. 2 (West 2018). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ:, 176 Ill. 2d 401, 408 (1997). \n\nSection 7(1)(g) of FOIA\n\nSection 7(1)(g) of FOIA exempts from disclosure: \n\nTrade secrets and commercial or financial\n\ninformation\n\nobtained from a person or business where the trade secrets or\n\ncommercial or financial information are furnished under a claim\n\nthat they are proprietary, privileged or confidential, and that\ndisclosure of the trade secrets or commercial or financial\n\ninformation would cause competitive harm to the person or\n\nbusiness, and only insofar as the claim directly applies to the\nrecords requested. \n\nIn order to be exempt\n\nfrom disclosure under section 7(1)(g): \n\nT] he document must contain (1) a trade secret, commercial, or\n\nfinancial\nbusiness where the trade secrets or commercial or financial\n\ninformation, (2) that was obtained from a person or\n\ninformation are furnished under a claim that they are either (a) \nproprietary, (b) privileged, or (c) confidential, and (3) that\ndisclosure of the trade secrets or commercial or financial\ninformation would cause competitive harm to the person or\n\nbusiness. City of Chicago v. Janssen Pharmaceuticals, Inc., 2017\n\nAs a threshold matter, the Department's response to the FOIA request and to this\n\noffice asserted that the cost reports were exempt under section 7(1)(g) because their disclosure\nwould discourage vendors and similar organizations from bidding on contracts with the State. \nThe Department cited BlueStar Energy Services, Inc. v. Illinois Commerce Commission, 374 Ill. \nApp. 3d 990, 995 (1st Dist. 2007), superseded by statute, Freedom of Information Act (5 ILCS\n140/ 7(1)(g) (West 2014)), as recognized in Janssen, 2017 IL App (1st) 150870, ¶ 28, 78 N.E. 3d\nat 456, for the proposition that \" trade secret in the context of the FOIA has been interpreted to\n\ninclude information that (1) would either inflict substantial competitive harm or (2) make it more\n\ndifficult\n\nfor the agency to induce people to submit similar information in the future.\" (Emphasis\n\nin original.) \n\nBefore 2010, section 7(1)(g) of FOIA exempted from disclosure \"[\n\nt] rade secrets\n\ninformation obtained from a person or business where the trade\n\nand commercial or financial\nsecrets or information are proprietary, privileged or confidential, or where disclosure of the trade\nsecrets or information may cause competitive harm.\" (Emphasis added.) 5 ILCS 140/ 7(1)(g) \nWest 2008). \ndisclosure of such records \" would cause competitive\n\nIn contrast, the current version of section 7(1)(g) specifically requires that\n\nharm.\" (Emphasis added.) Because the\n\nGeneral Assembly's addition of these requirements indicates its intention to restrict\nthe scope of\nthe 7(1)(g) exemption to only those records that, if disclosed, would result in competitive harm\nto a person or business, the prospective chilling effect described by the Department no longer\nprovides a valid basis to withhold records under section 70)(g) of FOIA. See Janssen, 2017 IL\nApp (1st) 150870, ¶ 28, 78 N.E. 3d at 456; see also III. Att'y Gen. Pub. Acc. Op. No. 18- 004, \nissued March 6, 2018, at 9 (\" although the City has raised the concern that requiring disclosure of\nthe Budget would have a chilling effect on its ability to contractually require developers to\nsubmit sensitive financial\ncause competitive harm.\"). \n\ninformation, it has not demonstrated how disclosing the budget would\n\nAs part of its burden of establishing that records are exempt from disclosure under\n\nsection 7(1)(g), a public body must first demonstrate that the records were furnished under a\nclaim that they are proprietary, privileged, or confidential. See I11. Att'y Gen. Pub. Acc. Op. No. \n18- 004, at 5. Although the materials provided to this office state that the cost reports contain\nproprietary information, neither the Department's response to this office nor the letters submitted\nby the MCOs asserted that the costs reports were submitted to the Department under a claim that\nthey are proprietary or privileged. During a conference call with an Assistant Attorney General\nAAG) in the Public Access Bureau, a Department official stated that the costs are furnished with\n\nthe understanding that they are to be maintained confidentially; another Department official\nstated that the cost reports are submitted through encrypted, password - protected e- mail, but\n\nDepartment's contracts with the MCOs, 2 however, provide that MCOs' information is subject\npublic disclosure unless expressly marked as confidential: \n\nto\n\nConfidential Information. It is understood that each Party to\nthis Contract, including its agents and Subcontractors, may have or\ngain access to Confidential Information or data owned or\n\nmaintained by the other Party in the course of carrying out its\nresponsibilities under this Contract. Contractor shall presume that\n\nall\n\ninformation received from the State or to which it gains access\n\npursuant\n\nto this Contract\n\nis confidential. Contractor's\n\ninformation (excluding information regarding rates paid by\nto its Providers and Subcontractors), unless clearly\nContractor\nmarked as confidential and exempt from disclosure under the\n\nIllinois Freedom of Information Act, shall be considered\n\npublic. No confidential data collected, maintained, or used in the\n\ncourse of performance of the Contract shall be disseminated except\nas authorized by law and with the written consent of the disclosing\nParty, either during the term of the Contract or thereafter, or as\notherwise set forth in this Contract. (Emphasis added). 3\n\nBecause the information provided to this office indicates that the cost reports are not clearly\nmarked confidential, they were not furnished under a claim of confidentiality and are subject to\npublic disclosure under the Department's contracts with the MCOs. \n\nEven if the costs reports had been submitted under a claim that they were\n\nproprietary, privileged, or confidential, the Department and the MCOs have not demonstrated\nthat disclosure of the reports would cause competitive harm. Doing so requires a showing \"' by\nspecific factual or evidentiary material\nI) the person or entity from which information\nwas obtained actually faces competition; and (2) substantial harm to a competitive position\nwould likely result\nEmphasis\nadded.) Cooper v. Dep' t of the Lottery, 266 I11. App. 3d 1007, 1013 (1st Dist. 1994) (quoting\nCalhoun v. Lyng, 864 F. 2d 34, 36 (5th Cir. 1988)). \n\nfrom disclosure of the information in the agency's records.\"' (that: (20n June 27, 2019, the Departments FOIA officer confirmed that each of the MCOs signed\n\ncontracts containing the terms in the model contract posted on the Department's website. \n\nState of Illinois Contract between the Department of Healthcare and Family Services and [ Model\n\nContract] for Furnishing Health Services by a Managed Care Organization, § 9. 1. 6 (undated), available at\nhttps:// www. illinois. gov/ hfs/ SiteCollectionDocuments/ 2018MODELCONTRACTadministrationcopy.\n\nThe Department's response to this office included several\n\nletters or e- mails in\n\nwhich MCOs contended, among other things, that the MCOs' cost reports contain detailed\ninformation that would provide insight\nThey contended that competitors could exploit that information to steer away their healthcare\nproviders and underbid MCOs for future contracts, and asserted that health care providers could\n\ninto the MCOs' strategies for coordinating medical care. \n\nuse it to demand higher reimbursements in negotiations. One MCO contended that \" release of\n\nthe redacted information would allow a [ MCO] competitor to calculate [\n\nthe MCO's] MLRs\n\nloss ratios] by cohorts by combining the redacted information with other blinded\n\nmedical\ninformation that is currently publicly available, which could be used to gain insight\nMCO's] financial\n\nterms, rates, and arrangements.\"\n\n4 The Department's response and several of\n\ninto [ the\n\nthe MCOs relied on specific contractual\nMCOs are required to submit concerning \" MCO eligibility, revenue, medical expenses, medical\nexpense adjustments, estimated unpaid claim liability, quality improvement expenses, operating\nexpenses, and MCO assessments and taxes. i5 In his reply, Mr. Werner asserted that the MCOs' \ncompetitive harm arguments were based on speculation rather than facts, and contended that the\n\nlanguage describing the expansive information that\n\ncost\n\nreports are not\n\nThere is no plausible way I could use this information to tell\nwhat each plan pays a specific hospital or other provider type. None. The MCOs do not offer\n\nrates. * * * \n\nany broad or detailed explanation [ of] how this could occur. i6\n\nBased on this office's confidential review, the information contained in the cost\n\nreports is much more limited than the information described in MCOs' contracts. Although it is\n\nundisputed that the MCOs face competition in the healthcare services industry, the cost reports\nthemselves do not reveal any strategic information concerning the delivery of care. They do not\nreflect the payment or denial of specific claims, or rates for specific treatments. Instead, the cost\n\nreports contain aggregate data concerning broad categories of medical services. The conclusory\nassertion that information in the cost reports could be combined with other publicly -available\ninformation to gain insight\nby specific factual and evidentiary material. The Department and the MCOs have not\ndemonstrated how disclosure of the costs reports could be exploited by competitors to cause the\ntype of harm that section 7(1)(g) is designed to prevent. \n\nterms, rates, and arrangements is unsupported\n\ninto a MCO's financial\n\nLetter from Jennifer Pipersburgh, Associate General Counsel, Legal Division, Blue Cross and\n\nBlue Shield of Illinois, to Sherri K. Sadala, Compliance Manager, Illinois Department of Healthcare and Family\nServices, Bureau of Managed Care (January 31, 2019), at 2. \n\nState of Illinois Contract between the Department of Healthcare and Family Services and [ Model\n\nContract] for Furnishing Health Services by a Managed Care Organization, § 7. 11.\nhttps:// www.illinois.gov/hfs/ SiteCollectionDocuments/ 2018MODELCONTRACTadministrationcopy.pdf (last\n\nFurther, Article VIII, section 1(c) of the Illinois Constitution of 1970 provides that\ndeports and records of the obligation, receipt and use of public funds of the State, units of local\n\ngovernment and school districts are public records available for inspection by the public\naccording to law.\" Section 2. 5 of FOIA (5 ILCS 140/ 2. 5 (West 2018)) correspondingly provides\nthat \"[ a] ll records relating to the obligation, receipt, and use of public funds of the State, units of\nlocal government, and school districts are public records subject to inspection and copying by the\npublic.\" During the conference call with the AAG, Department officials explained that the\nreports are used to assess whether MCOs have provided sufficient data for the Department's\n\nmonitoring of claims and assessments of MCO performance; MCOs that fail to provide sufficient\ndata can face a fine of $100, 000 or even the suspension of beneficiaries being assigned to their\nhealth plans. The data also is considered \" in the development of actuarially sound capitation\nrates (encounter data may also be used).\" 7 \" Capitation\" is \"[ a] method of paying a healthcare\nprovider based on the number of members in a health -benefit plan that the provider contracts to\n\ntreat. • The health plan's sponsor agrees to pay a fixed amount per person each period, regardless\nof what services are provided.\" Black's Law Dictionary (11th ed. 2019), available at Westlaw\nBLACKS. Thus, the cost reports are considered in determining how much MCOs are paid under\ntheir contracts, and cost reports with insufficient data provide a basis for levying hefty fines\nagainst MCOs. Because such records directly and unequivocally relate to the receipt and use of\npublic funds, they are subject\n\nto disclosure under section 2. 5 of FOIA. \n\nTwo of the MCOs' letters contained brief references to sections 7(1)(t) and 7(1)(u) \n\nof FOIA (5 ILCS 140/ 7(1)(t), (I)(u) (West 2018)), but did not explain how those exemptions\n\nt) exempts from disclosure \"[ i] nformation contained in or\napply to the cost reports. Section 7(1)(related to examination, operating, or condition reports prepared by, on behalf of, or for the use of\na public body responsible Tor the regulation or supervision of financial institutions or insurance\ncompanies, unless disclosure is otherwise required by State law.\" Even if the cost reports could\nbe construed as falling within the scope of the first clause of this exemption, the second clause\nrenders the exemption inapplicable because disclosure of the cost reports is required by section\n2. 5 of FOIA. Section 7(1)(u) exempts from disclosure \"[] i] nformation that would disclose or\n\nmight lead to the disclosure of secret or confidential\n\ninformation, codes, algorithms, programs, or\n\nprivate keys intended to be used to create electronic or digital signatures under the Electronic\n\nCommerce Security Act.\" There is no indication that the cost reports have any connection to the\ncreation of electronic or digital signatures. \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Department provide Mr. Werner with copies of the cost reports. The Public\nAccess Counselor has determined that resolution of this matter does not require the issuance of a\n\nbinding opinion. This file is closed. If you have any questions, please contact me at (312) 814- \n6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n56759 f 71g improper sa"}
{"id":931,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-12-11","case_number":null,"request_numbers":["56946"],"title":"Chicago Legislative Reference Bureau violated FOIA by omitting denier's name and title","filename":"56946, issued December 11, 2023.pdf","rel_path":null,"word_count":1669,"summary":"The requester challenged the City of Chicago Legislative Reference Bureau's denial of a FOIA request on procedural grounds, specifically alleging the Bureau failed to identify the individual responsible for the denial as required by section 9(a). The PAC determined that the Bureau's failure to provide a name and title violated section 9(a) but closed the file without issuing a binding opinion.","plain_summary":"A requester asked for records from the City of Chicago's Legislative Reference Bureau, but the Bureau denied the request without listing the name and title of the person who made the decision. The Attorney General's office agreed that this violated the law, which requires public bodies to identify the specific person responsible for a denial. The case was closed because the PAC determined a formal binding opinion was not necessary.","holding":"The Legislative Reference Bureau violated section 9(a) of FOIA by failing to include the name and title of the person responsible for the denial in its response letter.","legal_question":"Does a public body's failure to include the name and title of the person responsible for a FOIA denial in its response letter violate the procedural requirements of section 9(a) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/9"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"City of Chicago Legislative Reference Bureau","requesting_party":null,"pac_outcome":"Violation found regarding procedural requirements","pac_law_type":null,"subject_category":"FOIA procedure","subject_description":"The requester sought records processed by a former employee and challenged the procedural adequacy of the Bureau's denial letter.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_a/56946%2C%20issued%20December%2011%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA denial","procedural requirements","section 9(a)","public body response"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 11, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nLegislative Reference Bureau\n121 North LaSalle Street,  Room 200\nChicago, Illinois 60602\nlegislativereference@cityofchicago.\n\norg\n\nRE:    FOIA Request for Review –  2019 PAC 56946\n\nDear\n\nand Legislative Reference Bureau: \n\nThis determination is issued pursuant\n\nto section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2022)).   \n\nOn January 29, 2019, \n\nsubmitted a FOIA request to the Legislative\nReference Bureau ( Bureau)  of the City Council ( Council)  for the City of Chicago ( City)  seeking\ncopies of \"all FOIA documents and FOIA records that [name]  reviewed, processed, and\ncompleted when she worked at the Legislative Reference Bureau from March 1, 2016 through\nFebruary 25, 2018.\" 1 On February 5, 2019, the Bureau denied the request in its entirety pursuant\nto section 7(1)( f) of FOIA ( 5 ILCS 140/ 7(1)( f) (West 2018)).  \n\nRequest for Review.   He\ndid not challenge the substance of the Board's denial, but alleged only that the Bureau's denial\n\nOn February 21, 2019,  this office received\n\n1E- mail from\n\nto Legislative Reference Bureau FOIA Officer (January 29, 2019).   \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fLegislative Reference Bureau\nDecember 11,  2023\nPage 2\n\nletter did not comply with the procedural requirements of section 9(a) of FOIA.2 Specifically, he\nasked this office to \" review whether the Legislative Reference Bureau was wrong to not include\nthe name(s)  and job title(s)  in the Bureau's response when the Bureau denied my FOIA request.\" 3\n\nIn response to this office's letter asking the Bureau to respond to\n\nallegation,  the Bureau asserted that it responded to\ndoes not consider itself to be a public body subject to the requirements of FOIA. \n\nFOIA request as a courtesy,  but it\n\nSection 3(a) of FOIA4 requires each \" public body\" to \"make available to any\n\nperson for inspection or copying all public records,  except as provided in Section 7\"  of FOIA.  \nSection 2(a) of FOIA defines a \" public body\" as: \n\nA]ll legislative, executive, administrative, or advisory bodies of\nthe State,  state universities and colleges,  counties,  townships, \ncities, villages, incorporated towns, school districts and all other\nmunicipal corporations,  boards,  bureaus,  committees,  or\ncommissions of this State, any subsidiary bodies of any of the\nforegoing including but not limited to committees and\nsubcommittees thereof.   \n\nThe plain language of that definition encompasses legislative bodies of cites, such as the City\nCouncil,  as well as their subsidiary bodies.   \n\nIn support of its contention that it is not a public body,  the Bureau stated:  \n\nThe Legislative Reference Bureau ( LRB)  performs a wide range of\nfunctions for members of the Chicago City Council, City Council\nCommittees,  and Aldermanic Staff.   The LRB reports to the\nPresident Pro Tempore of the City Council.  While called a\nBureau,  the LRB functions as an extension of the staff of the\nmembers of the City Council.  The LRB does not provide services\nto the public,  nor is it responsible for supplying services to the City\n\n25 ILCS 140/9(a) ( West 2018).  This provision states, in pertinent part: \" Each public body denying\n\na request for public records shall notify the requester in writing of the decision to deny the request, the reasons for\nthe denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles\nor positions of each person responsible for the denial.\"  (Emphasis added.) \n\n3E- mail from\n\nto Public Access Counselor (February 21, 2019).  \n\n45 ILCS 140/3(a) ( West 2018).   \n\n\fLegislative Reference Bureau\nDecember 11,  2023\nPage 3\n\nitself.  Accordingly, like members of the City Council in the\nperformance of their duties,  the LRB is not subject to the\nprovisions of the Freedom of Information Act.[5] \n\nThe Bureau's reference to Council members acting in the performance of their\nindividual duties appears to suggest that it is analogizing itself to an individual alderman.   The\nIllinois Appellate Court has concluded that individual public officers do not fall within the\ndefinition of a \" public body\"  under FOIA.   Quinn v. Stone,  211 Ill. App.  3d 809,  812 ( 1st Dist. \n1991).  In that case, the court upheld the dismissal of a complaint for injunctive relief against a\nCity of Chicago alderman because the alderman was \" not the proper recipient\"  of a FOIA request\nto which he did not respond.  Quinn, 211 Ill. App. 3d at 812.  Based on that precedent, the Public\nAccess Bureau has consistently determined that public officials are not required to respond to\nFOIA requests submitted to them individually.  See, for example, Ill. Att'y Gen. PAC Req. Rev. \nLtr. 65842,  issued December 15,  2020,  at 2 (\" Requests for public records concerning individual\nsenators are properly submitted to the public bodies to which they belong, not to the\nrepresentatives themselves.\"). \n\nSection 2-8-820 of the City' s Municipal Code ( Code) 6 governs the establishment\n\nof the Bureau stating, \"[ t]here is hereby created and established a legislative reference bureau\nlegislative reference bureau'.   The said bureau shall be\nwhich shall be known as the ' city council\nunder the control, supervision and direction of the President Pro Tempore of the City Council.\"  \nSection 2-8-850 of the Code7 sets forth the Bureau' s powers and duties,  providing: \n\nIt shall be the duty of said bureau: \n\na)    To prepare,  upon the request of any member of the city\ncouncil, ordinances, resolutions and orders proposed to be\nintroduced in the city council by said members,  including\namendments, substitutes and revisions of existing or proposed\nordinances,  resolutions and orders; \n\nb)    To collect,  catalogue,  classify,  index,  completely digest, \ntopically index, checklist and summarize all ordinances, \nresolutions and orders as well as amendments or revisions thereof, \n\nBarnaby, Assistant Attorney General, Illinois Attorney General's Office (March 18, 2019).  \n\n5Letter from Legislative Reference Bureau, Office of Alderman Margaret Laurino to Shannon\n\n6Chicago Municipal Code § 2-8-820 (amended September 11, 2013).  \n\n7Chicago Municipal Code § 2-8-850 (amended September 11, 2013).  \n\n\fLegislative Reference Bureau\nDecember 11,  2023\nPage 4\n\nif any, introduced in the city council, as soon as practicable after\nthe same have been printed,  and to furnish copies of the digest, \nindexed and topically indexed, to each member of the city council\nafter each meeting of the city council; \n\nc)    To collect,  assemble and catalogue in such manner as may\nmake the same readily accessible, the ordinances, resolutions, \norders and laws of other cities and municipal corporations,  and\nsuch other printed or written material as may aid the members of\nin the performance of their duties; \nthe city council\n\nd)    To coordinate and provide to the members of the City Council\nsuch trainings, briefings and seminars that the President Pro\nTempore deems useful and informative. \n\nIt is apparent from these provisions that the Bureau is a subsidiary body of the City Council.  \nCourts consider three primary factors in determining whether an entity is a subsidiary body under\nFOIA and the Open Meetings Act: 8  \"( 1)  whether the entity has a legal existence independent of\ngovernment resolution; (2) the nature of the functions performed by the entity; and (3) the degree\nof governmental control exerted over the entity.\"   Hopf v. Topcorp,  256 Ill. App.  3d 887,  892 ( 1st\nDist. 1993).  The Bureau was statutorily created by the City, and there is no indication that it has\ndeveloped an independent\nThe Bureau is under government control exercised by the Council's President Pro Tempore.  \nMoreover,  the Bureau' s duties include performing administrative and legislative functions for the\nCouncil.  Unlike an individual alderman, or a committee that advises only an individual\nalderman,  the above- quoted Code provisions indicate that the Bureau supports and advises the\nentire Council, which is undoubtedly a \"public body.\"  Therefore, this office concludes that, as a\nsubsidiary body of the City Council,  the Bureau falls under the definition of a \" public body\"  in\nsection 2(a) of FOIA.9\n\nlegal existence as a separate entity such as a not- for-profit corporation.  \n\n85 ILCS 120/1 et seq. ( West 2018).   \n\n9Based on this office's review of the City's webpage, it appears that FOIA requests seeking Bureau\nrecords may be submitted to the City Clerk's Office, which handles FOIA requests for various City Council records. \nSee Office of the City Clerk Anna M. Valencia, City of Chicago, Freedom of Information Act, \nhttps:// www.chicityclerk.com/office-info/freedom-information-act (\" Our office is responsible for: City Council\nlegislation, ordinances, and journals; Data regarding dog registrations in the City; Data regarding Chicago City\nVehicle Stickers; Aldermanic staff personnel files; Information regarding House Share Restrictions and Cannabis\nRestrictions\"). \n\n\fLegislative Reference Bureau\nDecember 11,  2023\nPage 5\n\nBecause the Bureau submitted information to this office confidentially concerning\n\nallegation that the Bureau' s response violated section 9(a)  of FOIA,  this office is not\n\nat liberty to disclose that information.10 However, this office notes that the plain language of\nsection 9(a)  expressly requires a public body to identify the person responsible for a denial by\ntheir names and titles or positions.  \"Legislative Reference Bureau\"  does not identify the name\nand title of any person;  therefore,  it does not satisfy the requirements of section 9(a).   If the\nBureau responds directly to future FOIA requests, it should be mindful of its obligation to fully\ncomply with the requirements of section 9(a). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have questions, you may\ncontact me at the Springfield address at the bottom of the first page of this letter.    \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n56946 f not a pb improper mun\n\n10See 5 ILCS 140/9.5(c) (West 2022).   \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A legislative reference bureau's denial letter","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-56946/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 11, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nLegislative Reference Bureau\n121 North LaSalle Street, Room 200\nChicago, Illinois 60602\nlegislativereference@cityofchicago.\n\norg\n\nRE: FOIA Request for Review – 2019 PAC 56946\n\nDear\n\nand Legislative Reference Bureau: \n\nThis determination is issued pursuant\n\nto section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2022)). \n\nOn January 29, 2019, \n\nsubmitted a FOIA request to the Legislative\nReference Bureau (Bureau) of the City Council (Council) for the City of Chicago (City) seeking\ncopies of \"all FOIA documents and FOIA records that [name] reviewed, processed, and\ncompleted when she worked at the Legislative Reference Bureau from March 1, 2016 through\nFebruary 25, 2018.\" 1 On February 5, 2019, the Bureau denied the request in its entirety pursuant\nto section 7(1)(f) of FOIA (5 ILCS 140/ 7(1)(f) (West 2018)). \n\nRequest for Review. He\ndid not challenge the substance of the Board's denial, but alleged only that the Bureau's denial\n\nOn February 21, 2019, this office received\n\n1E- mail from\n\nto Legislative Reference Bureau FOIA Officer (January 29, 2019). \n\nletter did not comply with the procedural requirements of section 9(a) of FOIA.2 Specifically, he\nasked this office to \" review whether the Legislative Reference Bureau was wrong to not include\nthe name(s) and job title(s) in the Bureau's response when the Bureau denied my FOIA request.\" 3\n\nIn response to this office's letter asking the Bureau to respond to\n\nallegation, the Bureau asserted that it responded to\ndoes not consider itself to be a public body subject to the requirements of FOIA. \n\nFOIA request as a courtesy, but it\n\nSection 3(a) of FOIA4 requires each \" public body\" to \"make available to any\n\nperson for inspection or copying all public records, except as provided in Section 7\" of FOIA. \nSection 2(a) of FOIA defines a \" public body\" as: \n\nA]ll legislative, executive, administrative, or advisory bodies of\nthe State, state universities and colleges, counties, townships, \ncities, villages, incorporated towns, school districts and all other\nmunicipal corporations, boards, bureaus, committees, or\ncommissions of this State, any subsidiary bodies of any of the\nforegoing including but not limited to committees and\nsubcommittees thereof. \n\nThe plain language of that definition encompasses legislative bodies of cites, such as the City\nCouncil, as well as their subsidiary bodies. \n\nIn support of its contention that it is not a public body, the Bureau stated: \n\nThe Legislative Reference Bureau (LRB) performs a wide range of\nfunctions for members of the Chicago City Council, City Council\nCommittees, and Aldermanic Staff. The LRB reports to the\nPresident Pro Tempore of the City Council. While called a\nBureau, the LRB functions as an extension of the staff of the\nmembers of the City Council. The LRB does not provide services\nto the public, nor is it responsible for supplying services to the City\n\n25 ILCS 140/9(a) (West 2018). This provision states, in pertinent part: \" Each public body denying\n\na request for public records shall notify the requester in writing of the decision to deny the request, the reasons for\nthe denial, including a detailed factual basis for the application of any exemption claimed, and the names and titles\n\nitself. Accordingly, like members of the City Council in the\nperformance of their duties, the LRB is not subject to the\nprovisions of the Freedom of Information Act.[5] \n\nThe Bureau's reference to Council members acting in the performance of their\nindividual duties appears to suggest that it is analogizing itself to an individual alderman. The\nIllinois Appellate Court has concluded that individual public officers do not fall within the\ndefinition of a \" public body\" under FOIA. Quinn v. Stone, 211 Ill. App. 3d 809, 812 (1st Dist. \n1991). In that case, the court upheld the dismissal of a complaint for injunctive relief against a\nCity of Chicago alderman because the alderman was \" not the proper recipient\" of a FOIA request\nto which he did not respond. Quinn, 211 Ill. App. 3d at 812. Based on that precedent, the Public\nAccess Bureau has consistently determined that public officials are not required to respond to\nFOIA requests submitted to them individually. See, for example, Ill. Att'y Gen. PAC Req. Rev. \nLtr. 65842, issued December 15, 2020, at 2 (\" Requests for public records concerning individual\nsenators are properly submitted to the public bodies to which they belong, not to the\nrepresentatives themselves.\"). \n\nSection 2-8-820 of the City's Municipal Code (Code) 6 governs the establishment\n\nof the Bureau stating, \"[ t]here is hereby created and established a legislative reference bureau\nlegislative reference bureau'. The said bureau shall be\nwhich shall be known as the ' city council\nunder the control, supervision and direction of the President Pro Tempore of the City Council.\" \nSection 2-8-850 of the Code7 sets forth the Bureau's powers and duties, providing: \n\nIt shall be the duty of said bureau: \n\na) To prepare, upon the request of any member of the city\ncouncil, ordinances, resolutions and orders proposed to be\nintroduced in the city council by said members, including\namendments, substitutes and revisions of existing or proposed\nordinances, resolutions and orders; \n\nb) To collect, catalogue, classify, index, completely digest, \ntopically index, checklist and summarize all ordinances, \n\nif any, introduced in the city council, as soon as practicable after\nthe same have been printed, and to furnish copies of the digest, \nindexed and topically indexed, to each member of the city council\nafter each meeting of the city council; \n\nc) To collect, assemble and catalogue in such manner as may\nmake the same readily accessible, the ordinances, resolutions, \norders and laws of other cities and municipal corporations, and\nsuch other printed or written material as may aid the members of\nin the performance of their duties; \nthe city council\n\nd) To coordinate and provide to the members of the City Council\nsuch trainings, briefings and seminars that the President Pro\nTempore deems useful and informative. \n\nIt is apparent from these provisions that the Bureau is a subsidiary body of the City Council. \nCourts consider three primary factors in determining whether an entity is a subsidiary body under\nFOIA and the Open Meetings Act: 8 \"(1) whether the entity has a legal existence independent of\ngovernment resolution; (2) the nature of the functions performed by the entity; and (3) the degree\nof governmental control exerted over the entity.\" Hopf v. Topcorp, 256 Ill. App. 3d 887, 892 (1st\nDist. 1993). The Bureau was statutorily created by the City, and there is no indication that it has\ndeveloped an independent\nThe Bureau is under government control exercised by the Council's President Pro Tempore. \nMoreover, the Bureau's duties include performing administrative and legislative functions for the\nCouncil. Unlike an individual alderman, or a committee that advises only an individual\nalderman, the above- quoted Code provisions indicate that the Bureau supports and advises the\nentire Council, which is undoubtedly a \"public body.\" Therefore, this office concludes that, as a\nsubsidiary body of the City Council, the Bureau falls under the definition of a \" public body\" in\nsection 2(a) of FOIA.9\n\nlegal existence as a separate entity such as a not- for-profit corporation. \n\n85 ILCS 120/1 et seq. (West 2018). \n\n9 Based on this office's review of the City's webpage, it appears that FOIA requests seeking Bureau\nrecords may be submitted to the City Clerk's Office, which handles FOIA requests for various City Council records. \nSee Office of the City Clerk Anna M. Valencia, City of Chicago, Freedom of Information Act, \nhttps:// www.chicityclerk.com/office-info/freedom-information-act (\" Our office is responsible for: City Council\nlegislation, ordinances, and journals; Data regarding dog registrations in the City; Data regarding Chicago City\nVehicle Stickers; Aldermanic staff personnel files; Information regarding House Share Restrictions and Cannabis\n\nBecause the Bureau submitted information to this office confidentially concerning\n\nallegation that the Bureau's response violated section 9(a) of FOIA, this office is not\n\nat liberty to disclose that information.10 However, this office notes that the plain language of\nsection 9(a) expressly requires a public body to identify the person responsible for a denial by\ntheir names and titles or positions. \"Legislative Reference Bureau\" does not identify the name\nand title of any person; therefore, it does not satisfy the requirements of section 9(a). If the\nBureau responds directly to future FOIA requests, it should be mindful of its obligation to fully\ncomply with the requirements of section 9(a). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\ncontact me at the Springfield address at the bottom of the first page of this letter. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n56946 f not a pb improper mun\n\n10 See 5 ILCS 140/9.5(c) (West 2022)."}
{"id":932,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-06-05","case_number":null,"request_numbers":["57377"],"title":"Park Ridge Police Department improperly invoked federal exemptions for death investigation records","filename":"57377, issued June 5, 2023.pdf","rel_path":null,"word_count":2178,"summary":"The Chicago Sun-Times requested records regarding a death investigation and communications with federal agencies, which the Park Ridge Police Department denied citing FOIA exemptions. The PAC determined the Department improperly withheld the records and directed their disclosure, subject to specific redactions.","plain_summary":"A reporter requested police records about a death investigation from the Park Ridge Police Department, which refused to provide them, citing federal FOIA exemptions. The Illinois Attorney General's Public Access Bureau reviewed the case and determined that the department's response violated the Illinois Freedom of Information Act because the department, as a state public body, could not rely on federal FOIA exemptions. The determination does not specify any remedy or order to release the records.","holding":"The Park Ridge Police Department's response to the FOIA request violated FOIA by improperly relying on federal FOIA exemptions 7(A) and 8, and by failing to provide clear and convincing evidence for any applicable state exemption.","legal_question":"Whether the Park Ridge Police Department properly invoked FOIA exemptions 7(1)(a), 7(1)(d)(i), and 7(1)(t) to withhold records concerning a death investigation.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7(1)(d)(i)","7(1)(t)"],"public_body":"Park Ridge Police Department","requesting_party":"Mr. Tim Novak (Chicago Sun-Times)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records related to a death investigation and communications between the police department and federal agencies.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_t/57377%2C%20issued%20June%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","death investigation","FOIA denial","records disclosure"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMr. Tim Novak\nChicago Sun- Times\n[street address redacted for site publication -- see original PDF]\ntnovak@suntimes. com\n\nVia electronic mail\nMr. Patrick Mozdzierz\nPolice Records Technician FOIA Officer\nPark Ridge Police Department\n200 South Vine Avenue\nPark Ridge,  Illinois 60068\npmozdzierz@parkridgepolice. org\n\nRE:  FOIA Request for Review –  2019 PAC 57377\n\nDear Mr. Novak and Mr. Mozdzierz: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Park Ridge Police Department\nDepartment)  to Mr. Tim Novak' s March 19, 2019,  FOIA request violated FOIA. \n\nOn that date,  Mr. Novak,  on behalf of the Chicago Sun-Times, submitted a FOIA\n\nrequest to the Department seeking copies of all records regarding the death investigation of a\nnamed individual since the Department' s last disclosure of responsive records to him on February\n12, 2018.   Among other things,  Mr. Novak specifically requested records of communications\nbetween the Department and any federal agencies regarding the named individual' s death.   On\nMarch 21, 2019,  the Department\nrecords regarding the death investigation.   Further,  the Department denied the portion of Mr. \nNovak' s request seeking records of communications with federal agencies,  citing section 7(1)( a) \nof FOIA ( 5 ILCS 140/ 7(1)(a) ( West 2018)).   In its denial letter,  the Department cited exemptions\n\ninformed Mr. Novak that it did not possess any additional\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 2\n\n7(A) and 8 of the Federal FOIA ( 5 U.S.C. § 552(b)( 7)(A), (b)( 8) (West 2018))  as its basis for\nasserting the section 7(1)( a) exemption.   On March 22, 2019,  this office received Mr. Novak' s\nRequest for Review contesting the Department' s denial. \n\nOn March 28, 2019,  this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide un-redacted copies of the responsive records and a detailed\nexplanation of the legal and factual bases for the applicability of section 7(1)( a)  to the withheld\nrecords,  including an explanation of how Federal FOIA exemptions 7(A) and 8 apply to the\nresponsive records.   On April 8, 2019,  the Department provided the requested materials;  on April\n9, 2019,  this office forwarded a copy of the Department' s answer to Mr. Novak.   He did not\nreply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/ 1.2 (West 2018).   Section 3(a)  of FOIA ( 5 ILCS 140/ 3(a) ( West 2018))  further provides:  \nEach public body shall make available to any person for inspection or copying all public\nrecords,  except as otherwise provided in Section 7 of this Act.\"  The exemptions from disclosure\ncontained in section 7 of FOIA ( 5 ILCS 140/ 7 (West 2018))  are to be narrowly construed.   See\nLieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, 407 ( 1997).   Bare\nconclusions without a detailed rationale do not satisfy a public body's burden of explaining how\nexemptions are applicable.   See Rockford Police Benevolent and Protective Ass'n, Unit No. 6 v. \nMorrissey,  398 Ill. App. 3d 145, 151 ( 2d Dist. 2010) ( citing Illinois Education Ass'n v. Illinois\nState Board of Education,  204 Ill. 2d 456, 464 ( 2003)). \n\nSection 7(1)(a)  of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\"  In connection with section 7(1)(a),  the Department cited section 7(A) of the\nFederal FOIA, which exempts from disclosure, \" records or information compiled for law\nenforcement purposes,  but only to the extent that the production of such law enforcement records\nor information ( A) could reasonably be expected to interfere with enforcement proceedings[.]\"   \n\nThe Department offered no explanation for its assertion of Federal FOIA\n\nexemptions 7(A) and 8 other than \" there is a pending federal\nof our records,  and our federal contact has requested that our agency not release any\n\ninvestigation relating to the subject\n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 3\n\ncommunications between our agency and any federal agency because release of these records\ncould interfere with enforcement proceedings relating to their investigation.\" 1\n\nThe Federal FOIA, however,  is not applicable to Mr. Novak' s request because the\nis not a Federal \" agency\"  subject to the requirements of Federal FOIA.  See 5 U.S.C. \n\nDepartment\n551(1) (2018) ( defining \"' agency'\"  as \" each authority of the Government of the United States, \nwhether or not it is within or subject to review by another agency,\"  subject to certain exceptions) \nand 5 U.S.C. §552( f)(1) (2018) ( applying that definition to Federal FOIA).   The Department\nis a\npublic body\"  subject to the requirements of the Illinois FOIA.  See 5 ILCS 140/ 2(a) ( West\n2020) ( defining \" public body\"  to include \" all legislative,  executive,  administrative,  or advisory\nbodies of the State,  state universities and colleges,  counties,  townships,  cities,  villages, \nincorporated towns,  school districts and all other municipal corporations,  boards,  bureaus, \ncommittees,  or commissions of this State[ ]\")  and 5 ILCS 140/ 1.2 (West 2020) (\" All records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"). \n\nTo the extent the Department\n\nintended to cite the corresponding law enforcement\n\nexemption in section 7(1)(d)(i) of FOIA, 2 that provision exempts from disclosure:  \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings conducted by any law\nenforcement or correctional agency that is the recipient of the\nrequest[.][ 3] \n\nThe classification of information as 'law enforcement'  or 'investigatory'  does not\n\nnecessarily foreclose access unless it can be shown,  in a particular case,  that disclosure would\ninterfere with law enforcement and would,  therefore,  not be in the public interest.\"   Baudin v. \n\n1Letter from Julie Nistler,  Police Records Supervisor/ FOIA Officer,  City of Park Ridge Police\n\nDepartment,  to Laura S. Harter,  Deputy Bureau Chief, Public Access Bureau,  Office[]  of the Attorney General\nApril 8, 2019). \n\n25 ILCS 140/ 7(1)(d)(i) (West 2018). \n\n3Because a literal reading of the phrase \" that is the recipient of the request\"  would lead to\n\ninconvenient,  unjust,  or absurd results,  a public body may assert a section 7(1)( d) exemption for records of other\npublic bodies involved in the same law enforcement proceeding or criminal\nKenilworth,  2019 IL App ( 1st)  170780, ¶ 33, 156 N.E.3d 480, 491- 92 ( 2019). \n\ninvestigation.   Kelly v. Village of\n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 4\n\nCity of Crystal Lake, 192 Ill. App. 3d 530, 536 ( 2d Dist. 1989).   Conclusory statements that the\ndisclosure of records would obstruct a law enforcement proceeding are insufficient to support the\nassertion of the pending law enforcement proceeding exemption.   See Day v. City of Chicago, \n388 Ill. App. 3d 70, 74-77 (1st Dist. 2009).   A public body must demonstrate how disclosure of\nrecords would interfere with or obstruct an investigation in order to properly withhold records\npursuant to section 7(1)(d)(i) of FOIA.  The Attorney General has issued a binding opinion\nconcluding that the mere existence of a pending investigation does not demonstrate by clear and\nconvincing evidence that any records are exempt from disclosure.   Ill. Att'y Gen.  Pub.  Acc. Op. \nNo. 17-001, issued March 14, 2017.   See also Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 33927,  issued\nMay 6, 2015;  Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 30811,  issued November 21, 2014;  Ill. Att'y\nGen.  PAC Req.  Rev. Ltr. 26563,  issued November 21, 2013. \n\nThe Department' s assertions that the responsive records are exempt in their\nentireties are generalized and conclusory;  it did not provide clear and convincing evidence\ndemonstrating how disclosure of any or all of the specific records would interfere with any\npending investigation.   Further,  it is not apparent to this office how the withheld records would\ninterfere with any pending investigation. 4\n\ninstitutions[.]\"   As noted above,  the Federal FOIA does not apply to the\n\nThe Department also cited exemption 8 of the Federal FOIA, which exempts from\ndisclosure matters that are \" contained in or related to examination,  operating,  or condition reports\nprepared by, on behalf of, or for the use of an agency responsible for the regulation or\nsupervision of financial\nDepartment' s records.   Exemption 8 of the Federal FOIA is substantially similar to section\n7(1)(t) of the Illinois FOIA, which exempts from disclosure \"[ i]nformation contained in or\nrelated to examination,  operating,  or condition reports prepared by, on behalf of, or for the use of\na public body responsible for the regulation or supervision of financial\ncompanies,  or pharmacy benefit managers,  unless disclosure is otherwise required by State\nlaw.\" 5\n\ninstitutions,  insurance\n\nIn interpreting exemption 8 of the Federal FOIA, 6 the federal courts have\n\ndetermined that the exemption is intended to \"ensure the security of financial\nSpecifically,  there was concern that disclosure of examination,  operation,  and condition reports\n\ninstitutions. \n\nprecludes this office from further identifying the nature of the records.  5 ILCS 140/ 9.5(c) (West 2020). \n\n4Because the Department provided the records to this office confidentially,  section 9.5(c) of FOIA\n\n55 ILCS 140/ 7(1)(t) (West 2018). \n\n6Although interpretations of the Federal FOIA are not controlling,  such precedents are considered\nby the courts in construing the Illinois FOIA because both statutes promote full disclosure of public records subject\ntot limited exceptions.   See Margolis v. Director,  Illinois Dep' t of Revenue,  180 Ill. App.  3d 1084,  1087 ( 1st Dist. \n1989).   \n\n\fMr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 5\n\ncontaining frank evaluations of the investigated banks might undermine public confidence and\ncause unwarranted runs on banks.\"   Consumers Union of U.S.,  Inc. v. Heimann,  589 F.2d 531, \n534 ( D.C. Cir 1978).   The exemption is also intended \" to safeguard the relationship between the\nbanks and their supervising agencies.   If details of the bank examinations were made freely\navailable to the public and to banking competitors,  there was concern that banks would cooperate\nless than fully with federal authorities.\"   Heimann,  589 F.2d at 534.   In interpreting section\n7(1)(t) of the Illinois FOIA, this office has concluded that the exemption encompasses\ninformation submitted by financial\nGen.  PAC Req.  Rev.  Ltr. 16976,  issued March 26, 2012,  at 4-5 (determining that internal\nmanuals,  guides,  and other training materials withheld by the Illinois Department of Financial\nand Professional Regulation were not exempt pursuant to section 7(1)(t), but that a database of\ninformation submitted by financial\nconnection with the licensing process could be withheld). \n\ninstitutions to regulators for examination purposes.   Ill. Att'y\n\ninstitutions that was used by Department examiners in\n\nThe Department did not explain how the withheld records relate to any\n\nexamination,  operating,  or condition reports\"  used by a financial regulator.   Even if they do, it\ndoes not appear that disclosure of the records would reveal the details of any bank examination.  \nTherefore,  the Department did not meet its burden of establishing that the records are exempt in\ntheir entireties pursuant to section 7(1)(t) of FOIA. \n\nAccordingly,  this office requests that the Department provide Mr. Novak with\n\ncopies of the withheld records;  the Department may redact private information pursuant to\nsection 7(1)(b) of FOIA 7 and the identities of third parties pursuant to section 7(1)(c) of FOIA. 8\n\n75 ILCS 140/ 7(1)(b) (West 2021 Supp.),  as amended by Public Acts 102- 752, effective January 1, \n\n2023;  102-753, effective January 1, 2023;  102- 776, effective January 1, 2023;  102- 791, effective May 13, 2022; \n102- 1055,  effective June 10, 2022. \n\n85 ILCS 140/ 7(1)(c) (West 2021 Supp.),  as amended by Public Acts 102-752, effective January 1, \n\n2023;  102- 753,  effective January 1, 2023;  102- 776,  effective January 1, 2023;  102- 791,  effective May 13, 2022; \n102- 1055,  effective June 10, 2022. \n\n\fr. Tim Novak\nMr. Patrick Mozdzierz\nJune 5, 2023\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (217)  843- 0564 or laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n57377 f 71a improper 71di improper 71t improper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Death investigation records and police-federal communications","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57377/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMr. Tim Novak\nChicago Sun- Times\n[street address redacted for site publication -- see original PDF]\ntnovak@suntimes. com\n\nVia electronic mail\nMr. Patrick Mozdzierz\nPolice Records Technician FOIA Officer\nPark Ridge Police Department\n200 South Vine Avenue\nPark Ridge, Illinois 60068\npmozdzierz@parkridgepolice. org\n\nRE: FOIA Request for Review – 2019 PAC 57377\n\nDear Mr. Novak and Mr. Mozdzierz: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Park Ridge Police Department\nDepartment) to Mr. Tim Novak's March 19, 2019, FOIA request violated FOIA. \n\nOn that date, Mr. Novak, on behalf of the Chicago Sun-Times, submitted a FOIA\n\nrequest to the Department seeking copies of all records regarding the death investigation of a\nnamed individual since the Department's last disclosure of responsive records to him on February\n12, 2018. Among other things, Mr. Novak specifically requested records of communications\nbetween the Department and any federal agencies regarding the named individual's death. On\nMarch 21, 2019, the Department\nrecords regarding the death investigation. Further, the Department denied the portion of Mr. \nNovak's request seeking records of communications with federal agencies, citing section 7(1)(a) \nof FOIA (5 ILCS 140/ 7(1)(a) (West 2018)). In its denial letter, the Department cited exemptions\n\ninformed Mr. Novak that it did not possess any additional\n\n7(A) and 8 of the Federal FOIA (5 U.S.C. § 552(b)(7)(A), (b)(8) (West 2018)) as its basis for\nasserting the section 7(1)(a) exemption. On March 22, 2019, this office received Mr. Novak's\nRequest for Review contesting the Department's denial. \n\nOn March 28, 2019, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide un-redacted copies of the responsive records and a detailed\nexplanation of the legal and factual bases for the applicability of section 7(1)(a) to the withheld\nrecords, including an explanation of how Federal FOIA exemptions 7(A) and 8 apply to the\nresponsive records. On April 8, 2019, the Department provided the requested materials; on April\n9, 2019, this office forwarded a copy of the Department's answer to Mr. Novak. He did not\nreply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2018). Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2018)) further provides: \nEach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Section 7 of this Act.\" The exemptions from disclosure\ncontained in section 7 of FOIA (5 ILCS 140/ 7 (West 2018)) are to be narrowly construed. See\nLieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). Bare\nconclusions without a detailed rationale do not satisfy a public body's burden of explaining how\nexemptions are applicable. See Rockford Police Benevolent and Protective Ass'n, Unit No. 6 v. \nMorrissey, 398 Ill. App. 3d 145, 151 (2d Dist. 2010) (citing Illinois Education Ass'n v. Illinois\nState Board of Education, 204 Ill. 2d 456, 464 (2003)). \n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" In connection with section 7(1)(a), the Department cited section 7(A) of the\nFederal FOIA, which exempts from disclosure, \" records or information compiled for law\nenforcement purposes, but only to the extent that the production of such law enforcement records\nor information (A) could reasonably be expected to interfere with enforcement proceedings[.]\" \n\ncommunications between our agency and any federal agency because release of these records\ncould interfere with enforcement proceedings relating to their investigation.\" 1\n\nThe Federal FOIA, however, is not applicable to Mr. Novak's request because the\nis not a Federal \" agency\" subject to the requirements of Federal FOIA. See 5 U.S.C. \n\nDepartment\n551(1) (2018) (defining \"' agency'\" as \" each authority of the Government of the United States, \nwhether or not it is within or subject to review by another agency,\" subject to certain exceptions) \nand 5 U.S.C. §552(f)(1) (2018) (applying that definition to Federal FOIA). The Department\nis a\npublic body\" subject to the requirements of the Illinois FOIA. See 5 ILCS 140/ 2(a) (West\n2020) (defining \" public body\" to include \" all legislative, executive, administrative, or advisory\nbodies of the State, state universities and colleges, counties, townships, cities, villages, \nincorporated towns, school districts and all other municipal corporations, boards, bureaus, \ncommittees, or commissions of this State[ ]\") and 5 ILCS 140/ 1.2 (West 2020) (\" All records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"). \n\nTo the extent the Department\n\nintended to cite the corresponding law enforcement\n\nexemption in section 7(1)(d)(i) of FOIA, 2 that provision exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings conducted by any law\nenforcement or correctional agency that is the recipient of the\nrequest[.][ 3] \n\nThe classification of information as 'law enforcement' or 'investigatory' does not\n\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. \n\n1 Letter from Julie Nistler, Police Records Supervisor/ FOIA Officer, City of Park Ridge Police\n\nDepartment, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office[] of the Attorney General\nApril 8, 2019). \n\n25 ILCS 140/ 7(1)(d)(i) (West 2018). \n\n3 Because a literal reading of the phrase \" that is the recipient of the request\" would lead to\n\ninconvenient, unjust, or absurd results, a public body may assert a section 7(1)(d) exemption for records of other\n\nCity of Crystal Lake, 192 Ill. App. 3d 530, 536 (2d Dist. 1989). Conclusory statements that the\ndisclosure of records would obstruct a law enforcement proceeding are insufficient to support the\nassertion of the pending law enforcement proceeding exemption. See Day v. City of Chicago, \n388 Ill. App. 3d 70, 74-77 (1st Dist. 2009). A public body must demonstrate how disclosure of\nrecords would interfere with or obstruct an investigation in order to properly withhold records\npursuant to section 7(1)(d)(i) of FOIA. The Attorney General has issued a binding opinion\nconcluding that the mere existence of a pending investigation does not demonstrate by clear and\nconvincing evidence that any records are exempt from disclosure. Ill. Att'y Gen. Pub. Acc. Op. \nNo. 17-001, issued March 14, 2017. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 33927, issued\nMay 6, 2015; Ill. Att'y Gen. PAC Req. Rev. Ltr. 30811, issued November 21, 2014; Ill. Att'y\nGen. PAC Req. Rev. Ltr. 26563, issued November 21, 2013. \n\nThe Department's assertions that the responsive records are exempt in their\nentireties are generalized and conclusory; it did not provide clear and convincing evidence\ndemonstrating how disclosure of any or all of the specific records would interfere with any\npending investigation. Further, it is not apparent to this office how the withheld records would\ninterfere with any pending investigation. 4\n\ninstitutions[.]\" As noted above, the Federal FOIA does not apply to the\n\nThe Department also cited exemption 8 of the Federal FOIA, which exempts from\ndisclosure matters that are \" contained in or related to examination, operating, or condition reports\nprepared by, on behalf of, or for the use of an agency responsible for the regulation or\nsupervision of financial\nDepartment's records. Exemption 8 of the Federal FOIA is substantially similar to section\n7(1)(t) of the Illinois FOIA, which exempts from disclosure \"[ i]nformation contained in or\nrelated to examination, operating, or condition reports prepared by, on behalf of, or for the use of\na public body responsible for the regulation or supervision of financial\ncompanies, or pharmacy benefit managers, unless disclosure is otherwise required by State\nlaw.\" 5\n\ninstitutions, insurance\n\nIn interpreting exemption 8 of the Federal FOIA, 6 the federal courts have\n\ndetermined that the exemption is intended to \"ensure the security of financial\nSpecifically, there was concern that disclosure of examination, operation, and condition reports\n\ninstitutions. \n\nprecludes this office from further identifying the nature of the records. 5 ILCS 140/ 9.5(c) (West 2020). \n\n4 Because the Department provided the records to this office confidentially, section 9.5(c) of FOIA\n\n55 ILCS 140/ 7(1)(t) (West 2018). \n\n6 Although interpretations of the Federal FOIA are not controlling, such precedents are considered\nby the courts in construing the Illinois FOIA because both statutes promote full disclosure of public records subject\ntot limited exceptions. See Margolis v. Director, Illinois Dep' t of Revenue, 180 Ill. App. 3d 1084, 1087 (1st Dist. \n\ncontaining frank evaluations of the investigated banks might undermine public confidence and\ncause unwarranted runs on banks.\" Consumers Union of U.S., Inc. v. Heimann, 589 F.2d 531, \n534 (D.C. Cir 1978). The exemption is also intended \" to safeguard the relationship between the\nbanks and their supervising agencies. If details of the bank examinations were made freely\navailable to the public and to banking competitors, there was concern that banks would cooperate\nless than fully with federal authorities.\" Heimann, 589 F.2d at 534. In interpreting section\n7(1)(t) of the Illinois FOIA, this office has concluded that the exemption encompasses\ninformation submitted by financial\nGen. PAC Req. Rev. Ltr. 16976, issued March 26, 2012, at 4-5 (determining that internal\nmanuals, guides, and other training materials withheld by the Illinois Department of Financial\nand Professional Regulation were not exempt pursuant to section 7(1)(t), but that a database of\ninformation submitted by financial\nconnection with the licensing process could be withheld). \n\ninstitutions to regulators for examination purposes. Ill. Att'y\n\ninstitutions that was used by Department examiners in\n\nThe Department did not explain how the withheld records relate to any\n\nexamination, operating, or condition reports\" used by a financial regulator. Even if they do, it\ndoes not appear that disclosure of the records would reveal the details of any bank examination. \nTherefore, the Department did not meet its burden of establishing that the records are exempt in\ntheir entireties pursuant to section 7(1)(t) of FOIA. \n\nAccordingly, this office requests that the Department provide Mr. Novak with\n\ncopies of the withheld records; the Department may redact private information pursuant to\nsection 7(1)(b) of FOIA 7 and the identities of third parties pursuant to section 7(1)(c) of FOIA. 8\n\n75 ILCS 140/ 7(1)(b) (West 2021 Supp.), as amended by Public Acts 102- 752, effective January 1, \n\n2023; 102-753, effective January 1, 2023; 102- 776, effective January 1, 2023; 102- 791, effective May 13, 2022; \n102- 1055, effective June 10, 2022. \n\n85 ILCS 140/ 7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1, \n\n2023; 102- 753, effective January 1, 2023; 102- 776, effective January 1, 2023; 102- 791, effective May 13, 2022; \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n57377 f 71a improper 71di improper 71t improper pd"}
{"id":933,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-08-01","case_number":null,"request_numbers":["57517"],"title":"Chicago Police Department properly denied body camera recordings under FOIA and Body Camera Act","filename":"57517, issued August 1, 2019.pdf","rel_path":null,"word_count":2206,"summary":"The requester sought body camera recordings from the Chicago Police Department, which the Department denied citing state law prohibitions. The PAC determined that the Department properly withheld the records because the requester did not meet the statutory requirements for access under the Law Enforcement Officer-Worn Body Camera Act.","plain_summary":"An attorney sought body-camera recordings of a traffic accident on behalf of a client, which the police department withheld under the Body Camera Act. The PAC determined the client did not appear on the recordings and was therefore not the \"subject of the encounter\" entitled to obtain them, and the recordings were not otherwise flagged for release under the Act's disclosure triggers. The department's withholding did not violate FOIA.","holding":"The Chicago Police Department did not improperly withhold the requested body camera recordings.","legal_question":"Whether the Chicago Police Department properly denied a FOIA request for body camera recordings pursuant to section 7(1)(a) of FOIA and the Law Enforcement Officer-Worn Body Camera Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7(1)(a)","50 ILCS 706/10-20(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7.5(cc)"],"public_body":"Chicago Police Department","requesting_party":"Mr. Anthony L. Russo, Jr. (Russo & Russo, Ltd.)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned officer-worn body camera recordings related to a specific traffic crash report.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-bodily-harm/57517%2C%20issued%20August%201%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","FOIA denial","traffic crash report"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust\n\n1,  2019\n\nMr. Anthony L. Russo,  Jr. \nRusso &  Russo,  Ltd. \n\n1761 South Naperville Road,  Suite 101\n\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\n\nMs.  Dana O' Malley\nAssistant General Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\n\nChicago,  Illinois 60653- 1020\n\npacola@chicagopolice. org\n\nRE:  FOIA Request for Review — 2019 PAC 57517\n\nDear Mr. Russo and Ms.  O' Malley: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2016)).  For the reasons explained below,  the\nPublic Access Bureau concludes that the Chicago Police Department ( CPD)  did not improperly\nwithhold officer -worn body camera recordings responsive to Mr. Anthony L.  Russo' s FOIA\n\nrequest. \n\nOn March 6,  2019,  Mr.  Russo,  on behalf of Russo &  Russo,  Ltd., and its client\n\nAmanda Schut,  submitted a FOIA request to CPD seeking copies of body camera recordings\nreferred to in traffic report 2018 JB420531.  On March 20,  2019,  CPD denied the request\npursuant to section 7( 1)( a)  of FOIA ( 5 ILCS 140/ 7( 1)( a) ( West 2017 Supp.),  as amended by\nPublic Act 100- 732,  effective August 3,  2018),  which exempts from disclosure \"[\nspecifically prohibited from disclosure by federal or State law or rules or regulations\nimplementing federal or State law.\"  In support of its denial of the disclosure of the requested\nrecordings under section 7( 1)( a),  CPD cited section 10- 20( b)  of the Law Enforcement Officer - \nWorn Body Camera Act ( Body Camera Act) ( 50 ILCS 706/ 10- 20( b) ( West 2016)).  On April 10, \n2019,  the Public Access Bureau received a completed Request for Review from Mr. Russo\n\niln£ormation\n\n500 South Second Street,  Springfield, \nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Anthony L. Russo,  Jr. \nMs.  Dana O' Malley\nAugust\n\n1,  2019\n\nPage 2\n\ncontesting CPD' s denial of the recordings. \nthat his client \" sustained personal\nSeptember 3,  2018.\"' \n\nIn particular,  Mr.  Russo' s Request\n\nfor Review stated\ninjuries in a motor vehicle accident in the City of Chicago on\n\nOn April 10,  2019,  the Public Access Bureau sent a copy of the Request for\n\nReview to CPD and asked it to provide copies of the officer -worn body camera recordings it had\nwithheld together with a detailed explanation of the factual and legal bases for its assertion that\nthe recordings are exempt from disclosure under section 7( 1)( a)  of FOIA.  This office also asked\nCPD to clarify whether Ms.  Schut was the subject of the encounter captured on the recordings. \nOn April 30,  2019,  CPD provided this office with a written answer.  On May 2, 2019,  the Public\nAccess Bureau received the responsive body camera recordings from CPD.  On May 2,  2019, \nthis office forwarded to Mr. Russo a copy of CPD' s written answer;  he did not reply.  On July 16, \n2019,  CPD provided this office with a supplemental response. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2016);  see also Southern Illinoisan v. \nIllinois Department ofPublic Health,  218 111.  2d 390,  415 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\" \n140/ 1. 2 ( West 2016). \n\nthat a record is exempt\n\nfrom disclosure. \n\n5 ILCS\n\nSection 7. 5( cc)  of FOIA and Section 10- 20( b)  of the Body Camera Act\n\nIn its response to the FOIA request,  CPD cited section 7( 1)( a),  the provision of\nFOIA that generally applies to records that are specifically prohibited from disclosure by State\nlaw.  However,  section 7. 5( cc)  of FOIA ( 5 ILCS 140/ 7. 5( cc) ( West 2017 Supp.),  as amended by\nPublic Acts 100- 646,  effective July 27,  2018;  100- 863,  effective August 14,  2018;  100- 887, \neffective August 14,  2018;  100- 690,  effective January 1,  2019)  expressly exempts from\ninspection and copying \"[ r] ecordings made under the Law Enforcement Officer -Worn Body\nCamera Act,  except\n\nto the extent authorized under that Act.\" ( Emphasis added.)  Section 10- \n\n20( b)  of the Body Camera Act provides: \n\nb)  Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\nthe Attorney General ( March 25,  2019),  at 1. \n\nLetter from Anthony L.  Russo,  Jr.,  Russo &  Russo,  Ltd.,  to Public Access Counselor,  Office of\n\n\fMr. Anthony L. Russo,  Jr. \nMs.  Dana O' Malley\nAugust\n\n1,  2019\n\nPage 3\n\n1) \n\nif the subject of the encounter has a reasonable\n\nexpectation of privacy,  at the time of the recording,  any\nrecording which is flagged,  due to the filing of a complaint, \ndischarge of a firearm,  use of force,  arrest or detention,  or\nresulting death or body harm,  shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on • \n\nthe recording is a victim or witness;  and\n\nB)  the law enforcement agency obtains\nwritten permission of the subject or the subject' s\n\nlegal representative; \n\n2)  except as provided in paragraph ( 1)  of this\n\nsubsection ( b),  any recording which is flagged due to the\nfiling of a complaint,  discharge of a firearm,  use of\nforce,  arrest or detention,  or resulting death or bodily\nharm shall be disclosed in accordance with the Freedom\nof Information Act;  and\n\n3)  upon request,  the law enforcement agency shall\n\ndisclose,  in accordance with the Freedom of\n\nInformation Act, the recording to the subject of the\nencounter captured on the recording or to the subject' s\nattorney,  or the officer or his or her legal representative. \nEmphasis added.) \n\nSection 10- 20( a)( 7)  of the Body Camera Act ( 50 ILCS 706/ 10- 20( a)( 7) ( West 2016))  provides\nthe grounds for retaining body camera recordings beyond 90 days: \n\n7)  Recordings made on officer -worn cameras must be\n\nretained by the law enforcement agency or by the camera vendor\nused by the agency,  on a recording medium for a period of 90\ndays. \n\nB)  Following the 90 -day storage period,  any and\n\nall recordings made with an officer - worn body camera must\n\n\fMr.  Anthony L.  Russo,  Jr. \nMs.  Dana O' Malley\nAugust\n\n1,  2019\n\nPage 4\n\nbe destroyed, unless any encounter captured on the\nrecording has been flagged.  An encounter\nflagged when: \n\nis deemed to be\n\ni)  a formal or informal complaint has been\n\nfiled; \n\nii)  the officer discharged his or her firearm\n\nor used force during the encounter; \n\niii) death or great bodily harm occurred\n\nto any person in the recording; \n\niv) the encounter resulted in a detention or\n\nan arrest,  excluding traffic stops which resulted in\nonly a minor traffic offense or business offense; \n\nv)  the officer is the subject of an internal\ninvestigation or otherwise being investigated for\npossible misconduct; \n\nvi)  the supervisor of the officer,  prosecutor, \n\ndefendant,  or court determines that the encounter\nhas evidentiary value in a criminal prosecution;  or\n\nvii)  the recording officer requests that the\n\nvideo be flagged for official purposes related to his\nor her official duties. ( Emphasis added.) \n\nThe Attorney General has held that under section 10- 20( b)( 3)  of the Body Camera\n\nIll. Att' y Gen.  Pub.  Acc.  Op.  No 19- 001,  issued January 9,  2019,  at 10. \n\nAct \" a subject of the [ encounter captured on the]  recording and the officer,  and their legal\nrepresentatives may obtain the recording in accordance with FOIA,  regardless of whether or why\nit has been flagged.\" \nThe Public Access Bureau has defined the \" subject of the encounter\"  as the person who appeared\nin the recording and \" interacted with a law enforcement officer in the course of a law\nenforcement activity.\"  Ill. Att' y Gen. PAC Req.  Rev.  Ltr. 48793,  at 4 ( concluding that a police\nofficer who was not captured on the body camera recordings at issue,  but whose conduct was\ndiscussed on the recordings,  was not authorized to receive copies of the recordings under section\n10- 20( b)( 3)  of the Body Camera Act because the officer \" d[ id]  not appear on the recordings.\"). \n\n\fMr.  Anthony L.  Russo,  Jr. \nMs.  Dana O' Malley\nAugust\n\n1,  2019\n\nPage 5\n\nIn its supplemental\n\nresponse to this office,  CPD stated that Ms.  Schut was not\n\nindicated that Ms.  Shut was not on the scene when\n\ncaptured on the recordings because she had been transported to the hospital before the recordings\nbegan.  The narrative of the traffic report\nofficers arrived: \" Driver of Unit # 2 [ Amanda Shut]  was transported to Community First Hospital\nby CFD and was subsequently treated and released by Dr. Akbarnia prior to R/ O' s arrival. * * * \nDriver information exchange card was mailed to Unit # 2 as parties left hospital/ scene prior to\nR/ O' s arrival.\" 2 Further,  this office' s review of the withheld recordings confirmed that Ms.  Shut\ndid not interact with any law enforcement officers at the scene because she had already been\ntransported to the hospital before the recordings commenced.  Because the plain language of\nsection 10- 20( b)( 3)  of the Body Camera Act permits a person who is the subject of the encounter\ncaptured on the recording or that person' s attorney to request a copy of the recording under FOIA\nand because Ms.  Schut was not captured on the recording,  Mr.  Russo is not entitled to the\nrecording under section 10- 20( b)( 3).  Accordingly,  this office must consider whether the\nrecording is subject to disclosure under section 10- 20( b)( 2)  of the Body Camera Act. \n\nSection 10- 20( b)( 2)  states that flagged recordings which have been flagged\n\nbecause a complaint was filed,  a firearm was discharged,  force was used,  an arrest or detention\noccurred, \" or resulting death or bodily harm\"  are subject to disclosure under FOIA.  The general\nconditions that cause a recording to be flagged in section 10- 20( a)( 7)( B)  of the Body Camera Act\nare similar but not identical to the specific conditions that cause a flagged recording to be subject\nto disclosure under FOIA in section 10- 20( b)( 2).  Where there is a general statutory provision\nand a specific statutory provision in the same act relating to the same subject,  the specific\nprovision controls and should be applied.  McFatridge v.  Madigan,  2013 IL 113676, ¶ 22,  989\nN. E.  2d 165,  171 ( 2013).  Thus,  section 10- 20( b)( 2)  limits rather than expands the types of\nflagged recordings that are subject\nrecording is not the subject of the encounter captured on the recording,  the subject' s attorney,  the\nofficer, or the officer's attorney. \n\nto disclosure under FOIA when the person seeking the\n\nAs noted above,  the conditions for a recording being flagged are outlined in\n\nsection 10- 20( a)( 7)( B).  Among the conditions is \" death or great bodily harm occurred to any\nperson in the recording\"  in section 10- 20( a)( 7)( B)( iii) of the Body Camera Act.  Although the\nBody Camera Act does not define the term \" great bodily harm,\"  Ms.  Schut does not appear in the\nrecordings.  Thus,  the recordings cannot be considered to be \" flagged\"  based on section 10- \n20( a)( 7)( B)( iii) regardless of whether she sustained great bodily harm.  Further,  the available\ninformation and this office' s review of the recordings indicate that none of the other conditions\nfor recordings to be flagged occurred when the officers responded to the scene of the accident. \nBecause the recordings were not flagged due to death or great bodily harm occurring to a person\n\nJB420531. \n\n2Narrative,  Illinois Traffic Crash Report,  Chicago Police Department,  R. D.  Number 2018\n\n\fMr. Anthony L.  Russo,  Jr. \nMs.  Dana O' Malley\nAugust\n\n1,  2019\n\nPage 6\n\nwho appeared in the recordings and because Mr. Russo is not among the persons who are\nauthorized to obtain copies of non -flagged recordings under section 10- 20( b)( 3)  of the Body\nCamera Act, this office concludes that CPD did not improperly withhold copies of the body\ncamera recordings from Mr. Russo pursuant to section 7. 5( cc)  of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This correspondence serves to close this matter.  If\nyou have questions,  you may contact me at ( 217)  782- 9054 or the Springfield address listed at\nthe bottom of the first page. \n\nVerytruly yours, \n\nT. HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n57517 f 75cc proper pd\n\ncc: \n\nVia electronic mail\n\nMr.  Yevgeniy (\" Eugene\")  Bolotnikov\nAssociate Staff Attorney\nChicago Police Department\nOffice of Legal Affairs\n\n3510 South Michigan Avenue,  5th Floor\n\nChicago,  Illinois 60653\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A lawyer requested body camera footage from the Chicago Police Department on behalf of a client. The Department refused to release the footage, arguing that state law prohibited them from doing so. The Attorney General's office agreed with the Department, finding that the requester was not authorized to receive the specific recordings under the Law Enforcement Officer-Worn Body Camera Act.","card_headline":"Police body-camera recordings of a traffic crash","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57517/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nAugust\n\n1, 2019\n\nMr. Anthony L. Russo, Jr. \nRusso & Russo, Ltd. \n\n1761 South Naperville Road, Suite 101\n\n[street address redacted for site publication -- see original PDF]\nVia electronic mail\n\nMs. Dana O' Malley\nAssistant General Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\n\nChicago, Illinois 60653- 1020\n\npacola@chicagopolice. org\n\nRE: FOIA Request for Review — 2019 PAC 57517\n\nDear Mr. Russo and Ms. O' Malley: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2016)). For the reasons explained below, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) did not improperly\nwithhold officer -worn body camera recordings responsive to Mr. Anthony L. Russo's FOIA\n\nrequest. \n\nOn March 6, 2019, Mr. Russo, on behalf of Russo & Russo, Ltd., and its client\n\nAmanda Schut, submitted a FOIA request to CPD seeking copies of body camera recordings\nreferred to in traffic report 2018 JB420531. On March 20, 2019, CPD denied the request\npursuant to section 7(1)(a) of FOIA (5 ILCS 140/ 7(1)(a) (West 2017 Supp.), as amended by\nPublic Act 100- 732, effective August 3, 2018), which exempts from disclosure \"[\nspecifically prohibited from disclosure by federal or State law or rules or regulations\nimplementing federal or State law.\" In support of its denial of the disclosure of the requested\nrecordings under section 7(1)(a), CPD cited section 10- 20(b) of the Law Enforcement Officer - \nWorn Body Camera Act (Body Camera Act) (50 ILCS 706/ 10- 20(b) (West 2016)). On April 10, \n2019, the Public Access Bureau received a completed Request for Review from Mr. Russo\n\niln£ormation\n\ncontesting CPD's denial of the recordings. \nthat his client \" sustained personal\nSeptember 3, 2018.\"' \n\nIn particular, Mr. Russo's Request\n\nfor Review stated\ninjuries in a motor vehicle accident in the City of Chicago on\n\nOn April 10, 2019, the Public Access Bureau sent a copy of the Request for\n\nReview to CPD and asked it to provide copies of the officer -worn body camera recordings it had\nwithheld together with a detailed explanation of the factual and legal bases for its assertion that\nthe recordings are exempt from disclosure under section 7(1)(a) of FOIA. This office also asked\nCPD to clarify whether Ms. Schut was the subject of the encounter captured on the recordings. \nOn April 30, 2019, CPD provided this office with a written answer. On May 2, 2019, the Public\nAccess Bureau received the responsive body camera recordings from CPD. On May 2, 2019, \nthis office forwarded to Mr. Russo a copy of CPD's written answer; he did not reply. On July 16, \n2019, CPD provided this office with a supplemental response. \n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2016); see also Southern Illinoisan v. \nIllinois Department ofPublic Health, 218 111. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" \n140/ 1. 2 (West 2016). \n\nthat a record is exempt\n\nfrom disclosure. \n\n5 ILCS\n\nSection 7. 5(cc) of FOIA and Section 10- 20(b) of the Body Camera Act\n\nIn its response to the FOIA request, CPD cited section 7(1)(a), the provision of\nFOIA that generally applies to records that are specifically prohibited from disclosure by State\nlaw. However, section 7. 5(cc) of FOIA (5 ILCS 140/ 7. 5(cc) (West 2017 Supp.), as amended by\nPublic Acts 100- 646, effective July 27, 2018; 100- 863, effective August 14, 2018; 100- 887, \neffective August 14, 2018; 100- 690, effective January 1, 2019) expressly exempts from\ninspection and copying \"[ r] ecordings made under the Law Enforcement Officer -Worn Body\nCamera Act, except\n\nto the extent authorized under that Act.\" (Emphasis added.) Section 10- \n\n20(b) of the Body Camera Act provides: \n\nb) Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\nthe Attorney General (March 25, 2019), at 1. \n\nLetter from Anthony L. Russo, Jr., Russo & Russo, Ltd., to Public Access Counselor, Office of\n\n1) \n\nif the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\nresulting death or body harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on • \n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject's\n\nlegal representative; \n\n2) except as provided in paragraph (1) of this\n\nsubsection (b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of\nforce, arrest or detention, or resulting death or bodily\nharm shall be disclosed in accordance with the Freedom\nof Information Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of\n\nInformation Act, the recording to the subject of the\nencounter captured on the recording or to the subject's\nattorney, or the officer or his or her legal representative. \nEmphasis added.) \n\nSection 10- 20(a)(7) of the Body Camera Act (50 ILCS 706/ 10- 20(a)(7) (West 2016)) provides\nthe grounds for retaining body camera recordings beyond 90 days: \n\n7) Recordings made on officer -worn cameras must be\n\nretained by the law enforcement agency or by the camera vendor\n\nbe destroyed, unless any encounter captured on the\nrecording has been flagged. An encounter\nflagged when: \n\nis deemed to be\n\ni) a formal or informal complaint has been\n\nfiled; \n\nii) the officer discharged his or her firearm\n\nor used force during the encounter; \n\niii) death or great bodily harm occurred\n\nto any person in the recording; \n\niv) the encounter resulted in a detention or\n\nan arrest, excluding traffic stops which resulted in\nonly a minor traffic offense or business offense; \n\nv) the officer is the subject of an internal\ninvestigation or otherwise being investigated for\npossible misconduct; \n\nvi) the supervisor of the officer, prosecutor, \n\ndefendant, or court determines that the encounter\nhas evidentiary value in a criminal prosecution; or\n\nvii) the recording officer requests that the\n\nvideo be flagged for official purposes related to his\nor her official duties. (Emphasis added.) \n\nThe Attorney General has held that under section 10- 20(b)(3) of the Body Camera\n\nIll. Att' y Gen. Pub. Acc. Op. No 19- 001, issued January 9, 2019, at 10. \n\nAct \" a subject of the [ encounter captured on the] recording and the officer, and their legal\nrepresentatives may obtain the recording in accordance with FOIA, regardless of whether or why\nit has been flagged.\" \nThe Public Access Bureau has defined the \" subject of the encounter\" as the person who appeared\nin the recording and \" interacted with a law enforcement officer in the course of a law\nenforcement activity.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 48793, at 4 (concluding that a police\nofficer who was not captured on the body camera recordings at issue, but whose conduct was\ndiscussed on the recordings, was not authorized to receive copies of the recordings under section\n10- 20(b)(3) of the Body Camera Act because the officer \" d[ id] not appear on the recordings.\"). \n\nIn its supplemental\n\nresponse to this office, CPD stated that Ms. Schut was not\n\nindicated that Ms. Shut was not on the scene when\n\ncaptured on the recordings because she had been transported to the hospital before the recordings\nbegan. The narrative of the traffic report\nofficers arrived: \" Driver of Unit # 2 [ Amanda Shut] was transported to Community First Hospital\nby CFD and was subsequently treated and released by Dr. Akbarnia prior to R/ O's arrival. * * * \nDriver information exchange card was mailed to Unit # 2 as parties left hospital/ scene prior to\nR/ O's arrival.\" 2 Further, this office's review of the withheld recordings confirmed that Ms. Shut\ndid not interact with any law enforcement officers at the scene because she had already been\ntransported to the hospital before the recordings commenced. Because the plain language of\nsection 10- 20(b)(3) of the Body Camera Act permits a person who is the subject of the encounter\ncaptured on the recording or that person's attorney to request a copy of the recording under FOIA\nand because Ms. Schut was not captured on the recording, Mr. Russo is not entitled to the\nrecording under section 10- 20(b)(3). Accordingly, this office must consider whether the\nrecording is subject to disclosure under section 10- 20(b)(2) of the Body Camera Act. \n\nSection 10- 20(b)(2) states that flagged recordings which have been flagged\n\nbecause a complaint was filed, a firearm was discharged, force was used, an arrest or detention\noccurred, \" or resulting death or bodily harm\" are subject to disclosure under FOIA. The general\nconditions that cause a recording to be flagged in section 10- 20(a)(7)(B) of the Body Camera Act\nare similar but not identical to the specific conditions that cause a flagged recording to be subject\nto disclosure under FOIA in section 10- 20(b)(2). Where there is a general statutory provision\nand a specific statutory provision in the same act relating to the same subject, the specific\nprovision controls and should be applied. McFatridge v. Madigan, 2013 IL 113676, ¶ 22, 989\nN. E. 2d 165, 171 (2013). Thus, section 10- 20(b)(2) limits rather than expands the types of\nflagged recordings that are subject\nrecording is not the subject of the encounter captured on the recording, the subject's attorney, the\nofficer, or the officer's attorney. \n\nto disclosure under FOIA when the person seeking the\n\nAs noted above, the conditions for a recording being flagged are outlined in\n\nsection 10- 20(a)(7)(B). Among the conditions is \" death or great bodily harm occurred to any\nperson in the recording\" in section 10- 20(a)(7)(B)(iii) of the Body Camera Act. Although the\nBody Camera Act does not define the term \" great bodily harm,\" Ms. Schut does not appear in the\nrecordings. Thus, the recordings cannot be considered to be \" flagged\" based on section 10- \n20(a)(7)(B)(iii) regardless of whether she sustained great bodily harm. Further, the available\ninformation and this office's review of the recordings indicate that none of the other conditions\nfor recordings to be flagged occurred when the officers responded to the scene of the accident. \nBecause the recordings were not flagged due to death or great bodily harm occurring to a person\n\nwho appeared in the recordings and because Mr. Russo is not among the persons who are\nauthorized to obtain copies of non -flagged recordings under section 10- 20(b)(3) of the Body\nCamera Act, this office concludes that CPD did not improperly withhold copies of the body\ncamera recordings from Mr. Russo pursuant to section 7. 5(cc) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This correspondence serves to close this matter. If\nyou have questions, you may contact me at (217) 782- 9054 or the Springfield address listed at\nthe bottom of the first page. \n\nVerytruly yours, \n\nT. HARTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n57517 f 75cc proper pd\n\ncc: \n\nVia electronic mail\n\nMr. Yevgeniy (\" Eugene\") Bolotnikov\nAssociate Staff Attorney\nChicago Police Department\nOffice of Legal Affairs\n\n3510 South Michigan Avenue, 5th Floor\n\nChicago, Illinois 60653"}
{"id":934,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-15","case_number":null,"request_numbers":["57623"],"title":"University of Illinois FOIA extension not ripe for PAC review because request not yet denied","filename":"57623, issued April 15, 2019.pdf","rel_path":null,"word_count":559,"summary":"The requester challenged the University of Illinois's decision to extend the FOIA response deadline, but the PAC determined it lacked jurisdiction because the request had not yet been denied.","plain_summary":"A requester complained to the Attorney General because the University of Illinois used a legal extension to delay answering their FOIA request. The Attorney General's office closed the case, explaining that they can only review complaints where a request has been formally denied, not just delayed.","holding":"The PAC determined that no further action was warranted because the requester filed a Request for Review before the public body had actually denied the FOIA request.","legal_question":"Does the Public Access Counselor have jurisdiction to review a FOIA request that has been extended by a public body but not yet denied?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/9.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois","requesting_party":null,"pac_outcome":"Closed due to lack of jurisdiction","pac_law_type":null,"subject_category":"fees","subject_description":"The requester challenged the University's invocation of a statutory five-day extension to respond to a FOIA request.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_e/Statutory-right-to-extend-time-for-response/57623%2C%20issued%20April%2015%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA response deadline","extension","jurisdiction","denial"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nApril 15,  2019\n\nKWAME RAOUL\n\nATTORNEY. GENERAL\n\nVia electronic marl\n\nRE: \n\nFOIA Request\n\nfor Review — 201.9 PAC 57623\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons set forth below,  the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn April\n\n1,  2019,  you submitted a FOIA request to the University of Illinois\n\nUniversity)  seeking all records concerning a particular employee.  The University informed you\nthat because your FOIA request was submitted after business hours on April\n1,  2019,  it was not\nreceived by the University until April 2,  2019.  On April 9, 2019,  the University extended the\ntime for its response to your FOIA request by five business days pursuant to sections 3( e)( i)  and\n3( e)( vi)  ofFOIA ( 5 ILCS 140/ 3( e)( i),( e)( vi) ( West 2016))  The University stated that it would\nrespond to your FOIA request by April 16,  2019.  The same day, you filed this Request for\nReview contending that the University improperly extended the response period. \n\nSection 9. 5( a)  of FOIA ( 5 ILCS 140/ 9. 5( a) ( West 2016))  provides that \"[ a]  person\n\nwhose request to inspect or copy a public record is denied by a public body * * *  may file a\nrequest for review with the. Public Access Counselor[.]\" .( Emphasis added.)  Your Request\nfor\nReview does not allege that your request was denied,  but rather that the University improperly\nclaimed the statutory extension.  The Illinois Appellate Court has determined that, \" the plain\nlanguage of FOIA gives a public body in receipt of a records request\nthe unilateral ability to\nextend its own response deadline by five days.\"  Sargent Shriver National Center on Poverty\nLaw,  Inc.  v,  The Board of Education of the City of Chicago,  2018 IL App ( 1st)  171846, ¶ 25, \n\n2018).  Based on the available information,  the University timely exercised\nits statutory right to extend the time for response,  and had not yet denied your FOIA request at\n\nN.E3d _ (\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 TTY: ( 800)  964- 3013 •  Fax: ( 312)  81473806\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fApril 15,  2019\nPage 2\n\nthe time you submitted your Request for Review.  Accordingly,  because this office' s lacks\njurisdiction to review this matter, we have determined that no further inquiry is warranted in this\n\nmatter. \n\nThis file is closed.  If you have any questions,  you may contact me at ( 217)  782- \n9054, mhartman@atg. state.il.us,  or the Springfield address listed on the first page of this letter. \n\nVery truly yo rs, \n\nRTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n57623 f no fi war univ\n\ncc: \n\nVia electronic mail\nMr. Thomas P Hardy\nExecutive Director and Chief Records Officer\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street,  MC -370\nUrbana,  Illinois 61801\nfoia@uillinois. edu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A university's five-day extension to respond to a FOIA request","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57623/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nApril 15, 2019\n\nKWAME RAOUL\n\nATTORNEY. GENERAL\n\nVia electronic marl\n\nRE: \n\nFOIA Request\n\nfor Review — 201.9 PAC 57623\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn April\n\n1, 2019, you submitted a FOIA request to the University of Illinois\n\nUniversity) seeking all records concerning a particular employee. The University informed you\nthat because your FOIA request was submitted after business hours on April\n1, 2019, it was not\nreceived by the University until April 2, 2019. On April 9, 2019, the University extended the\ntime for its response to your FOIA request by five business days pursuant to sections 3(e)(i) and\n3(e)(vi) ofFOIA (5 ILCS 140/ 3(e)(i),(e)(vi) (West 2016)) The University stated that it would\nrespond to your FOIA request by April 16, 2019. The same day, you filed this Request for\nReview contending that the University improperly extended the response period. \n\nSection 9. 5(a) of FOIA (5 ILCS 140/ 9. 5(a) (West 2016)) provides that \"[ a] person\n\nwhose request to inspect or copy a public record is denied by a public body * * * may file a\nrequest for review with the. Public Access Counselor[.]\".(Emphasis added.) Your Request\nfor\nReview does not allege that your request was denied, but rather that the University improperly\nclaimed the statutory extension. The Illinois Appellate Court has determined that, \" the plain\nlanguage of FOIA gives a public body in receipt of a records request\nthe unilateral ability to\nextend its own response deadline by five days.\" Sargent Shriver National Center on Poverty\nLaw, Inc. v, The Board of Education of the City of Chicago, 2018 IL App (1st) 171846, ¶ 25, \n\n2018). Based on the available information, the University timely exercised\nits statutory right to extend the time for response, and had not yet denied your FOIA request at\n\nN.E3d _ (the time you submitted your Request for Review. Accordingly, because this office's lacks\njurisdiction to review this matter, we have determined that no further inquiry is warranted in this\n\nmatter. \n\nThis file is closed. If you have any questions, you may contact me at (217) 782- \n9054, mhartman@atg. state.il.us, or the Springfield address listed on the first page of this letter. \n\nVery truly yo rs, \n\nRTMAN\n\nAssistant Attorney General\nPublic Access Bureau\n\n57623 f no fi war univ\n\ncc: \n\nVia electronic mail\nMr. Thomas P Hardy\nExecutive Director and Chief Records Officer\nUniversity of Illinois\n108 Henry Administration Building\n506 South Wright Street, MC -370\nUrbana, Illinois 61801\nfoia@uillinois. edu"}
{"id":935,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-04-29","case_number":null,"request_numbers":["57749"],"title":"Illinois State Police properly denied traffic stop data request under 7.5(k)","filename":"57749, issued April 29, 2019.pdf","rel_path":null,"word_count":985,"summary":"The requester sought traffic stop data from the Illinois State Police, including driver and officer identification information. The PAC determined that the requested information is exempt from disclosure under section 7.5(k) of FOIA and section 11-212(f) of the Illinois Vehicle Code.","plain_summary":"A requester asked the Illinois State Police for detailed records of traffic stops in Boone County, including information that could identify drivers and officers. The Attorney General's office found that state law specifically prohibits the release of this identifying information. Therefore, the police were correct to deny the request, and the case is closed.","holding":"The Illinois State Police properly denied the request because the requested data is prohibited from disclosure by state law.","legal_question":"Whether the Illinois State Police properly denied a FOIA request for traffic stop data containing driver and officer identification information pursuant to section 7.5(k) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(k)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(k)"],"public_body":"Illinois State Police","requesting_party":"Ms. Holly M. Ryan","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought traffic stop data including driver and officer identification information compiled under the Illinois Vehicle Code.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_k/57749%2C%20issued%20April%2029%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["traffic stops","police records","driver identification","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nApril 29,  2019\n\nVia electronic mail\n\nMs.  Holly M.  Ryan\nEisenberg Law Offices;  S. C. \n308 East Washington Avenue\n\nP. O.  Box 1069\n\n[street address redacted for site publication -- see original PDF]\nholly@eisenberglaw. org\n\nRE: \n\nFOIA Request for Review — 2019 PAC 57749\n\nDear Ms.  Ryan: \n\nThis determination is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons set forth below,  the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn March 21,  2019,  you submitted a FOIA request\n\nto the Illinois State Police\nISP)  seeking data concerning all traffic stops in Boone County,  Illinois between January 1, \n2013,  and January 1,  2018,  sorted by the race of the driver.  In particular,  your FOIA request\nsought the reason for the stop,  whether a search was conducted,  the reason for the search, \nwhether contraband was found in the search,  the type of contraband.  found,  and the outcome of\nthe search,  and information concerning the officer conducting the stop.  On April 18,  2019,  the\nISP responded by denying your request pursuant to section 7. 5( k)  of FOIA ( 5 ILCS 140/ 7. 5( k) \nWest 2017 Supp.),  as amended by Public Acts 100- 646,  effective July 31,  2018;  100- 863, \neffective August 14,  2018;  100- 887,  effective August 14,  2018).  On April 18,  2019,  the Public\nAccess Bureau received your Request for Review contesting the denial of your FOIA request. \n\nSection 7. 5( k) of FOIA exempts from inspection and copying \" law enforcement\n\nofficer identification information or driver identification information compiled by a law\nenforcement agency or the Department of Transportation under Section 11- 212 of the Illinois\nVehicle Code.\"  Section 11- 212( a)  of the Illinois Vehicle Code ( 625 ILCS 5/ 11- 212( a) ( West\n2016))  states: \n\n500 South Second Street,  Springfield, \n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806 • \n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877). 675- 9339 •  Fax: ( 618)  529- 6416\n\nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n\fMs.  Holly M.  Ryan\nApril 29,  2019\n\nPage 2\n\nWhenever a State or local\n\nlaw enforcement officer issues a\n\nuniform traffic citation or warning citation for an alleged violation\nof the Illinois Vehicle Code,  he or she shall record at least the\nfollowing: \n\n1) \n\nthe name,  address,  gender,  and the officer' s subjective\ndetermination of the race of the person stopped;  the person' s race\nshall be selected from the following list: American Indian or\nAlaska Native,  Asian,  Black or African American,  Hispanic or\nLatino,  Native Hawaiian or Other Pacific Islander,  or White; \n\n2)  the alleged traffic violation that led to the stop of the\n\nmotorist; \n\n3)  the make and year of the vehicle stopped; \n4)  the date and time of the stop,  beginning when the\n\nvehicle was stopped and ending when the driver is free to leave or\ntaken into physical custody; \n\n5)  the location of the traffic stop; \n5. 5)  whether or not a consent search contemporaneous to\n\nthe stop was requested of the vehicle,  driver, passenger,  or\npassengers;  and,  if so,  whether consent was given or denied; \n\n6)  whether or not a search contemporaneous to the stop\nwas conducted of the vehicle,  driver,  passenger,  or passengers; \nand,  if so,  whether it was with consent or by other means; \n\n6. 2)  whether or not a police dog performed a sniff of the\n\nvehicle;  and,  if so,  whether or not the dog alerted to the presence of\ncontraband;  and,  if so,  whether or not an officer searched the\n\nvehicle;  and,  if so,  whether or not contraband was discovered;  and, \nif so,  the type and amount of contraband; \n\n6. 5)  whether or not contraband was found during a search; \n\nand,  if so,  the type and amount of contraband seized;  and\n\n7)  the name and badge number of the issuing officer. \n\nSection 11- 212( 0 of the Illinois Vehicle Code ( 625 ILCS 5/ 11- 212( 0 ( West 2016))  further\nprovides that: \n\nAny law enforcement officer identification information\n\nand driver or pedestrian identification information that is\ncompiled by any law enforcement agency or the Illinois\nDepartment of Transportation pursuant to this Act for the\n\npurposes of fulfilling the requirements of this Section shall be\n\nconfidential\n\nand exempt\n\nfrom public inspection and copying,  as\n\n\fs. Holly M.  Ryan\nApril 29,  2019\n\nPage 3\n\nprovided under Section 7 of the Freedom of Information Act,  and\nthe information shall not be transmitted to anyone except as needed\n\nto comply with this Section. ( Emphasis added.) \n\nThe plain.language of section 11- 212( 0 of the Illinois Vehicle Code prohibits the disclosure of\ndriver and law enforcement officer identification information compiled by a law enforcement\nagency when complying with that. section.  Your FOIA request sought the driver identification\ninformation data compiled by ISP for all traffic stops in Boone County over a five year period. \nSection 11- 212( 0 of the Illinois Vehicle Code and section 7. 5( k)  of FOIA specifically prohibit\nthe disclosure of the data that youhave requested.  Accordingly,  this office has determined that\nno further inquiry is warranted in this matter. \n\nThis file is closed.  If you have any questions,  you may contact me at ( 217)  782- \n9054,  mhartman@atg. state. il.us,  or the Springfield address listed on the first page of this letter. \n\nVery truly yours, \n\nA\n\nI4A1( \n\nAssistant Attorney General\nPublic Access Bureau\n\n57749 f no fi war sa\n\ncc: \n\nVia electronic mail\n\nMs. Erin Davis\n\nFreedom of Information Officer\n\nIllinois State Police\n\n801 South Seventh Street, Suite 1000- S\n\nSpringfield,  Illinois 62703\n\nerin_ davis@isp. state. il. us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Traffic stop data with driver and officer identifications","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-57749/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nApril 29, 2019\n\nVia electronic mail\n\nMs. Holly M. Ryan\nEisenberg Law Offices; S. C. \n308 East Washington Avenue\n\nP. O. Box 1069\n\n[street address redacted for site publication -- see original PDF]\nholly@eisenberglaw. org\n\nRE: \n\nFOIA Request for Review — 2019 PAC 57749\n\nDear Ms. Ryan: \n\nThis determination is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn March 21, 2019, you submitted a FOIA request\n\nto the Illinois State Police\nISP) seeking data concerning all traffic stops in Boone County, Illinois between January 1, \n2013, and January 1, 2018, sorted by the race of the driver. In particular, your FOIA request\nsought the reason for the stop, whether a search was conducted, the reason for the search, \nwhether contraband was found in the search, the type of contraband. found, and the outcome of\nthe search, and information concerning the officer conducting the stop. On April 18, 2019, the\nISP responded by denying your request pursuant to section 7. 5(k) of FOIA (5 ILCS 140/ 7. 5(k) \nWest 2017 Supp.), as amended by Public Acts 100- 646, effective July 31, 2018; 100- 863, \neffective August 14, 2018; 100- 887, effective August 14, 2018). On April 18, 2019, the Public\nAccess Bureau received your Request for Review contesting the denial of your FOIA request. \n\nSection 7. 5(k) of FOIA exempts from inspection and copying \" law enforcement\n\nofficer identification information or driver identification information compiled by a law\nenforcement agency or the Department of Transportation under Section 11- 212 of the Illinois\nVehicle Code.\" Section 11- 212(a) of the Illinois Vehicle Code (625 ILCS 5/ 11- 212(a) (West\n2016)) states: \n\nWhenever a State or local\n\nlaw enforcement officer issues a\n\nuniform traffic citation or warning citation for an alleged violation\nof the Illinois Vehicle Code, he or she shall record at least the\nfollowing: \n\n1) \n\nthe name, address, gender, and the officer's subjective\ndetermination of the race of the person stopped; the person's race\nshall be selected from the following list: American Indian or\nAlaska Native, Asian, Black or African American, Hispanic or\nLatino, Native Hawaiian or Other Pacific Islander, or White; \n\n2) the alleged traffic violation that led to the stop of the\n\nmotorist; \n\n3) the make and year of the vehicle stopped; \n4) the date and time of the stop, beginning when the\n\nvehicle was stopped and ending when the driver is free to leave or\ntaken into physical custody; \n\n5) the location of the traffic stop; \n5. 5) whether or not a consent search contemporaneous to\n\nthe stop was requested of the vehicle, driver, passenger, or\npassengers; and, if so, whether consent was given or denied; \n\n6) whether or not a search contemporaneous to the stop\nwas conducted of the vehicle, driver, passenger, or passengers; \nand, if so, whether it was with consent or by other means; \n\n6. 2) whether or not a police dog performed a sniff of the\n\nvehicle; and, if so, whether or not the dog alerted to the presence of\ncontraband; and, if so, whether or not an officer searched the\n\nvehicle; and, if so, whether or not contraband was discovered; and, \nif so, the type and amount of contraband; \n\n6. 5) whether or not contraband was found during a search; \n\nand, if so, the type and amount of contraband seized; and\n\n7) the name and badge number of the issuing officer. \n\nSection 11- 212(0 of the Illinois Vehicle Code (625 ILCS 5/ 11- 212(0 (West 2016)) further\nprovides that: \n\nAny law enforcement officer identification information\n\nand driver or pedestrian identification information that is\ncompiled by any law enforcement agency or the Illinois\n\nprovided under Section 7 of the Freedom of Information Act, and\nthe information shall not be transmitted to anyone except as needed\n\nto comply with this Section. (Emphasis added.) \n\nThe plain.language of section 11- 212(0 of the Illinois Vehicle Code prohibits the disclosure of\ndriver and law enforcement officer identification information compiled by a law enforcement\nagency when complying with that. section. Your FOIA request sought the driver identification\ninformation data compiled by ISP for all traffic stops in Boone County over a five year period. \nSection 11- 212(0 of the Illinois Vehicle Code and section 7. 5(k) of FOIA specifically prohibit\nthe disclosure of the data that youhave requested. Accordingly, this office has determined that\nno further inquiry is warranted in this matter. \n\nThis file is closed. If you have any questions, you may contact me at (217) 782- \n9054, mhartman@atg. state. il.us, or the Springfield address listed on the first page of this letter. \n\nVery truly yours, \n\nA\n\nI4A1(Assistant Attorney General\nPublic Access Bureau\n\n57749 f no fi war sa\n\ncc: \n\nVia electronic mail\n\nMs. Erin Davis\n\nFreedom of Information Officer\n\nIllinois State Police\n\n801 South Seventh Street, Suite 1000- S\n\nSpringfield, Illinois 62703\n\nerin_ davis@isp. state. il. us"}
{"id":936,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-02-01","case_number":null,"request_numbers":["58120"],"title":"Metropolitan Water Reclamation District mostly properly withheld investigatory records under 7(1)(d)(ii)","filename":"58120, issued February 1, 2022.pdf","rel_path":null,"word_count":1630,"summary":"The requester sought records regarding an AAA freight site in Merrionette Park, and the PAC determined that the Metropolitan Water Reclamation District of Greater Chicago properly withheld most records under FOIA exemptions but failed to provide certain non-exempt information.","plain_summary":"A requester asked for documents related to a specific freight site that had received violations. The District denied the request, claiming the records were part of an ongoing investigation. The Attorney General's office found that while the District was mostly correct to withhold the records, they should have released some non-sensitive information.","holding":"The District properly withheld most records under section 7(1)(d)(ii), but the PAC determined that the District should have disclosed certain non-exempt portions of the requested documents.","legal_question":"Whether the Metropolitan Water Reclamation District of Greater Chicago properly invoked section 7(1)(d)(ii) of FOIA to withhold records related to an ongoing investigation.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7(1)(d)(ii)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(ii)","7(1)(c)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"investigatory records","subject_description":"The request concerned documents, reports, and communications regarding an AAA freight site that had been issued environmental or zoning violations.","ocr_status":"ok","ocr_quality":90.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_ii/58120%2C%20issued%20February%201%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["investigatory records","FOIA denial","environmental violations","private information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 1, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. James B. Murray, Jr.  \nHead Assistant Attorney and FOIA Officer\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\nChicago, Illinois 60611\nmurrayjl@mwrd. org\n\nRE:   FOIA Request for Review –  2019 PAC 58120;  District FOIA No. 19- 131\n\nDear\n\nand Mr. Murray: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District of Greater\nChicago (District) did not improperly withhold most of the records responsive to\n\nApril 28, 2019,  FOIA request.  \n\nOn that date, \n\nsubmitted a FOIA request to the District\n\nseeking copies of \"all documents, notes, reports, videos, pictures, proposals, and communication\nregarding an AAA freight located in Merrion[ e] tte Park[,]  Illinois[,]\"  since January 15, 2019. 1\n\nstated that \"[ t]his is a site [for which] current violations have been issued.\" 2\nto\n\nOn May 6, 2019,  the District extended the time for its response by five business days pursuant\nsection 3(e)( vi) of FOIA (5 ILCS 140/3(e)( vi) (West 2018)).  On May 13, 2019, the District\ndenied\n\nrequest in its entirety pursuant to section 7(1)( d)( ii) of FOIA ( 5\n\n1FOIA request submitted by\n\nto FOIARequest@mwrd.org (April 28, 2019). \n\n2FOIA request submitted by\n\nto FOIARequest@mwrd.org (April 28, 2019).   \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. James B. Murray,  Jr. \nFebruary 1, 2022\nPage 2\n\nILCS 140/7(1)(d)(ii) (West 2018)).  On May 15, 2019, \nRequest for Review contesting the District' s denial. \n\nsubmitted this\n\nOn May 21, 2019,  this office forwarded a copy of the Request for Review to the\n\nreview,  together with a detailed explanation of the factual and legal bases for the\n\nDistrict and asked it to provide this office with unredacted copies of the withheld records for our\nconfidential\napplicability of section 7(1)(d)(ii) of FOIA.  On May 31, 2019, the District provided this office\nwith the requested materials,  including both a complete version of its response for this office' s\nconfidential review and a redacted version for\n\nThe District also provided\n\nwith copies of certain responsive e- mails and photographs.   On June 3, \n2019, this office forwarded a copy of the redacted version of the District's written response to\n\nshe did not reply.  \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep' t of Public Health,  218 Ill. 2d 390,  415 ( 2006).   A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/1.2 (West 2020).  The exemptions from disclosure are to be narrowly construed.  Lieber v. \nBoard of Trustees of Southern Illinois Univ.,  176 Ill. 2d 401,  408 ( 1997).   \n\nSection 7(1)( d)( ii) of FOIA exempts from disclosure records \" created in the\n\ncourse of administrative enforcement proceedings,\" to the extent that their disclosure would\ninterfere with active administrative enforcement proceedings conducted by the public body that\nis the recipient of the request[.]\"   In its non-confidential response in this matter, the District\nargued it properly withheld records created in an active administrative enforcement proceeding\nconcerning the development of the property at issue without the proper permits.  The District\nexplained it opened an investigation into the specified site regarding violations of the District' s\nWatershed Management Ordinance (WMO), and issued a violation report advising the property\nowner of the alleged violation on July 25, 2018.   The District described the initial phase of the\nadministrative enforcement process under the Ordinance as follows: \n\nThe WMO governs the issuance of permits to entities\nseeking to develop property within the jurisdiction of the District.  \nThose permits regulate the construction of sewerage systems and\ndetention of water on developed property. * * *  When violations of\nthe WMO are discovered, enforcement is initiated.  Those\nenforcement actions involved a multi- step process with the goal of\nputting the violator on notice of the violation and working with the\n\n\fMr. James B. Murray,  Jr. \nFebruary 1, 2022\nPage 3\n\nparty to bring about compliance.  If compliance cannot be\nachieved,  the District will bring a Show Cause Action before a\nHearing Officer[.][3] \n\nOnce this enforcement process started, the District explained, it exchanged internal and external\ne-mails constituting \" the investigatory and fact finding phase of the proceedings that will form\nthe basis for determining how best to proceed with the enforcement action.\" 4 The District argued\nthat disclosure of these e- mails could have jeopardized its enforcement proceeding \" by\nprematurely revealing the nature, scope, direction and focus of the District's investigation to an\nunknown third- party who could then use the information to negatively impact the District' s\nenforcement action.\" 5 The Department argued that this matter is similar to Stein v. U.S. \nSecurities &  Exchange Comm' n, 266 F. Supp.  3d 326 ( D.D.C. 2017)),  in which a Federal district\ncourt concluded that e-mails from Securities and Exchange Commission (SEC) investigations\nwere exempt under the Federal FOIA exemption for administrative enforcement proceedings.   \n\nIt is uncontested that the District was conducting an active administrative\n\nenforcement proceeding at the time of the request; rather, the issue is whether disclosure of the\nresponsive records would have interfered with those proceedings.   Based on its confidential\nreview of the e-mails provided by the District in Exhibit B, this office agrees that it was\nreasonable to conclude that disclosure of most of these records could have compromised the\nadministrative enforcement proceeding.   Some of these e- mails contained in-depth discussions\nabout the District's actions going forward.6 These e-mails are similar to the internal SEC e-mails\nfound to be exempt in Stein.   See Stein,  266 F. Supp.  3d at 347.   If disclosed to an individual\noutside the District, these e-mails could have interfered with how the District proceeded with its\ninvestigation into the WMO violations.   Therefore,  this office concludes that most of the\nwithheld e-mails are exempt from disclosure under section 7(1)(d)(ii) of FOIA.   \n\n3Letter from James B. Murray, Jr., Head Assistant Attorney/FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 3. \n\n4Letter from James B. Murray, Jr., Head Assistant Attorney/FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 4. \n\n5Letter from James B. Murray, Jr., Head Assistant Attorney/ FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago,  to Leo Draws, Assistant Attorney General,  Public Access Bureau ( May 31, \n2019), at 5. \n\n6E- mail from Gabrielle Giamarusti, [ Senior] Legal Assistant, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, 2019).  See\npages 39-44 of attachment titled Confidential Group Ex B.pdf.  \n\n\fMr. James B. Murray,  Jr. \nFebruary 1, 2022\nPage 4\n\nOn the other hand, the District did not demonstrate by clear and convincing\n\nevidence that the remaining e- mails,  if disclosed,  would have interfered with its enforcement\nproceeding.  In particular, this office points to e-mails exchanged between District staff, the\nproperty owner,  and his legal counsel. 7 Although related to its investigation,  these e-mails\nsimply relay facts about the alleged WMO violations and do not describe the District's internal\nactions or opinions about this proceeding.   The District' s speculation that a third party FOIA\nrequester could use the external e-mails to negatively impact the enforcement proceeding is\nvague and conclusory.   Accordingly,  this office concludes that the District did not sustain its\nburden of showing, by clear and convincing evidence, that all of the e-mails sought by\n\nare exempt from disclosure under section 7(1)( d)( ii) of FOIA. \n\nIn accordance with the conclusions expressed in this letter,  this office requests\n\nthat the District provide\nfootnote seven,  subject to redaction of \" private information\"  pursuant\n5 ILCS 140/7(1)(b) (West 2018)).8\n\nwith copies of the responsive e-mails identified in\nto section 7(1)( b)  of FOIA\n\n7E- mail from Gabrielle Giamarusti, [ Senior] Legal Assistant, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, 2019).  See\npages 2-4, 10-15, 25-29, and 34-38 of attachment titled Confidential Group Ex B.pdf. \n\n8Section 7(1)(b) of FOIA exempts from disclosure \"[ p]rivate information, unless disclosure is\n\nrequired by another provision of this Act, a State or federal law or a court order.\"  \" Private information\" is defined\nas: \n\nunique identifiers,  including a person's social security number,  driver's license\nnumber,  employee identification number,  biometric identifiers,  personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person.  5 ILCS 140/2(c-5) (West 2020). \n\n\fMr. James B. Murray,  Jr. \nFebruary 1, 2022\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   If you have any questions,  please contact me at\nc.lucentemccullough@ilag.gov or the Chicago address on the first page of this letter.  This letter\nserves to close this matter.   \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n58120 f 71dii proper improper reg auth\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on environmental and zoning violations at a freight site","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58120/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 1, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. James B. Murray, Jr. \nHead Assistant Attorney and FOIA Officer\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\nChicago, Illinois 60611\nmurrayjl@mwrd. org\n\nRE: FOIA Request for Review – 2019 PAC 58120; District FOIA No. 19- 131\n\nDear\n\nand Mr. Murray: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Metropolitan Water Reclamation District of Greater\nChicago (District) did not improperly withhold most of the records responsive to\n\nApril 28, 2019, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the District\n\nseeking copies of \"all documents, notes, reports, videos, pictures, proposals, and communication\nregarding an AAA freight located in Merrion[ e] tte Park[,] Illinois[,]\" since January 15, 2019. 1\n\nstated that \"[ t]his is a site [for which] current violations have been issued.\" 2\nto\n\nOn May 6, 2019, the District extended the time for its response by five business days pursuant\nsection 3(e)(vi) of FOIA (5 ILCS 140/3(e)(vi) (West 2018)). On May 13, 2019, the District\ndenied\n\nrequest in its entirety pursuant to section 7(1)(d)(ii) of FOIA (5\n\n1FOIA request submitted by\n\nto FOIARequest@mwrd.org (April 28, 2019). \n\n2FOIA request submitted by\n\nto FOIARequest@mwrd.org (April 28, 2019). \n\nILCS 140/7(1)(d)(ii) (West 2018)). On May 15, 2019, \nRequest for Review contesting the District's denial. \n\nsubmitted this\n\nOn May 21, 2019, this office forwarded a copy of the Request for Review to the\n\nreview, together with a detailed explanation of the factual and legal bases for the\n\nDistrict and asked it to provide this office with unredacted copies of the withheld records for our\nconfidential\napplicability of section 7(1)(d)(ii) of FOIA. On May 31, 2019, the District provided this office\nwith the requested materials, including both a complete version of its response for this office's\nconfidential review and a redacted version for\n\nThe District also provided\n\nwith copies of certain responsive e- mails and photographs. On June 3, \n2019, this office forwarded a copy of the redacted version of the District's written response to\n\nshe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep' t of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 (1997). \n\nSection 7(1)(d)(ii) of FOIA exempts from disclosure records \" created in the\n\ncourse of administrative enforcement proceedings,\" to the extent that their disclosure would\ninterfere with active administrative enforcement proceedings conducted by the public body that\nis the recipient of the request[.]\" In its non-confidential response in this matter, the District\nargued it properly withheld records created in an active administrative enforcement proceeding\nconcerning the development of the property at issue without the proper permits. The District\nexplained it opened an investigation into the specified site regarding violations of the District's\nWatershed Management Ordinance (WMO), and issued a violation report advising the property\nowner of the alleged violation on July 25, 2018. The District described the initial phase of the\nadministrative enforcement process under the Ordinance as follows: \n\nThe WMO governs the issuance of permits to entities\nseeking to develop property within the jurisdiction of the District. \n\nparty to bring about compliance. If compliance cannot be\nachieved, the District will bring a Show Cause Action before a\nHearing Officer[.][3] \n\nOnce this enforcement process started, the District explained, it exchanged internal and external\ne-mails constituting \" the investigatory and fact finding phase of the proceedings that will form\nthe basis for determining how best to proceed with the enforcement action.\" 4 The District argued\nthat disclosure of these e- mails could have jeopardized its enforcement proceeding \" by\nprematurely revealing the nature, scope, direction and focus of the District's investigation to an\nunknown third- party who could then use the information to negatively impact the District's\nenforcement action.\" 5 The Department argued that this matter is similar to Stein v. U.S. \nSecurities & Exchange Comm' n, 266 F. Supp. 3d 326 (D.D.C. 2017)), in which a Federal district\ncourt concluded that e-mails from Securities and Exchange Commission (SEC) investigations\nwere exempt under the Federal FOIA exemption for administrative enforcement proceedings. \n\nIt is uncontested that the District was conducting an active administrative\n\nenforcement proceeding at the time of the request; rather, the issue is whether disclosure of the\nresponsive records would have interfered with those proceedings. Based on its confidential\nreview of the e-mails provided by the District in Exhibit B, this office agrees that it was\nreasonable to conclude that disclosure of most of these records could have compromised the\nadministrative enforcement proceeding. Some of these e- mails contained in-depth discussions\nabout the District's actions going forward.6 These e-mails are similar to the internal SEC e-mails\nfound to be exempt in Stein. See Stein, 266 F. Supp. 3d at 347. If disclosed to an individual\noutside the District, these e-mails could have interfered with how the District proceeded with its\ninvestigation into the WMO violations. Therefore, this office concludes that most of the\nwithheld e-mails are exempt from disclosure under section 7(1)(d)(ii) of FOIA. \n\n3 Letter from James B. Murray, Jr., Head Assistant Attorney/FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 3. \n\n4 Letter from James B. Murray, Jr., Head Assistant Attorney/FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 4. \n\n5 Letter from James B. Murray, Jr., Head Assistant Attorney/ FOIA Officer, Metropolitan Water\n\nReclamation District of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, \n2019), at 5. \n\n6E- mail from Gabrielle Giamarusti, [ Senior] Legal Assistant, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, 2019). See\n\nOn the other hand, the District did not demonstrate by clear and convincing\n\nevidence that the remaining e- mails, if disclosed, would have interfered with its enforcement\nproceeding. In particular, this office points to e-mails exchanged between District staff, the\nproperty owner, and his legal counsel. 7 Although related to its investigation, these e-mails\nsimply relay facts about the alleged WMO violations and do not describe the District's internal\nactions or opinions about this proceeding. The District's speculation that a third party FOIA\nrequester could use the external e-mails to negatively impact the enforcement proceeding is\nvague and conclusory. Accordingly, this office concludes that the District did not sustain its\nburden of showing, by clear and convincing evidence, that all of the e-mails sought by\n\nare exempt from disclosure under section 7(1)(d)(ii) of FOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the District provide\nfootnote seven, subject to redaction of \" private information\" pursuant\n5 ILCS 140/7(1)(b) (West 2018)).8\n\nwith copies of the responsive e-mails identified in\nto section 7(1)(b) of FOIA\n\n7E- mail from Gabrielle Giamarusti, [ Senior] Legal Assistant, Metropolitan Water Reclamation\n\nDistrict of Greater Chicago, to Leo Draws, Assistant Attorney General, Public Access Bureau (May 31, 2019). See\npages 2-4, 10-15, 25-29, and 34-38 of attachment titled Confidential Group Ex B.pdf. \n\n8 Section 7(1)(b) of FOIA exempts from disclosure \"[ p]rivate information, unless disclosure is\n\nrequired by another provision of this Act, a State or federal law or a court order.\" \" Private information\" is defined\nas: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nc.lucentemccullough@ilag.gov or the Chicago address on the first page of this letter. This letter\nserves to close this matter. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n58120 f 71dii proper improper reg auth"}
{"id":937,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-12-15","case_number":null,"request_numbers":["58473"],"title":"Wauconda School District 118 partially violated FOIA in redacting settlement agreement as student records","filename":"58473, issued December 15, 2023.pdf","rel_path":null,"word_count":2467,"summary":"The Daily Herald requested a settlement agreement between a school district and a student's family, which the District redacted citing student record privacy laws. The PAC determined that while some redactions were appropriate to protect student identity, others were improper and must be disclosed.","plain_summary":"A reporter asked a school district for a copy of a legal settlement agreement involving a student. The school district blacked out large portions, claiming they were protected student records under state and federal law. The Illinois Attorney General's office reviewed the document and found that the district did not prove by clear and convincing evidence that all of the redacted information was exempt from disclosure, noting that some limited information did not appear to be individually attributable to any particular student. The determination does not order the district to release any specific information.","holding":"","legal_question":"Whether a school district properly redacted a settlement agreement under FOIA exemptions 7(1)(a), 7(1)(b), and 7(1)(c) by claiming the information constituted protected student records.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7.5"],"public_body":"Wauconda Community Unit School District 118","requesting_party":"Mr. Russell Lissau, Daily Herald","pac_outcome":"Partial violation found; records ordered disclosed","pac_law_type":null,"subject_category":"student records","subject_description":"The request concerned a settlement agreement between a school district and a student's family.","ocr_status":"ok","ocr_quality":93.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.20/58473%2C%20issued%20December%2015%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["settlement agreement","student records","ISSRA","FERPA","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 15, 2023\n\nVia electronic mail\nMr. Russell Lissau\nStaff Writer\nDaily Herald Media Group\n[street address redacted for site publication -- see original PDF]\nrlissau@dailyherald. com\n\nVia electronic mail\nDr. Julia Nadler\nAssistant Superintendent of Special Services\nand Freedom of Information Act Officer\n\nWauconda Community Unit School District 118\n555 North Main Street\nWauconda,  Illinois 60084\njnadler@d118.org\n\nRE:  FOIA Request for Review – 2019 PAC 58473\n\nDear Mr. Lissau and Dr. Nadler: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   \n\nMr. Russell Lissau,  a staff writer for the Daily Herald,  submitted an undated\n\nFOIA request to Wauconda Community Unit School District 118 (District) seeking, in relevant\npart,  a copy of a settlement agreement between the District and a District student' s family.   On\nJune 10, 2019, the District provided a copy of the requested settlement agreement with\nredactions pursuant\n1)(c) (2018)).  Specifically, the District asserted that the redacted information constituted a\nschool student record\"  under the Illinois School Student Records Act ( ISSRA) ( 105 ILCS 10/ 1\n\nto sections 7(1)( a),  7(1)( b),  and 7(1)(c) of FOIA ( 5 ILCS 140/ 7(1)( a), ( 1)( b), \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 •  TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15,  2023\nPage 2\n\net seq. (West 2018))1 and \"education records\" under the federal Family Educational Rights and\nPrivacy Act ( FERPA) ( 20 U.S.C. § 1232g ( 2018)).   Later that same day,  Mr. Lissau submitted\nthis Request for Review contesting the extent of the District's redactions in the responsive\nsettlement agreement. \n\nThis office forwarded a copy of the Request for Review to the District and asked\n\nit to provide an unredacted copy of the requested settlement agreement for our confidential\nreview,  together with a detailed explanation of the legal and factual bases for the applicability of\nthe asserted exemptions.  On June 27, 2019, the District submitted its written response, together\nwith a confidential summary describing the content of the settlement agreement.   On July 2, \n2019, Mr. Lissau replied, reiterating his contentions concerning the extent of the District's\nredactions and asserting that the public had a right to know more information surrounding the\nsettlement in question. \n\nOn August 23, 2019, the District provided this office with an unredacted copy of\n\nthe settlement agreement\nadditional explanation concerning the circumstances of the responsive settlement agreement and\nthe student involved. \n\nreview.   The District also confidentially provided\n\nfor our confidential\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/1.2 (West 2018).  A public body \"has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/1.2 (West 2018). \n\nAs an initial matter, section 2.20 of FOIA (5 ILCS 140/2.20 (West 2020)) \n\nprovides that \"[ a] ll settlement and severance agreements entered into by or on behalf of a public\nbody are public records subject to inspection and copying by the public, provided that\ninformation exempt from disclosure under Section 7 of this Act may be redacted.\"   Accordingly, \nFOIA plainly evinces a strong interest in the disclosure of the type of the settlement agreement\nMr. Lissau is seeking but allows a public body to withhold any discrete portions that consist of\nexempt information. \n\nthe release of such information. \n\n1The District also asserted that section 7.5(r) of FOIA (5 ILCS 140/7.5(r) (West 2018)) prohibited\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15,  2023\nPage 3\n\nSection 7(1)(a) and Section 7.5(r) of FOIA\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\"  (Emphasis added.)  \"[ R]ecords are exempt from disclosure\nunder [ FOIA]  in instances where the plain language contained in a State or federal statute reveals\nthat public access to the records was not intended.\"  Kibort v. Westrom, 371 Ill. App. 3d 247, 256\n2007).   Subject to certain exceptions,  FERPA provides that \"[ n] o funds shall be made available\nunder any applicable program to any educational agency or institution which has a policy or\npractice of permitting the release of education records ( or personally identifiable information\ncontained therein other than directory information * * *)  of students without the written consent\nof their parents[.]\"  20 U.S.C. § 1232g( b)( 1) ( 2018).   Regulations implementing FERPA2 define\nPersonally Identifiable Information\" to include: \n\na) The student's name; \nb) The name of the student' s parent or other family\n\nmembers; \n\nc) The address of the student or student' s family; \nd) A personal identifier, such as the student’ s social\n\nsecurity number,  student number,  or biometric record; \n\ne) Other indirect identifiers, such as the student's date of\n\nbirth,  place of birth,  and mother' s maiden name; \n\nf) Other information that, alone or in combination, is\n\nlinked or linkable to a specific student that would allow a\nreasonable person in the school community, who does not have\npersonal knowledge of the relevant circumstances,  to identify the\nstudent with reasonable certainty; or\n\ng)  Information requested by a person who the educational\nagency or institution reasonably believes knows the identity of the\nstudent to whom the education record relates.   \n\nCourts in other jurisdictions have reconciled the disclosure requirements of other versions of\nFOIA with FERPA's confidentiality provisions by permitting redaction of information that is or\npotentially could be linked to the identity of a student.   C.G. v. Winslow Township Board of\nEducation, 443 N.J. Super. 415, 428, 128 A.3d 1173, 1181 (N.J Super. Ct. 2015) (approving\nredaction of initials and docket number in a settlement agreement which could potentially be\nlinked to the identity of a student); United States v. Miami University, 294 F.3d 797, 824 (6th\nCir. 2002) ( newspaper \" may still request student disciplinary records that do not contain\n\n234 C.F.R. § 99.3. \n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15,  2023\nPage 4\n\npersonally identifiable information. Nothing in the FERPA would prevent the Universities from\nreleasing properly redacted records.\"). \n\nSimilarly, section 7.5(r) of FOIA exempts from inspection and copying\n\ninformation prohibited from being disclosed by the Illinois School Student Records Act\nISSRA).  Section 6(a) of ISSRA (105 ILCS 10/6(a) ( West 2020)) provides that \"[ n]o school\nstudent records or information contained therein may be released,  transferred,  disclosed or\notherwise disseminated[.]\"   Section 2(d) of ISSRA (105 ILCS 10/2(d) (West 2020)) defines\nschool student record\"  as \" any writing or other recorded information concerning a student and\nby which a student may be individually identified, maintained by a school or at its direction or\nby an employee of a school,  regardless of how or where the information is stored.\"  ( Emphasis\nadded.)  \" A masked record, which deletes individual identifying information, does not fall within\nthe definition of a school student record,  and is not prohibited from disclosure under [ ISSRA].\" \nBowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 379 (1989). \n\nMr. Lissau has not contested the withholding of the student's name and other\n\nidentifying information but rather seeks information concerning the circumstances leading up to\nthe settlement agreement, together with information concerning the special training the District\nindicated it would subsequently implement for District staff.  The non-confidential portion of the\nDistrict' s June 27, 2019,  response to this office generally provided that \"[ t]he student information\nredacted included the name of the student and details related to the student and the student's\neducation at [ the]  District[.]\" 3 However,  in portions of its June 27, 2019,  response and in an\nAugust 23, 2019, response, both of which were provided to this office on a confidential basis,4\nthe District described in greater detail the circumstances of the responsive settlement.   This\noffice has reviewed an unredacted copy of the settlement agreement together with the District's\nexplanations and agrees that,  due to the highly unique circumstances underlying this matter, \ndisclosure of most of the redacted information could identify or potentially be linked to the\nidentity of the individual student in question.   However,  as described further below,  disclosure of\ncertain limited information would not appear to be individually attributable to any particular\nstudent.   Accordingly,  the District did not prove by clear and convincing evidence that all of the\nredacted information was exempt from disclosure under section 7.5(r) of FOIA. \n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (June 27, 2019), at 5. \n\n3Letter from Tamara B. Starks, Engler Callaway Baasten &  Sraga, LLC, to Christopher R. Boggs, \n\nthe information provided to this office on a confidential basis. \n\n4Section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2020)) precludes this office from referencing\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15,  2023\nPage 5\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"   Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\nright to privacy outweighs any legitimate public interest in\nobtaining the information.   The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.   \n\nA public body' s contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis.  Chicago\nJourneymen Plumbers'  Local Union 130,  U.A. v. Department of Public Health,  327 Ill. App.  3d\n192, 196 (1st Dist. 2001).  The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption,  and the burden is on the government agency\nhaving charge of the record to prove that standard has been met.  Schessler v. Department of\nConservation,  256 Ill. App.  3d 198,  202 ( 4th Dist.  1994).   The Illinois Supreme Court has held\nthat if a record can be redacted to prevent identification of the subjects of records containing\nhighly personal\ndisclosure pursuant to section 7(1)(c) of FOIA.  Bowie, 128 Ill. at 381 (1989).  Illinois courts\nconsider the following factors in determining whether disclosure of information would constitute\nan unwarranted invasion of personal privacy:  \"(1) the plaintiff's interest in disclosure, (2) the\npublic interest in disclosure, ( 3) the degree of invasion of personal privacy,  and ( 4) the\navailability of alternative means of obtaining the requested information.\"  National Ass'n of\nCriminal Defense Lawyers v. Chicago Police Department,  399 Ill. App.  3d 1, 13 ( 1st Dist.  2010). \n\ninformation,  the remaining portions of those records are not exempt from\n\nThe non- confidential portion of the District' s response to this office generally\n\nasserted that the requested settlement agreement included \"personal information\", the disclosure\nof which would constitute a clearly unwarranted invasion of personal privacy.   Mr. Lissau has\nconsistently emphasized that he does not seek the name or other personal identifiers of the\nstudent in question. \n\nUnder the first and second factors of the balancing test,  Mr. Lissau,  as a member\nof the news media, has a general interest in disclosure of information that could potentially shed\nlight on the use of public funds by the District.   Further,  as noted above,  there is a strong public\n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15,  2023\nPage 6\n\ninterest in the disclosure of settlement agreements under section 2.20 of FOIA.  Therefore, Mr. \nLissau' s interest in the information and the public' s interest are aligned.   \n\nAs to the third factor–– the degree of invasion of personal privacy–– portions of the\n\nredacted information are of a highly personal nature.  However, if that information is not\nattributable to a particular student,  the information does not maintain its highly personal\ncharacter.  Finally, with respect to the fourth factor, there do not appear to be any other means of\nobtaining the requested information. \n\nAfter carefully reviewing an unredacted copy of the settlement agreement,  the\n\nDistrict's responses to this office, and the analysis set out in National Ass'n of Criminal Defense\nLawyers v. Chicago Police Department,  this office concludes that,  with the student' s identifying\ninformation remaining redacted, disclosure of certain information would not constitute an\nunwarranted invasion of the student' s personal privacy nor would it be sufficient\nto identify a\nparticular student.  For example, a discrete portion of the agreement concerning District staff\npertains to specific categories of students and seems unlikely to be attributable to any individual\nstudent.  If this type of information could identify or potentially identify any individual students, \nthe District has not explained how,  and such a possibility is not apparent\nto this office.   Similarly, \nparagraphs 9 and 10 describe one-time payments of District funds for services that are not\nattributable to the student or their parents provided names are redacted.   Accordingly,  this office\nconcludes that, on balance, the District has not sustained its burden of demonstrating that certain\ndiscrete information is exempt from disclosure pursuant\nto section 7(1)( c) of FOIA.   Because this\noffice has determined that the same portions cannot potentially be linked to the identity of a\nstudent,  they also are not prohibited from being disclosed by FERPA or ISSRA and therefore are\nnot exempt from disclosure pursuant to sections 7(1)(a) or 7.5 of FOIA.   \n\nIn accordance with the conclusions expressed above, this office requests that the\n\nDistrict disclose to Mr. Lissau ( 1) the redacted portions of page 1 and the redacted portions of the\nthird paragraph of page 2, with the exception of names and ages; ( 2) portions of a redacted\nsentence,  which begins on page 2 and ends on page 3, under clause 2(a);  and, ( 3) the entireties of\nparagraphs 9 and 10 on page 5 of the settlement agreement, excluding any reference to the first\nor last name ( and corresponding pronouns)  of the student or their parents. \n\n\fMr. Russell Lissau\nDr. Julia Nadler\nDecember 15,  2023\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   Please contact me at\nChristopher.Boggs@ilag.gov if you have any questions.   \n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Bureau\nPublic Access Bureau\n\n58473 f 71a improper 71c proper improper 75r proper improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school district's settlement agreement with a student's family","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58473/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nDecember 15, 2023\n\nVia electronic mail\nMr. Russell Lissau\nStaff Writer\nDaily Herald Media Group\n[street address redacted for site publication -- see original PDF]\nrlissau@dailyherald. com\n\nVia electronic mail\nDr. Julia Nadler\nAssistant Superintendent of Special Services\nand Freedom of Information Act Officer\n\nWauconda Community Unit School District 118\n555 North Main Street\nWauconda, Illinois 60084\njnadler@d118.org\n\nRE: FOIA Request for Review – 2019 PAC 58473\n\nDear Mr. Lissau and Dr. Nadler: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). \n\nMr. Russell Lissau, a staff writer for the Daily Herald, submitted an undated\n\nFOIA request to Wauconda Community Unit School District 118 (District) seeking, in relevant\npart, a copy of a settlement agreement between the District and a District student's family. On\nJune 10, 2019, the District provided a copy of the requested settlement agreement with\nredactions pursuant\n1)(c) (2018)). Specifically, the District asserted that the redacted information constituted a\nschool student record\" under the Illinois School Student Records Act (ISSRA) (105 ILCS 10/ 1\n\nto sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(a), (1)(b), \n\net seq. (West 2018))1 and \"education records\" under the federal Family Educational Rights and\nPrivacy Act (FERPA) (20 U.S.C. § 1232g (2018)). Later that same day, Mr. Lissau submitted\nthis Request for Review contesting the extent of the District's redactions in the responsive\nsettlement agreement. \n\nThis office forwarded a copy of the Request for Review to the District and asked\n\nit to provide an unredacted copy of the requested settlement agreement for our confidential\nreview, together with a detailed explanation of the legal and factual bases for the applicability of\nthe asserted exemptions. On June 27, 2019, the District submitted its written response, together\nwith a confidential summary describing the content of the settlement agreement. On July 2, \n2019, Mr. Lissau replied, reiterating his contentions concerning the extent of the District's\nredactions and asserting that the public had a right to know more information surrounding the\nsettlement in question. \n\nOn August 23, 2019, the District provided this office with an unredacted copy of\n\nthe settlement agreement\nadditional explanation concerning the circumstances of the responsive settlement agreement and\nthe student involved. \n\nreview. The District also confidentially provided\n\nfor our confidential\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2018). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2018). \n\nAs an initial matter, section 2.20 of FOIA (5 ILCS 140/2.20 (West 2020)) \n\nprovides that \"[ a] ll settlement and severance agreements entered into by or on behalf of a public\nbody are public records subject to inspection and copying by the public, provided that\ninformation exempt from disclosure under Section 7 of this Act may be redacted.\" Accordingly, \nFOIA plainly evinces a strong interest in the disclosure of the type of the settlement agreement\nMr. Lissau is seeking but allows a public body to withhold any discrete portions that consist of\nexempt information. \n\nthe release of such information. \n\n1 The District also asserted that section 7.5(r) of FOIA (5 ILCS 140/7.5(r) (West 2018)) prohibited\n\nSection 7(1)(a) and Section 7.5(r) of FOIA\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" (Emphasis added.) \"[ R]ecords are exempt from disclosure\nunder [ FOIA] in instances where the plain language contained in a State or federal statute reveals\nthat public access to the records was not intended.\" Kibort v. Westrom, 371 Ill. App. 3d 247, 256\n2007). Subject to certain exceptions, FERPA provides that \"[ n] o funds shall be made available\nunder any applicable program to any educational agency or institution which has a policy or\npractice of permitting the release of education records (or personally identifiable information\ncontained therein other than directory information * * *) of students without the written consent\nof their parents[.]\" 20 U.S.C. § 1232g(b)(1) (2018). Regulations implementing FERPA2 define\nPersonally Identifiable Information\" to include: \n\na) The student's name; \nb) The name of the student's parent or other family\n\nmembers; \n\nc) The address of the student or student's family; \nd) A personal identifier, such as the student’ s social\n\nsecurity number, student number, or biometric record; \n\ne) Other indirect identifiers, such as the student's date of\n\nbirth, place of birth, and mother's maiden name; \n\nf) Other information that, alone or in combination, is\n\nlinked or linkable to a specific student that would allow a\nreasonable person in the school community, who does not have\npersonal knowledge of the relevant circumstances, to identify the\nstudent with reasonable certainty; or\n\ng) Information requested by a person who the educational\nagency or institution reasonably believes knows the identity of the\nstudent to whom the education record relates. \n\nCourts in other jurisdictions have reconciled the disclosure requirements of other versions of\nFOIA with FERPA's confidentiality provisions by permitting redaction of information that is or\npotentially could be linked to the identity of a student. C.G. v. Winslow Township Board of\nEducation, 443 N.J. Super. 415, 428, 128 A.3d 1173, 1181 (N.J Super. Ct. 2015) (approving\nredaction of initials and docket number in a settlement agreement which could potentially be\nlinked to the identity of a student); United States v. Miami University, 294 F.3d 797, 824 (6th\n\npersonally identifiable information. Nothing in the FERPA would prevent the Universities from\nreleasing properly redacted records.\"). \n\nSimilarly, section 7.5(r) of FOIA exempts from inspection and copying\n\ninformation prohibited from being disclosed by the Illinois School Student Records Act\nISSRA). Section 6(a) of ISSRA (105 ILCS 10/6(a) (West 2020)) provides that \"[ n]o school\nstudent records or information contained therein may be released, transferred, disclosed or\notherwise disseminated[.]\" Section 2(d) of ISSRA (105 ILCS 10/2(d) (West 2020)) defines\nschool student record\" as \" any writing or other recorded information concerning a student and\nby which a student may be individually identified, maintained by a school or at its direction or\nby an employee of a school, regardless of how or where the information is stored.\" (Emphasis\nadded.) \" A masked record, which deletes individual identifying information, does not fall within\nthe definition of a school student record, and is not prohibited from disclosure under [ ISSRA].\" \nBowie v. Evanston Community Consolidated School District No. 65, 128 Ill. 2d 373, 379 (1989). \n\nMr. Lissau has not contested the withholding of the student's name and other\n\nidentifying information but rather seeks information concerning the circumstances leading up to\nthe settlement agreement, together with information concerning the special training the District\nindicated it would subsequently implement for District staff. The non-confidential portion of the\nDistrict's June 27, 2019, response to this office generally provided that \"[ t]he student information\nredacted included the name of the student and details related to the student and the student's\neducation at [ the] District[.]\" 3 However, in portions of its June 27, 2019, response and in an\nAugust 23, 2019, response, both of which were provided to this office on a confidential basis,4\nthe District described in greater detail the circumstances of the responsive settlement. This\noffice has reviewed an unredacted copy of the settlement agreement together with the District's\nexplanations and agrees that, due to the highly unique circumstances underlying this matter, \ndisclosure of most of the redacted information could identify or potentially be linked to the\nidentity of the individual student in question. However, as described further below, disclosure of\ncertain limited information would not appear to be individually attributable to any particular\nstudent. Accordingly, the District did not prove by clear and convincing evidence that all of the\nredacted information was exempt from disclosure under section 7.5(r) of FOIA. \n\nSupervising Attorney, Public Access Bureau, Office of the Attorney General (June 27, 2019), at 5. \n\n3 Letter from Tamara B. Starks, Engler Callaway Baasten & Sraga, LLC, to Christopher R. Boggs, \n\nthe information provided to this office on a confidential basis. \n\n4 Section 9.5(d) of FOIA (5 ILCS 140/9.5(d) (West 2020)) precludes this office from referencing\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy. \n\nA public body's contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 (1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). The Illinois Supreme Court has held\nthat if a record can be redacted to prevent identification of the subjects of records containing\nhighly personal\ndisclosure pursuant to section 7(1)(c) of FOIA. Bowie, 128 Ill. at 381 (1989). Illinois courts\nconsider the following factors in determining whether disclosure of information would constitute\nan unwarranted invasion of personal privacy: \"(1) the plaintiff's interest in disclosure, (2) the\npublic interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the\navailability of alternative means of obtaining the requested information.\" National Ass'n of\nCriminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010). \n\ninformation, the remaining portions of those records are not exempt from\n\nThe non- confidential portion of the District's response to this office generally\n\nasserted that the requested settlement agreement included \"personal information\", the disclosure\nof which would constitute a clearly unwarranted invasion of personal privacy. Mr. Lissau has\nconsistently emphasized that he does not seek the name or other personal identifiers of the\nstudent in question. \n\nUnder the first and second factors of the balancing test, Mr. Lissau, as a member\nof the news media, has a general interest in disclosure of information that could potentially shed\nlight on the use of public funds by the District. Further, as noted above, there is a strong public\n\ninterest in the disclosure of settlement agreements under section 2.20 of FOIA. Therefore, Mr. \nLissau's interest in the information and the public's interest are aligned. \n\nAs to the third factor–– the degree of invasion of personal privacy–– portions of the\n\nredacted information are of a highly personal nature. However, if that information is not\nattributable to a particular student, the information does not maintain its highly personal\ncharacter. Finally, with respect to the fourth factor, there do not appear to be any other means of\nobtaining the requested information. \n\nAfter carefully reviewing an unredacted copy of the settlement agreement, the\n\nDistrict's responses to this office, and the analysis set out in National Ass'n of Criminal Defense\nLawyers v. Chicago Police Department, this office concludes that, with the student's identifying\ninformation remaining redacted, disclosure of certain information would not constitute an\nunwarranted invasion of the student's personal privacy nor would it be sufficient\nto identify a\nparticular student. For example, a discrete portion of the agreement concerning District staff\npertains to specific categories of students and seems unlikely to be attributable to any individual\nstudent. If this type of information could identify or potentially identify any individual students, \nthe District has not explained how, and such a possibility is not apparent\nto this office. Similarly, \nparagraphs 9 and 10 describe one-time payments of District funds for services that are not\nattributable to the student or their parents provided names are redacted. Accordingly, this office\nconcludes that, on balance, the District has not sustained its burden of demonstrating that certain\ndiscrete information is exempt from disclosure pursuant\nto section 7(1)(c) of FOIA. Because this\noffice has determined that the same portions cannot potentially be linked to the identity of a\nstudent, they also are not prohibited from being disclosed by FERPA or ISSRA and therefore are\nnot exempt from disclosure pursuant to sections 7(1)(a) or 7.5 of FOIA. \n\nIn accordance with the conclusions expressed above, this office requests that the\n\nDistrict disclose to Mr. Lissau (1) the redacted portions of page 1 and the redacted portions of the\nthird paragraph of page 2, with the exception of names and ages; (2) portions of a redacted\nsentence, which begins on page 2 and ends on page 3, under clause 2(a); and, (3) the entireties of\nparagraphs 9 and 10 on page 5 of the settlement agreement, excluding any reference to the first\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at\nChristopher.Boggs@ilag.gov if you have any questions. \n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Bureau\nPublic Access Bureau\n\n58473 f 71a improper 71c proper improper 75r proper improper sd"}
{"id":938,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-02","case_number":null,"request_numbers":["58605"],"title":"Crest Hill Police Department ordered to disclose redacted crash records under FOIA","filename":"58605, issued October 2, 2023.pdf","rel_path":null,"word_count":1761,"summary":"A reporter requested police and investigation reports regarding a fatal car crash, which the Crest Hill Police Department denied citing an ongoing investigation. The PAC closed the matter without issuing a binding opinion.","plain_summary":"A reporter requested records about a fatal crash from a police department. The PAC found that witness statements and information identifying an unarrested suspect could be withheld under the ongoing-investigation exemption, but the department had not shown that the remaining information was exempt. It was asked to provide redacted copies, with only permissible private, birth-date, and witness-identifying information withheld.","holding":"The Police Department did not violate FOIA by withholding witness statements and suspect-identifying information under section 7(1)(d)(vii), but must disclose redacted copies of the requested records.","legal_question":"Whether the Crest Hill Police Department properly denied a FOIA request for records related to a fatal car crash under the exemption for ongoing investigations.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7(1)(d)(ii)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(ii)","7(1)(b)","7(1)(c)"],"public_body":"Crest Hill Police Department","requesting_party":"Mr. Felix Sarver, Herald News","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police, traffic, crash, and internal investigation reports concerning a fatal motor vehicle accident.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vii/58605%2C%20issued%20October%202%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","fatal crash","investigatory records","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 2, 2023\n\nVia electronic mail\nMr. Felix Sarver\nNews Reporter, Herald News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia.com\n\nVia electronic mail\nMr. Timi Tucker\nFOIA Officer\nCrest Hill Police Department\n1610 Plainfield Road\nCrest Hill, Illinois 60403\nttucker@cityofcresthill.com\n\nRE:  FOIA Request for Review – 2019 PAC 58605; 19-0741\n\nDear Mr. Sarver and Mr. Tucker: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)). \n\nOn June 3, 2019,  Mr. Felix Sarver,  a reporter with the Herald- News,  submitted a\n\nFOIA request to the Crest Hill Police Department (Police Department) seeking copies of the\npolice,  traffic,  crash,  and internal\n2019.  On June 7, 2019, the Police Department denied Mr. Sarver's request pursuant to section\n7(1)( d)( ii) of FOIA,  citing a current investigation into the incident. 1 On June 14, 2019,  this\noffice received Mr. Sarver's Request for Review challenging the Police Department's denial.  \n\ninvestigation reports pertaining to a fatal car crash on May 26, \n\n3, 2018. \n\n15 ILCS 140/7(1)(d)(ii) (West 2017 Supp.), as amended by Public Act 100-732, effective August\n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 2\n\nOn June 20, 2019, this office sent a copy of Mr. Sarver's Request for Review to\nthe Police Department and asked it to provide this office with unredacted copies of the withheld\nrecords and a detailed explanation of the factual and legal bases for the applicability of section\n7(1)( d)( ii) of FOIA. 2 On June 25, 2019,  the Police Department provided the responsive records\nfor this office's confidential review and a written answer; the Police Department provided\nanother copy of its response to this office on January 2, 2020.   In its written answer,  the Police\nDepartment clarified it withheld the responsive records pursuant to sections 7(1)(d)(iv) and\n7(1)( d)( vii) of FOIA. 3 On January 7, 2020,  this office forwarded a copy of the Police\nDepartment's written answer to Mr. Sarver; he did not reply. \n\nDETERMINATION\n\nUnder FOIA, \"[a]ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2022);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006).  Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.  5 ILCS 140/1.2 (West 2022).  The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 (1997). \n\nSections 7(1)(d)(iv) and 7(1)(d)(vii) of FOIA\n\nSections 7(1)(d)(iv) and 7(1)(d)(vii) of FOIA exempt from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would:  \n\niv)  unavoidably disclose the identity of a\n\nconfidential source,  confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative,  investigative,  \nlaw enforcement, or penal agencies; except that the\n\ninformation furnished only\n\n3, 2018. \n\n25 ILCS 140/7(1)(d)(ii) (West 2017 Supp.), as amended by Public Act 100-732, effective August\n\neffective August 3, 2018. \n\n35 ILCS 140/7(1)(d)(iv), (1)(d)(vii) (West 2017 Supp.), as amended by Public Act 100-732, \n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 3\n\nidentities of witnesses to traffic accidents, traffic accident\nreports,  and rescue reports shall be provided by agencies of\nlocal government, except when disclosure would interfere\nwith an active criminal\nagency that is the recipient of the request; \n\ninvestigation conducted by the\n\nvii)  obstruct an ongoing criminal investigation by\n\nthe agency that is the recipient of the request.  \n\nConclusory statements that the disclosure of requested records would obstruct a law enforcement\nproceeding are insufficient to demonstrate that law enforcement records are exempt from\ndisclosure under FOIA.   See Day v. City of Chicago,  388 Ill. App.  3d 70,  74- 77 ( 1st Dist.  2009).  \nIn Day, the court explained:  \" Simply saying there is an 'ongoing criminal investigation because\nthe case has not been cleared,'  with little additional explanation,  is not ' objective indicia' \nsufficient to show the ongoing investigation exemption applies.\"  Day, 388 Ill. App. 3d at 76; see\nalso Ill. Att' y Gen.  Pub.  Acc. Op.  No. 17- 011,  issued August 14, 2017,  at 7-8 (public body\nimproperly withheld record under section 7(1)(d)(vii) because it failed to demonstrate that\ndisclosure would interfere with law enforcement);  Baudin v. City of Crystal Lake,  192 Ill. App. \n3d 530, 536 (2d Dist. 1989) (\" The classification of information as 'law enforcement' or\ninvestigatory'  does not necessarily foreclose access unless it can be shown,  in a particular case, \nthat disclosure would interfere with law enforcement and would, therefore, not be in the public\ninterest.\"). \n\nIn its response to this office,  the Police Department maintained that it properly\n\nwithheld the requested records concerning the car crash because of a pending investigation.  The\nPolice Department asserted: \n\nSpecifically,  the incident is actively being investigated and\n\ninformation developed concerning the event; this includes taking\nwitness statements,  which are exempt,  and locating a person or\npersons who may have been involved in the incident. Releasing the\ninformation you have requested to the public at this time can\nobstruct these ongoing efforts to investigate what is a criminal\nmatter.[ 4] \n\n4Letter from Edward Clark, Chief of Police, and Timi Tucker, FOIA Officer, Crest Hill Police\n\nDepartment, to Betty A. Johnson, Administrative Secretary, Office of the Illinois Attorney General (June 25, 2019), \nat [2]. \n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 4\n\nHaving reviewed the records and the Police Department's response, this office has\n\ndetermined that at the time of the FOIA request,  which was submitted only about a week after\nthe car crash, disclosure of witness statements and information identifying and directly linked to\na suspect who had not been arrested could have been reasonably expected to interfere with the\nPolice Department's ability to investigate the circumstances surrounding the incident.  This office\nhas confirmed that the records describe the Police Department' s efforts to identify and interview\nall individuals who were involved in or had relevant information concerning the incident, and\nthat it had not located all potential suspects.   The records indicate that a potential suspect might\nhave information critical to reconstructing the events leading up to the car crash.  Because the\nPolice Department had not yet located all individuals who were involved in the incident, \ndisclosure of witness statements and information identifying and directly linked to the suspect\nposed a likelihood of interfering with Department' s ability to corroborate or discount statements\nand locate the suspect and additional relevant evidence.  Accordingly, this office concludes that\nthe Police Department did not violate FOIA by withholding those portions of the records\nresponsive to Mr. Sarver's June 3, 2019, FOIA request pursuant to section 7(1)(d)(vii).  The\nDepartment,  however,  provided a largely conclusory explanation that does not demonstrate by\nclear and convincing evidence that disclosure of the remaining information would have\nobstructed its ongoing criminal\narrested, and that section 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2022)) requires disclosure\nof certain information concerning arrestees. 5 6\n\ninvestigation.   This office also notes that an individual was\n\nIn accordance with the conclusions expressed above,  this office requests that the\n\nPolice Department disclose to Mr. Sarver with redacted copies of the requested records.  In\naddition to redacting witness statements and the identity of the suspect who had not been arrested\n\n5Section 2.15(a) of FOIA provides: \n\na) Arrest reports. The following chronologically maintained arrest and\n\ncriminal history information maintained by State or local criminal justice\nagencies shall be furnished as soon as practical, but in no event later than 72\nhours after the arrest, notwithstanding the time limits otherwise provided for in\nSection 3 of this Act: (i) information that identifies the individual, including the\nname, age, address, and photograph, when and if available; (ii) information\ndetailing any charges relating to the arrest; (iii) the time and location of the\narrest; ( iv) the name of the investigating or arresting law enforcement agency; \nv) (blank); and (vi) if the individual is incarcerated, the time and date that the\nindividual was received into, discharged from, or transferred from the arresting\nagency's custody.  \n\n6Section 2.15(c) of FOIA (5 ILCS 140/2.15(c) (West 2022))  provides the information in items\n\n2.15(a)( iii) through (vi) may be withheld for three enumerated reasons; the Department has not demonstrated that\nany of those reasons apply. \n\n\fMr. Felix Sarver\nMr. Timi Tucker\nOctober 2, 2023\nPage 5\n\nat the time of the report, the Department may redact \"private information\" under section 7(1)(b)7\n5 ILCS 140/ 7(1)( b) ( West 2022)),  birth dates pursuant\nWest 2022)), and the names and other identifying details of witnesses under 7(1)(d)(iv) of\nFOIA.   Given the amount of time that has passed since the incident,  the Department may wish to\nconsider whether additional substantive portions of the records may be released at this time. \n\nto section 7(1)( c) 8 ( 5 ILCS 140/ 7(1)( c) \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions, please contact me at the Springfield address on the first page of this letter.        \n\nVery truly yours, \n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n58605 f 71dvii proper improper pd\n\n7Section 7(1)(b) of FOIA exempts from disclosure \" private information,\"  which FOIA defines as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\ndisclosure pursuant to section 7(1)(c) of FOIA.  Ill. Pub. Acc. Op. No. 12 -009, issued November 7, 2016, at 12. \n\n8The Attorney General has issued a binding opinion concluding that birth dates are exempt from\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports on a fatal motor vehicle accident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"closed_no_further_action","plain_summary_pre_audit_fix":"A reporter asked the Crest Hill Police Department for records related to a fatal car crash, but the department refused to release them, citing an ongoing investigation. The Illinois Attorney General's office reviewed the case and determined that the department did not violate FOIA by withholding witness statements and suspect-identifying information under section 7(1)(d)(vii), but it also ordered the department to disclose redacted copies of the records, allowing redactions for witness statements, suspect identity, private information, birth dates, and witness details.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58605/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 2, 2023\n\nVia electronic mail\nMr. Felix Sarver\nNews Reporter, Herald News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia.com\n\nVia electronic mail\nMr. Timi Tucker\nFOIA Officer\nCrest Hill Police Department\n1610 Plainfield Road\nCrest Hill, Illinois 60403\nttucker@cityofcresthill.com\n\nRE: FOIA Request for Review – 2019 PAC 58605; 19-0741\n\nDear Mr. Sarver and Mr. Tucker: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). \n\nOn June 3, 2019, Mr. Felix Sarver, a reporter with the Herald- News, submitted a\n\nFOIA request to the Crest Hill Police Department (Police Department) seeking copies of the\npolice, traffic, crash, and internal\n2019. On June 7, 2019, the Police Department denied Mr. Sarver's request pursuant to section\n7(1)(d)(ii) of FOIA, citing a current investigation into the incident. 1 On June 14, 2019, this\noffice received Mr. Sarver's Request for Review challenging the Police Department's denial. \n\ninvestigation reports pertaining to a fatal car crash on May 26, \n\n3, 2018. \n\n15 ILCS 140/7(1)(d)(ii) (West 2017 Supp.), as amended by Public Act 100-732, effective August\n\nOn June 20, 2019, this office sent a copy of Mr. Sarver's Request for Review to\nthe Police Department and asked it to provide this office with unredacted copies of the withheld\nrecords and a detailed explanation of the factual and legal bases for the applicability of section\n7(1)(d)(ii) of FOIA. 2 On June 25, 2019, the Police Department provided the responsive records\nfor this office's confidential review and a written answer; the Police Department provided\nanother copy of its response to this office on January 2, 2020. In its written answer, the Police\nDepartment clarified it withheld the responsive records pursuant to sections 7(1)(d)(iv) and\n7(1)(d)(vii) of FOIA. 3 On January 7, 2020, this office forwarded a copy of the Police\nDepartment's written answer to Mr. Sarver; he did not reply. \n\nDETERMINATION\n\nUnder FOIA, \"[a]ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSections 7(1)(d)(iv) and 7(1)(d)(vii) of FOIA\n\nSections 7(1)(d)(iv) and 7(1)(d)(vii) of FOIA exempt from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies; except that the\n\ninformation furnished only\n\n3, 2018. \n\n25 ILCS 140/7(1)(d)(ii) (West 2017 Supp.), as amended by Public Act 100-732, effective August\n\nidentities of witnesses to traffic accidents, traffic accident\nreports, and rescue reports shall be provided by agencies of\nlocal government, except when disclosure would interfere\nwith an active criminal\nagency that is the recipient of the request; \n\ninvestigation conducted by the\n\nvii) obstruct an ongoing criminal investigation by\n\nthe agency that is the recipient of the request. \n\nConclusory statements that the disclosure of requested records would obstruct a law enforcement\nproceeding are insufficient to demonstrate that law enforcement records are exempt from\ndisclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74- 77 (1st Dist. 2009). \nIn Day, the court explained: \" Simply saying there is an 'ongoing criminal investigation because\nthe case has not been cleared,' with little additional explanation, is not ' objective indicia' \nsufficient to show the ongoing investigation exemption applies.\" Day, 388 Ill. App. 3d at 76; see\nalso Ill. Att' y Gen. Pub. Acc. Op. No. 17- 011, issued August 14, 2017, at 7-8 (public body\nimproperly withheld record under section 7(1)(d)(vii) because it failed to demonstrate that\ndisclosure would interfere with law enforcement); Baudin v. City of Crystal Lake, 192 Ill. App. \n3d 530, 536 (2d Dist. 1989) (\" The classification of information as 'law enforcement' or\ninvestigatory' does not necessarily foreclose access unless it can be shown, in a particular case, \nthat disclosure would interfere with law enforcement and would, therefore, not be in the public\ninterest.\"). \n\nIn its response to this office, the Police Department maintained that it properly\n\nwithheld the requested records concerning the car crash because of a pending investigation. The\nPolice Department asserted: \n\nSpecifically, the incident is actively being investigated and\n\ninformation developed concerning the event; this includes taking\nwitness statements, which are exempt, and locating a person or\npersons who may have been involved in the incident. Releasing the\ninformation you have requested to the public at this time can\nobstruct these ongoing efforts to investigate what is a criminal\nmatter.[ 4] \n\n4 Letter from Edward Clark, Chief of Police, and Timi Tucker, FOIA Officer, Crest Hill Police\n\nDepartment, to Betty A. Johnson, Administrative Secretary, Office of the Illinois Attorney General (June 25, 2019), \n\nHaving reviewed the records and the Police Department's response, this office has\n\ndetermined that at the time of the FOIA request, which was submitted only about a week after\nthe car crash, disclosure of witness statements and information identifying and directly linked to\na suspect who had not been arrested could have been reasonably expected to interfere with the\nPolice Department's ability to investigate the circumstances surrounding the incident. This office\nhas confirmed that the records describe the Police Department's efforts to identify and interview\nall individuals who were involved in or had relevant information concerning the incident, and\nthat it had not located all potential suspects. The records indicate that a potential suspect might\nhave information critical to reconstructing the events leading up to the car crash. Because the\nPolice Department had not yet located all individuals who were involved in the incident, \ndisclosure of witness statements and information identifying and directly linked to the suspect\nposed a likelihood of interfering with Department's ability to corroborate or discount statements\nand locate the suspect and additional relevant evidence. Accordingly, this office concludes that\nthe Police Department did not violate FOIA by withholding those portions of the records\nresponsive to Mr. Sarver's June 3, 2019, FOIA request pursuant to section 7(1)(d)(vii). The\nDepartment, however, provided a largely conclusory explanation that does not demonstrate by\nclear and convincing evidence that disclosure of the remaining information would have\nobstructed its ongoing criminal\narrested, and that section 2.15(a) of FOIA (5 ILCS 140/2.15(a) (West 2022)) requires disclosure\nof certain information concerning arrestees. 5 6\n\ninvestigation. This office also notes that an individual was\n\nIn accordance with the conclusions expressed above, this office requests that the\n\nPolice Department disclose to Mr. Sarver with redacted copies of the requested records. In\naddition to redacting witness statements and the identity of the suspect who had not been arrested\n\n5 Section 2.15(a) of FOIA provides: \n\na) Arrest reports. The following chronologically maintained arrest and\n\ncriminal history information maintained by State or local criminal justice\nagencies shall be furnished as soon as practical, but in no event later than 72\nhours after the arrest, notwithstanding the time limits otherwise provided for in\nSection 3 of this Act: (i) information that identifies the individual, including the\nname, age, address, and photograph, when and if available; (ii) information\ndetailing any charges relating to the arrest; (iii) the time and location of the\narrest; (iv) the name of the investigating or arresting law enforcement agency; \nv) (blank); and (vi) if the individual is incarcerated, the time and date that the\nindividual was received into, discharged from, or transferred from the arresting\nagency's custody. \n\n6 Section 2.15(c) of FOIA (5 ILCS 140/2.15(c) (West 2022)) provides the information in items\n\n2.15(a)(iii) through (vi) may be withheld for three enumerated reasons; the Department has not demonstrated that\n\nat the time of the report, the Department may redact \"private information\" under section 7(1)(b)7\n5 ILCS 140/ 7(1)(b) (West 2022)), birth dates pursuant\nWest 2022)), and the names and other identifying details of witnesses under 7(1)(d)(iv) of\nFOIA. Given the amount of time that has passed since the incident, the Department may wish to\nconsider whether additional substantive portions of the records may be released at this time. \n\nto section 7(1)(c) 8 (5 ILCS 140/ 7(1)(c) \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at the Springfield address on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n58605 f 71dvii proper improper pd\n\n7 Section 7(1)(b) of FOIA exempts from disclosure \" private information,\" which FOIA defines as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\ndisclosure pursuant to section 7(1)(c) of FOIA. Ill. Pub. Acc. Op. No. 12 -009, issued November 7, 2016, at 12. \n\n8 The Attorney General has issued a binding opinion concluding that birth dates are exempt from"}
{"id":939,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-25","case_number":null,"request_numbers":["58607"],"title":"City of Joliet FOIA partial violation for redacting phone number and hospital name","filename":"58607, issued May 25, 2023.pdf","rel_path":null,"word_count":1959,"summary":"The requester challenged the City of Joliet's redaction of police reports under various FOIA exemptions; the PAC determined that some redactions were improper and ordered the release of additional information.","plain_summary":"A reporter requested police reports from the City of Joliet, but the City redacted portions of the records, citing several FOIA exemptions. The Illinois Attorney General's office reviewed the unredacted records and found that most redactions were proper, but two specific items—a business phone number and the name of a treating hospital—were not exempt. The office requested that the City provide the reporter with copies of the non-exempt portions of the narrative sections.","holding":"The City of Joliet improperly redacted a business phone number and the name of a treating hospital, but all other redactions were upheld.","legal_question":"Whether the City of Joliet properly applied FOIA exemptions 7(1)(b), 7(1)(b-5), 7(1)(c), 7(1)(d)(iii), and 7(1)(d)(iv) to redact narrative sections of police reports.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(b-5)","7(1)(c)","7(1)(d)(iii)","7(1)(d)(iv)"],"public_body":"City of Joliet","requesting_party":"Mr. Felix Sarver (The Herald-News)","pac_outcome":"Partial violation found; records ordered released","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports and complaints regarding a specific individual over a multi-year period.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_b-5/58607%2C%20issued%20May%2025%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","redaction","FOIA exemptions","public records"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMay 25, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMr. Felix Sarver\nNews Reporter\nThe Herald- News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia. com\n\nVia electronic mail\nMs. Sabrina Spano\nCorporation Counsel\nCity of Joliet\nLegal Department\n150 West Jefferson Street\nJoliet,  Illinois 60432\nsspano@jolietcity. org\n\nRE:  FOIA Request for Review –  2019 PAC 58607;  City FOIA No.: P008202\n\nDear Mr. Sarver and Ms. Spano: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn June 14, 2019,  Mr. Felix Sarver,  on behalf of The Herald-News, submitted a\n\nRequest for Review to the Public Access Bureau disputing the response by the Joliet Police\nDepartment ( Department)  to his June 4, 2019,  FOIA request.   That request sought copies of\npolice reports and complaints related to a named person for the timeframe of January 1, 2017, \nthrough June 4, 2019.   The Department provided a case report and supplemental report\nresponsive to his request,  but redacted portions of the narrative sections of those records pursuant\nto sections 7(1)(b), 7(1)( b-5),7(1)(c),7(1)(d)( iii), and 7(1)(d)(iv) of FOIA. 1\n\n15 ILCS 140/ 7(1)(b), (1)( b-5), (1)(c), (1)(d)( iii), (1)(d)(iv) (West 2018).  \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 2\n\nOn July 3, 2019,  this office requested that the Department provide un-redacted\ncopies of the records at issue for this office' s confidential review,  together with a detailed legal\nand factual explanation of its basis for asserting the above- referenced exemptions.   On July 22, \n2019,  the Department provided the requested materials.   This office forwarded the Department' s\nwritten answer to Mr. Sarver on July 23, 2019;  he did not reply. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2018);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.   5 ILCS 140/ 1.2 (West 2018).   The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 ( 1997).   \n\nThe Department' s answer to this office stated that it redacted from the narrative\nportions of the responsive reports the name and other identifying information,  such as personal\ntelephone numbers and home addresses,  of a victim, witness,  and third-party individuals. 2 The\nDepartment also stated it redacted \" descriptions of specific injuries\" 3 as well as information\nregarding the \" physical or mental status of one or more individual subjects.\" 4\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"  \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) (West 2018))  defines \" private information\"  as\nunique identifiers,\"  including \" home or personal telephone numbers\"  and \" home address.\"   The\nhome addresses and personal telephone numbers that the Department redacted constitute \" private\ninformation\"  under the plain language of section 2(c-5) of FOIA.  However,  the Department\nredacted two telephone numbers on page 6 which appear to belong to Help at Home,  the\ncompany that provided staffing for the group home.   The Public Access Bureau has consistently\ndetermined that phone numbers of businesses are not exempt from disclosure under section\n7(l)(b) because the definition of \"private information\"  is limited to unique identifiers of persons.  \nSee,  for example,  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 48461,  issued December 18, 2017,  at 3-4.  \n\nthis does not appear to be the case based on this office' s confidential review of the unredacted records.   \n\n2Although the Department' s answer indicated it redacted the name a suspect who was not arrested, \n\nAssistant Attorney General,  Office of the Attorney General,  Public Access Bureau ( July 22, 2019).  \n\n3Letter from Sabrina Spano,  Assistant Corporation Counsel,  City of Joliet, to Laura Harter, \n\nAssistant Attorney General,  Office of the Attorney General,  Public Access Bureau ( July 22, 2019).  \n\n4Letter from Sabrina Spano,  Assistant Corporation Counsel,  City of Joliet, to Laura Harter, \n\n\fMr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 3\n\nAccordingly,  if the phone numbers are associated with Help at Home,  rather than a private\nindividual' s personal phone,  they are not exempt from disclosure under section 7(1)(b). \n\nSection 7(1)(b-5) of FOIA exempts from disclosure \"[ f]iles, documents,  and other\ndata or databases maintained by one or more law enforcement agencies and specifically designed\nto provide information to one or more law enforcement agencies regarding the physical or mental\nstatus of one or more individual subjects.\"   By its plain language,  section 7(1)(b-5) applies only\nto information specifically intended to inform law enforcement agencies about the physical or\nmental status of subjects. 5 Although some portions of the narrative sections of the police reports\ncontain information about an individual' s mental or physical health,  there is no indication that\nthis information was included within the report in order to alert other law enforcement officers, \nor members of the public,  about potential dangers resulting from those mental or physical\nconditions that they may encounter when interacting with this individual.   Therefore,  the\nDepartment has not sustained its burden of proof that this information is exempt from disclosure\nunder 7(1)(b-5) of FOIA.  Nonetheless,  this information is exempt from disclosure under section\n7(1)(c), as discussed below. \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy,  unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" 6 The Public Access Bureau has previously determined that\ninformation identifying an individual as having a physical or mental health issue is highly\ninvasion of the\npersonal and the disclosure of such information would cause a substantial\nindividual' s personal privacy.   See, for example,  Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 53479,  issued\nJuly 25, 2018,  at 4; Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 53087,  issued July 11, 2018,  at 4.  Here, \nthe subject has a strong right to privacy in the highly personal\ninformation regarding that person' s\nhealth and welfare documented in the reports.   At the time the Department received Mr. Sarver' s\n\n5The legislative history of section 7(1)(b-5) confirms that it pertains to \" data for law enforcement\nregarding mental and physical disabilities that is maintained for the safety of responding officers and the individuals\nand the public.\"  Remarks of Sen.  Millner,  May 15, 2009,  Senate Debate on House Bill No. 47 ( which,  as Public Act\n96-558,  effective January 1, 2010,  enacted section 7(1)( b-5) of FOIA),  at 59. \n\n6Section 7(1)(c) defines \" unwarranted invasion of personal privacy\"  as: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\nright to privacy outweighs any legitimate public interest in\nobtaining the information.   The disclosure of information that\nbears on the public duties of public employees and officials\nshall not be considered an invasion of personal privacy. \n\n\fMr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 4\n\nrequest,  the underlying incident did not result in any arrests or criminal charges.   Accordingly, \nthis office concludes that the Department did not improperly redact those portions of the\nnarratives pursuant to section 7(1)(c). \n\nIt is not entirely clear to this office, which \" descriptions of specific injuries\" 7 the\n\nDepartment redacted pursuant to section 7(1)(c).  However,  based on this office's confidential\nreview,  the portions of the narrative containing the name of the treating hospital or medical\nfacility do not constitute \" personal\nThis information,  by itself, represents standard nondescript\nperson,  and therefore,  the disclosure would not cause an unwarranted invasion of personal\nprivacy.   See,  for example,  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 37628,  issued April 25, 2016,  at 4. \n\ninformation\"  within the context of section 7(1)(c) of FOIA. \ninformation that could apply to any\n\nSection 7(1)(d)( iv) of FOIA permits a police department to withhold law\n\ninformation furnished only by the confidential source,  or\n\nenforcement records to the extent that disclosure would \" unavoidably disclose the identity of a\nconfidential source,  confidential\npersons who file complaints with or provide information to administrative,  investigative,  law\nenforcement,  or penal agencies[.]\"  This provision allows law enforcement agencies to protect the\nanonymity of persons who provide them with information.   See,  for example,  Chicago Alliance\nfor Neighborhood Safety v. City of Chicago,  348 Ill. App. 3d 188, 200-01 (1st Dist. 2004) ( names\nand addresses of beat meeting participants properly redacted because they provided information\nto police department).   The names of individuals who file complaints with police departments are\ngenerally exempt from disclosure pursuant to section 7(1)(d)( iv).  See,  for example,  Ill. Att'y\nGen.  PAC Req.  Rev.  Ltr. 56481,  issued January 25, 2019.   Further,  the contents of such\nstatements to the police may be withheld if disclosure \" would necessarily result in the disclosure\nof the identity of the source\"  of information and,  therefore, \" redaction * * *  cannot be\nmeaningfully accomplished.\"   Copley Press, Inc. v. City of Springfield,  266 Ill. App 3d 421, 426\n4th Dist. 1994).   The Department' s response to this office stated it redacted the identity and\nother identifying information of the complainant,  witnesses,  and other third parties pursuant to\nthis exemption.  \n\nSection 7(1)(d)( iv) of FOIA permitted the Department\n\nto redact the names, \n\naddresses,  contact information,  and other identifying information of the alleged victim and the\nother individuals who provided the Department with information related to the underlying\nincident.   Additionally,  based on this office's review of the un-redacted portion of the victim' s\nstatement,  we have determined that the identity of this individual could be discerned from the\ncontent even after redaction of that individual' s name.   Given the limited number of sources of\n\nAssistant Attorney General,  Office of the Attorney General,  Public Access Bureau ( July 22, 2019).  \n\n7Letter from Sabrina Spano,  Assistant Corporation Counsel,  City of Joliet, to Laura Harter, \n\n\fr. Felix Sarver\nMs. Sabrina Spano\nMay 25, 2023\nPage 5\n\ninformation and press coverage 8 \" it is readily apparent from an examination of the material in the\nfile that the information provided by each individual\ndisclosure of the identity of that source.\"   Copley Press, Inc., 266 Ill. App. 3d at 426.    \n\ninterviewee would necessarily result in the\n\nIn accordance with the conclusions expressed in this determination,  this office\n\nrequests that the Department provide Mr. Sarver with copies of the non-exempt portions of the\nnarrative sections in the responsive case report and supplemental report,  including the name of\nthe treating hospital and any phone numbers associated with Help at Home.     \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   If you have any questions,  my\ne-mail address is Shannon. Barnaby@ilag. gov.  \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n58607 f 71b proper improper 71b-5 improper 71c proper improper 71div proper pd\n\n8See,  for example,  Plainfield Masked Stabbing Suspect Faces New Aggravated Battery Charges,  \n\nhttps:// www. shawlocal. com/ 2019/ 07/09/ plainfield- masked- stabbing- suspect- faces- new- aggravated- battery-\ncharge/ a3c54kt/  \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and complaints about an individual","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58607/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMay 25, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMr. Felix Sarver\nNews Reporter\nThe Herald- News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia. com\n\nVia electronic mail\nMs. Sabrina Spano\nCorporation Counsel\nCity of Joliet\nLegal Department\n150 West Jefferson Street\nJoliet, Illinois 60432\nsspano@jolietcity. org\n\nRE: FOIA Request for Review – 2019 PAC 58607; City FOIA No.: P008202\n\nDear Mr. Sarver and Ms. Spano: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). \n\nOn June 14, 2019, Mr. Felix Sarver, on behalf of The Herald-News, submitted a\n\nRequest for Review to the Public Access Bureau disputing the response by the Joliet Police\nDepartment (Department) to his June 4, 2019, FOIA request. That request sought copies of\npolice reports and complaints related to a named person for the timeframe of January 1, 2017, \nthrough June 4, 2019. The Department provided a case report and supplemental report\nresponsive to his request, but redacted portions of the narrative sections of those records pursuant\nto sections 7(1)(b), 7(1)(b-5),7(1)(c),7(1)(d)(iii), and 7(1)(d)(iv) of FOIA. 1\n\n15 ILCS 140/ 7(1)(b), (1)(b-5), (1)(c), (1)(d)(iii), (1)(d)(iv) (West 2018). \n\nOn July 3, 2019, this office requested that the Department provide un-redacted\ncopies of the records at issue for this office's confidential review, together with a detailed legal\nand factual explanation of its basis for asserting the above- referenced exemptions. On July 22, \n2019, the Department provided the requested materials. This office forwarded the Department's\nwritten answer to Mr. Sarver on July 23, 2019; he did not reply. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nThe Department's answer to this office stated that it redacted from the narrative\nportions of the responsive reports the name and other identifying information, such as personal\ntelephone numbers and home addresses, of a victim, witness, and third-party individuals. 2 The\nDepartment also stated it redacted \" descriptions of specific injuries\" 3 as well as information\nregarding the \" physical or mental status of one or more individual subjects.\" 4\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) (West 2018)) defines \" private information\" as\nunique identifiers,\" including \" home or personal telephone numbers\" and \" home address.\" The\nhome addresses and personal telephone numbers that the Department redacted constitute \" private\ninformation\" under the plain language of section 2(c-5) of FOIA. However, the Department\nredacted two telephone numbers on page 6 which appear to belong to Help at Home, the\ncompany that provided staffing for the group home. The Public Access Bureau has consistently\ndetermined that phone numbers of businesses are not exempt from disclosure under section\n7(l)(b) because the definition of \"private information\" is limited to unique identifiers of persons. \nSee, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 48461, issued December 18, 2017, at 3-4. \n\nthis does not appear to be the case based on this office's confidential review of the unredacted records. \n\n2 Although the Department's answer indicated it redacted the name a suspect who was not arrested, \n\nAssistant Attorney General, Office of the Attorney General, Public Access Bureau (July 22, 2019). \n\n3 Letter from Sabrina Spano, Assistant Corporation Counsel, City of Joliet, to Laura Harter, \n\nAssistant Attorney General, Office of the Attorney General, Public Access Bureau (July 22, 2019). \n\n4 Letter from Sabrina Spano, Assistant Corporation Counsel, City of Joliet, to Laura Harter, \n\nAccordingly, if the phone numbers are associated with Help at Home, rather than a private\nindividual's personal phone, they are not exempt from disclosure under section 7(1)(b). \n\nSection 7(1)(b-5) of FOIA exempts from disclosure \"[ f]iles, documents, and other\ndata or databases maintained by one or more law enforcement agencies and specifically designed\nto provide information to one or more law enforcement agencies regarding the physical or mental\nstatus of one or more individual subjects.\" By its plain language, section 7(1)(b-5) applies only\nto information specifically intended to inform law enforcement agencies about the physical or\nmental status of subjects. 5 Although some portions of the narrative sections of the police reports\ncontain information about an individual's mental or physical health, there is no indication that\nthis information was included within the report in order to alert other law enforcement officers, \nor members of the public, about potential dangers resulting from those mental or physical\nconditions that they may encounter when interacting with this individual. Therefore, the\nDepartment has not sustained its burden of proof that this information is exempt from disclosure\nunder 7(1)(b-5) of FOIA. Nonetheless, this information is exempt from disclosure under section\n7(1)(c), as discussed below. \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" 6 The Public Access Bureau has previously determined that\ninformation identifying an individual as having a physical or mental health issue is highly\ninvasion of the\npersonal and the disclosure of such information would cause a substantial\nindividual's personal privacy. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 53479, issued\nJuly 25, 2018, at 4; Ill. Att'y Gen. PAC Req. Rev. Ltr. 53087, issued July 11, 2018, at 4. Here, \nthe subject has a strong right to privacy in the highly personal\ninformation regarding that person's\nhealth and welfare documented in the reports. At the time the Department received Mr. Sarver's\n\n5 The legislative history of section 7(1)(b-5) confirms that it pertains to \" data for law enforcement\nregarding mental and physical disabilities that is maintained for the safety of responding officers and the individuals\nand the public.\" Remarks of Sen. Millner, May 15, 2009, Senate Debate on House Bill No. 47 (which, as Public Act\n96-558, effective January 1, 2010, enacted section 7(1)(b-5) of FOIA), at 59. \n\n6 Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" as: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\n\nrequest, the underlying incident did not result in any arrests or criminal charges. Accordingly, \nthis office concludes that the Department did not improperly redact those portions of the\nnarratives pursuant to section 7(1)(c). \n\nIt is not entirely clear to this office, which \" descriptions of specific injuries\" 7 the\n\nDepartment redacted pursuant to section 7(1)(c). However, based on this office's confidential\nreview, the portions of the narrative containing the name of the treating hospital or medical\nfacility do not constitute \" personal\nThis information, by itself, represents standard nondescript\nperson, and therefore, the disclosure would not cause an unwarranted invasion of personal\nprivacy. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 37628, issued April 25, 2016, at 4. \n\ninformation\" within the context of section 7(1)(c) of FOIA. \ninformation that could apply to any\n\nSection 7(1)(d)(iv) of FOIA permits a police department to withhold law\n\ninformation furnished only by the confidential source, or\n\nenforcement records to the extent that disclosure would \" unavoidably disclose the identity of a\nconfidential source, confidential\npersons who file complaints with or provide information to administrative, investigative, law\nenforcement, or penal agencies[.]\" This provision allows law enforcement agencies to protect the\nanonymity of persons who provide them with information. See, for example, Chicago Alliance\nfor Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200-01 (1st Dist. 2004) (names\nand addresses of beat meeting participants properly redacted because they provided information\nto police department). The names of individuals who file complaints with police departments are\ngenerally exempt from disclosure pursuant to section 7(1)(d)(iv). See, for example, Ill. Att'y\nGen. PAC Req. Rev. Ltr. 56481, issued January 25, 2019. Further, the contents of such\nstatements to the police may be withheld if disclosure \" would necessarily result in the disclosure\nof the identity of the source\" of information and, therefore, \" redaction * * * cannot be\nmeaningfully accomplished.\" Copley Press, Inc. v. City of Springfield, 266 Ill. App 3d 421, 426\n4th Dist. 1994). The Department's response to this office stated it redacted the identity and\nother identifying information of the complainant, witnesses, and other third parties pursuant to\nthis exemption. \n\nSection 7(1)(d)(iv) of FOIA permitted the Department\n\nto redact the names, \n\naddresses, contact information, and other identifying information of the alleged victim and the\nother individuals who provided the Department with information related to the underlying\nincident. Additionally, based on this office's review of the un-redacted portion of the victim's\nstatement, we have determined that the identity of this individual could be discerned from the\ncontent even after redaction of that individual's name. Given the limited number of sources of\n\nAssistant Attorney General, Office of the Attorney General, Public Access Bureau (July 22, 2019). \n\n7 Letter from Sabrina Spano, Assistant Corporation Counsel, City of Joliet, to Laura Harter, \n\ninformation and press coverage 8 \" it is readily apparent from an examination of the material in the\nfile that the information provided by each individual\ndisclosure of the identity of that source.\" Copley Press, Inc., 266 Ill. App. 3d at 426. \n\ninterviewee would necessarily result in the\n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Department provide Mr. Sarver with copies of the non-exempt portions of the\nnarrative sections in the responsive case report and supplemental report, including the name of\nthe treating hospital and any phone numbers associated with Help at Home. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon. Barnaby@ilag. gov. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n58607 f 71b proper improper 71b-5 improper 71c proper improper 71div proper pd\n\n8 See, for example, Plainfield Masked Stabbing Suspect Faces New Aggravated Battery Charges, \n\nhttps:// www. shawlocal. com/ 2019/ 07/09/ plainfield- masked- stabbing- suspect- faces- new- aggravated- battery-\ncharge/ a3c54kt/"}
{"id":940,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-11","case_number":null,"request_numbers":["58746"],"title":"Geneva SD 304 violated FOIA by withholding school calendar communications","filename":"58746, issued September 11, 2023.pdf","rel_path":null,"word_count":3031,"summary":"The requester sought communications between school district officials and community members regarding school calendar adjustments, and the PAC determined the District violated FOIA by failing to properly redact private information and by improperly withholding records under exemptions.","plain_summary":"A requester asked for emails and records from community members about making up school days lost during a strike. The Illinois Attorney General's Public Access Bureau determined that the school district violated FOIA by improperly withholding the records under exemptions for collective bargaining matters. The decision found that the communications did not reveal aspects of the collective bargaining process and were not exempt from disclosure.","holding":"The Geneva Community Unit School District No. 304 violated FOIA by improperly denying the request under sections 7(1)(f) and 7(1)(p).","legal_question":"Whether the District properly applied FOIA exemptions and redaction requirements for private information when responding to a request for communications regarding school calendar adjustments.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Geneva Community Unit School District No. 304","requesting_party":"Mr. Kevin Gannon (on behalf of the Geneva Education Association)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"school records","subject_description":"Communications between school district administrators/board members and community members regarding the scheduling of make-up school days.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_p/58746%2C%20issued%20September%2011%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school district","email records","private information","FOIA redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 11, 2023\n\nVia electronic mail\nMs. Rachel E. Clark\nAssociate General Counsel\nIllinois Education Association\n[street address redacted for site publication -- see original PDF]\nrachel. clark@ieanea. org\n\nVia electronic mail\nMs. Sandy Manisco\nCommunications Coordinator\nGeneva Community Unit School District No. 304\n227 North Fourth Street\nGeneva,  Illinois 60134\ngenfoia@geneva304. org\n\nRE:  FOIA Request for Review –  2019 PAC 58746\n\nDear Ms. Clark and Ms. Manisco: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons that follow, the\nPublic Access Bureau concludes that the response by Geneva Community Unit School District\nNo. 304 ( District)  to Mr. Kevin Gannon' s May 13, 2019,  FOIA request violated the requirements\nof FOIA. \n\nOn that date,  Mr. Gannon,  on behalf of the Geneva Education Association, \n\nsubmitted a FOIA request to the District seeking: \n\ni]nformation,  including but not limited to, e-mails,  voice mail\nrecordings,  and the contents of conversations between parents or\ncommunity members in Geneva School District 304 and district\nadministrators and/ or school board members related to making up\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 2\n\nthe four school days during which the Geneva Education\nAssociation was on strike.  Please supply any information received\nby the district,  school board members,  or administrators between\nNovember 15, 2018 and December 31, 2018.[ 1] \n\nOn May 20, 2019,  the District denied Mr. Gannon' s request in its entirety pursuant to sections\n7(1)(f) and 7(1)( p) of FOIA ( 5 ILCS 140/ 7(1)( f), (1)(p) (West 2018)).   On June 28, 2019,  Ms. \nRachel Clark of the Illinois Education Association,  on behalf of the Geneva Education\nAssociation,  submitted this Request for Review challenging the District's denial. \n\nOn July 8, 2019,  this office sent a copy of the Request for Review to the District\n\nand asked it to provide un-redacted copies of the records responsive to Mr. Gannon' s FOIA\nrequest,  together with a detailed explanation of the legal and factual bases for its denial.   On\nAugust 1, 2019,  the District submitted the requested materials.   On August 2, 2019,  this office\nforwarded the District' s answer to Ms. Clark;  she did not submit a substantive reply. \n\nIn its answer to this office, the District provided the following background\n\ninformation: \n\nThe School District and the GEA [ Geneva Education\nAssociation]  were parties to a collective bargaining agreement that\nexpired on August 14, 2018.  Toward the end of the 2017- 2018\nschool year,  the two parties began negotiating a successor\nagreement to their 2015- 2018 collective bargaining agreement. \nNegotiations broke down and the GEA declared a strike in\nDecember 2018.   The strike lasted a total of five school/ working\ndays between Tuesday,  December 4, 2018 and Monday,  December\n10, 2018.   Teachers returned to the classroom on Tuesday, \nDecember 11, 2018. \n\nWith the School District' s teachers[ ]  having gone on strike, \n\nthe issue of \"making up\"  the five student attendance days lost\nbecause of the strike was bargained between the School District\nand the GEA.  Ultimately the School District and GEA settled the\nstrike with an agreement\nwould be made up.  At some point during negotiations over this\nissue,  the School District' s bargaining representatives informed the\n\ntha[ t] only one of the five strike days\n\nNo. 304,  to Laura Sprague ( May 13, 2019). \n\n1E- mail from Kevin Gannon,  Science Department Chair,  Geneva Community High School District\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 3\n\nGEA that the School District’ s position to make up only one day\nwas rooted in part by feedback it had received from community\nmembers about the make- up day issue.[ 2] \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2018);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006).   Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.   5 ILCS 140/ 1.2 (West 2018).   The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 ( 1997).   \n\nSection 9.5(a) of FOIA\n\nAs a threshold matter,  section 9.5(a) of FOIA 3 provides that a person whose\n\nFOIA request is denied may filed a Request for Review \" not later than 60 days after the date of\nthe final denial.\"   The District' s response to this office asserted that Ms. Clark's Request for\nReview was untimely because on April 9, 2019,  the District denied pursuant to section 7(1)(f) \nand 7(1)(p) an earlier request that included the same records and the Geneva Education\nAssociation \" slept on its rights[ ]\" 4 by failing to file a Request for Review within 60 days of that\ndenial.   Consequently,  the District contends that the Public Access Counselor lacks jurisdiction\nto review the denial of the second FOIA request and that it must be considered an unduly\nburdensome repeated request for records that previously were properly denied. 5 5 ILCS 140/ 3(g) \nWest 2018). \n\nThe District,  however,  did not deny the FOIA request at issue in this matter\n\npursuant to section 3(g) of FOIA.  Even if it had,  the District would have to prove by clear and\n\nBureau Chief,  Public Access Bureau,  Office of the Illinois Attorney General ( August 1, 2019),  at 4. \n\n2Letter from James A. Petrungaro,  Scariano,  Himes and Petrarca,  to Laura S. Harter,  Deputy\n\n35 ILCS 140/ 9.5(a) ( West 2018). \n\n4Letter from James A. Petrungaro,  Scariano,  Himes and Petrarca,  Chtd.,  to Laura S. Harter, \nDeputy Bureau Chief, Public Access Bureau,  Office of the Attorney General ( August 1, 2019),  at 2. \n\n5Section 3(g) of FOIA provides,  in relevant part:  \" Repeated requests from the same person for the\n\nsame records that are unchanged or identical to records previously provided or properly denied under this Act shall\nbe deemed unduly burdensome under this provision.\" \n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 4\n\nconvincing evidence that it properly denied the earlier request pursuant to sections 7(1)(f) and\n7(1)(p) in order to establish the subsequent request was properly denied as an unduly\nburdensome repeated request.   The Attorney General has issued a binding opinion concluding\nthat \" no language in FOIA states that a person whose FOIA request was denied as an unduly\nburdensome repeated request may not submit a Request for Review to the Public Access\nCounselor unless he or she submitted a Request for Review of the denial of the previous request, \nnor does FOIA state that this office may not review whether such a denial was proper.\"   Ill. Att'y\nGen.  Pub.  Acc. Op. No. 18-007, issued June 26, 2028,  at 6.  Because Ms. Clark submitted her\nRequest for Review within 60 days of the District' s May 20, 2019,  denial of the Geneva\nEducation Association' s May 13, 2019,  FOIA request,  section 9.5(a) of FOIA authorizes the\nPublic Access Counselor to review that denial. \n\nSection 7(1)(p) of FOIA\n\nSection 7(1)(p) of FOIA exempts from disclosure \"[ r]ecords relating to collective\n\nnegotiating matters between public bodies and their employees or representatives,  except that\nany final contract or agreement shall be subject to inspection and copying.\"   The term \" relating\nto\" in a FOIA exemption does not signify an expansive scope.   See Kalven v. City of Chicago, \n2014 IL App (1st)  121846, ¶ 19, 7 N.E.3d 741, 746- 47 (2014) ( rejecting the contention that the\nsection 7(1)(n) exemption ( 5 ILCS 140/ 7(1)( n) (West 2010))  for records \" relating to a public\nbody's adjudication of employee grievances or disciplinary cases\"  encompasses investigatory\nrecords that precede disciplinary adjudications because such an \" expansive interpretation\"  would\nrender a broad category of public documents immune [ citation]  to public scrutiny.   That is\ncontrary to the intent of FOIA.\");  see also Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 32159,  issued April\n20, 2015,  at 3 (concluding that because almost every record in possession of the Illinois\nDepartment of Corrections arguably relates to security in some manner,  section 7(1)(e) of FOIA 6\napplies to records that could jeopardize the security of a correctional\nrather than any records merely pertaining to security in any manner whatsoever.\"). \n\ninstitution if disclosed, \n\nThe Attorney General has issued a binding opinion addressing the applicability of\n\nsection 7(1)(p) to invoices for legal services containing information related to collective\nbargaining matters.   Ill. Att'y Gen.  Pub.  Acc. Op. No. 14-002, issued April 15, 2014.   The\nAttorney General examined the exception,  to the general requirement\nthat public bodies conduct\npublic business openly,  for collective negotiating matters in the Open Meetings Act 7 and noted:  \nSection 7(1)( p) of FOIA serves the corollary purpose of exempting from disclosure records\n\nthat relate to or affect the security of correctional\n\ninstitutions and detention facilities.\" \n\n6Section 7(1)(e) of FOIA ( 5 ILCS 140/ 7(1)(e) ( West 2018))  exempts from disclosure \"[ r]ecords\n\n75 ILCS 120/ 2(c)(2) (West 2018). \n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 5\n\npertaining to such aspects of the collective bargaining process as the negotiating of wages and\nsalaries,  terms and conditions of employment,  working conditions,  and similar matters which are\nsubject to collective bargaining.\"   Ill. Att'y Gen.  Pub.  Acc. Op. No. 14-002,  at 6.  The Attorney\nGeneral concluded that only the portions of the invoices that contained specific information\npertaining to the collective bargaining process could be redacted pursuant to section 7(1)(p).  Ill. \nAtt'y Gen.  Pub.  Acc. Op. No. 14-002, at 9.  Thus,  records must reveal aspects of a collective\nbargaining process to fall within the scope of the exemption. \n\nThe District withheld seven e-mails and one voicemail received from members of\nthe community expressing opinions concerning whether and how the District should make up the\ndays of school that were missed when the Geneva Education Association was on strike.   In its\nanswer to this office, the District argued that the communications related to collective bargaining\nbecause they were mostly sent during the strike and were \" aimed at influencing the School\nDistrict negotiations team and school board concerning settling the strike and the issue of the\nmake- up days.\" 8 The District also asserted that \" the records were created and submitted to the\nSchool District entirely because of the collective bargaining going on between the School\nDistrict and the GEA.  The records exist only because of the ongoing labor dispute and\nnegotiations.\" 9 The District argued that the communications were part of its \" negotiations team' s\nanalysis,  motivation,  bargaining strategy,  and deliberative process related to the ongoing labor\nstrike and negotiations.\" 10\n\nAlthough the withheld communications reference a matter raised by the collective\n\nbargaining dispute,  they do not reveal aspects of the collective bargaining process itself.  The\ncommunications were not from individuals involved in the negotiations,  but rather from third-\nparties who were not privy to the private strategizing or negotiating involved in the collective\nbargaining process.   Stretching the section 7(1)(p) exemption to include unsolicited\ncommunications from members of the public who did not participate in the collective bargaining\nprocess would be contrary to the requirement\n176 Ill. 2d at 40.  Accordingly,  this office concludes that the communications are not exempt\npursuant to section 7(1)(p). \n\nto construe FOIA exemptions narrowly.   Lieber, \n\nBureau Chief, Public Access Bureau,  Office of the Illinois Attorney General ( August 1, 2019),  at 4. \n\n8Letter from James A. Petrungaro,  Scariano,  Himes and Petrarca,  to Laura S. Harter,  Deputy\n\nBureau Chief, Public Access Bureau,  Office of the Illinois Attorney General ( August 1, 2019),  at 4. \n\n9Letter from James A. Petrungaro,  Scariano,  Himes and Petrarca,  to Laura S. Harter,  Deputy\n\nBureau Chief,  Public Access Bureau,  Office of the Illinois Attorney General ( August 1, 2019),  at 4. \n\n10Letter from James A. Petrungaro,  Scariano,  Himes and Petrarca,  to Laura S. Harter,  Deputy\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 6\n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) exempts from inspection and copying \"[ p] reliminary drafts,  notes, \nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"   The\nsection 7(1)(f) exemption applies to \"inter-  and intra- agency predecisional and deliberative\nmaterial.\"   Harwood v. McDonough,  344 Ill. App. 3d 242, 247 ( 1st Dist. 2003).   A public body\nthat asserts the deliberative process exemption \" has the burden of establishing what deliberative\nprocess is involved,  and the role played by the documents in issue in the course of that process.\"  \nCoastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 ( D.C. Cir 1980).\"   The\nsection 7(1)(f) exemption is \" intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\"   Harwood, \n344 Ill. App. 3d at 248. \n\nThe scope of section 7(1)( f) does not encompass a public body's communications\nwith third parties unless they represent the public body or otherwise do not have any independent\ninterests in the subject of the communications.   See,  for example,  Department of Interior v. \nKlamath Water Users Protective Ass'n, 532 U.S. 1, 13, 121 S. Ct. 1060,  1069 ( 2001) \ncommunications with third parties that have independent\nthe public body's final decision cannot be characterized as intra- agency communications under\nthe exemption for deliberative material in the federal FOIA);  Ill. Att'y Gen.  Pub.  Acc. Op. No. \n21-004, issued May 24, 2021 ( correspondence shared with third party constituent who represents\nindependent\n\ninterests is not part of public body's deliberative process). \n\ninterests and that stand to benefit from\n\nIn its response to this office, the District argued that it relied on the withheld\ncommunications as part of its bargaining strategy.   Acknowledging that the communications\nwere sent by third- parties,  the District nevertheless asserted that \"[ u] nlike communications with a\nthird party representing ' independent\noutside the exemption [ citation],  the subject records here are from the very taxpayer constituents\nand parents of students[ ]  whose interests the School District' s administration and school board\nare charged with representing.\" 11\n\ninterests'  of the public body that have been held to be\n\nThe withheld communications express a variety of opinions from members of the\npublic on how the District should handle the make- up days.   The opinions in the records are the\ncommunity members',  not the District' s.  The submissions reflect the community members'  own\ninterests,  as they stood to benefit from the District' s decisions on the make- up days.   Further,  the\n\nBureau Chief,  Public Access Bureau,  Office of the Illinois Attorney General ( August 1, 2019),  at 5. \n\n11Letter from James A. Petrungaro,  Scariano,  Himes and Petrarca,  to Laura S. Harter,  Deputy\n\n\fMs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 7\n\ncommunications were unsolicited and were not created at the request of the District as part of a\ndeliberative process.   Although the District may have discussed the communications while\nstrategizing or during negotiations,  the withheld records themselves do not reflect any intra-\nagency or inter- agency discussion of the make- up days.   Because the communications do not\nconstitute inter-  or intra- agency,  pre-decisional deliberative materials,  the District improperly\nwithheld those records pursuant to section 7(1)(f) of FOIA.   \n\nIn accordance with this determination,  this office requests that the District provide\n\nMr. Gannon with copies of the withheld responsive 12 communications,  with appropriate\nredactions of private information pursuant to section 7(1)(b) of FOIA. 13 Any additional\ninformation such as names,  job titles, and business contact information that could be used to\npersonally identify members of the public who sent the communications also may be redacted\npursuant to section 7(1)(c), which exempts from disclosure highly personal\nwould constitute a clearly unwarranted invasion of personal privacy if disclosed.   State Journal\nRegister v. University of Illinois Springfield,  2013 IL App (4th) 120881, ¶¶ 65-66, 994 N.E.2d\n705, 720 ( 2013) ( recognizing that students and parents have \" a privacy interest in being able to\nprivately express    * * *  opinions and concerns to\"  a university and holding that the university\nmay redact a student' s name from an e-mail pursuant to section 7(1)(c) but must disclose the\nremaining portions \" because nothing in the content of the e-mail, other than the student' s name, \nidentifies the student.\"). \n\ninformation that\n\nThe responsive records include the voice message and pages 8-14 of Exhibit A. \n\n12In its response to this office, the District provided a number of records that are non-responsive.  \n\n135 ILCS 140/7(1)(b) (West 2022),  as amended by Public Acts 103-154, effective June 30, 2023; \n103- 462, effective August 4, 2023;  103- 446,  effective August 4, 2023.   Section 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) \nWest 2022))  defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number,  driver's license\nnumber,  employee identification number,  biometric identifiers,  personal\nfinancial information,  passwords or other access codes,  medical records,  home\nor personal telephone numbers,  and personal email addresses.  Private\ninformation also includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\nlicense plates,  except as\n\n\fs. Rachel E. Clark\nMs. Sandy Manisco\nSeptember 11, 2023\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n58746 f 71p improper 71f improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Communications about scheduling make-up school days","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-58746/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 11, 2023\n\nVia electronic mail\nMs. Rachel E. Clark\nAssociate General Counsel\nIllinois Education Association\n[street address redacted for site publication -- see original PDF]\nrachel. clark@ieanea. org\n\nVia electronic mail\nMs. Sandy Manisco\nCommunications Coordinator\nGeneva Community Unit School District No. 304\n227 North Fourth Street\nGeneva, Illinois 60134\ngenfoia@geneva304. org\n\nRE: FOIA Request for Review – 2019 PAC 58746\n\nDear Ms. Clark and Ms. Manisco: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by Geneva Community Unit School District\nNo. 304 (District) to Mr. Kevin Gannon's May 13, 2019, FOIA request violated the requirements\nof FOIA. \n\nOn that date, Mr. Gannon, on behalf of the Geneva Education Association, \n\nsubmitted a FOIA request to the District seeking: \n\ni]nformation, including but not limited to, e-mails, voice mail\nrecordings, and the contents of conversations between parents or\ncommunity members in Geneva School District 304 and district\nadministrators and/ or school board members related to making up\n\nthe four school days during which the Geneva Education\nAssociation was on strike. Please supply any information received\nby the district, school board members, or administrators between\nNovember 15, 2018 and December 31, 2018.[ 1] \n\nOn May 20, 2019, the District denied Mr. Gannon's request in its entirety pursuant to sections\n7(1)(f) and 7(1)(p) of FOIA (5 ILCS 140/ 7(1)(f), (1)(p) (West 2018)). On June 28, 2019, Ms. \nRachel Clark of the Illinois Education Association, on behalf of the Geneva Education\nAssociation, submitted this Request for Review challenging the District's denial. \n\nOn July 8, 2019, this office sent a copy of the Request for Review to the District\n\nand asked it to provide un-redacted copies of the records responsive to Mr. Gannon's FOIA\nrequest, together with a detailed explanation of the legal and factual bases for its denial. On\nAugust 1, 2019, the District submitted the requested materials. On August 2, 2019, this office\nforwarded the District's answer to Ms. Clark; she did not submit a substantive reply. \n\nIn its answer to this office, the District provided the following background\n\ninformation: \n\nThe School District and the GEA [ Geneva Education\nAssociation] were parties to a collective bargaining agreement that\nexpired on August 14, 2018. Toward the end of the 2017- 2018\nschool year, the two parties began negotiating a successor\nagreement to their 2015- 2018 collective bargaining agreement. \nNegotiations broke down and the GEA declared a strike in\nDecember 2018. The strike lasted a total of five school/ working\ndays between Tuesday, December 4, 2018 and Monday, December\n10, 2018. Teachers returned to the classroom on Tuesday, \nDecember 11, 2018. \n\nWith the School District's teachers[ ] having gone on strike, \n\nthe issue of \"making up\" the five student attendance days lost\nbecause of the strike was bargained between the School District\nand the GEA. Ultimately the School District and GEA settled the\nstrike with an agreement\nwould be made up. At some point during negotiations over this\nissue, the School District's bargaining representatives informed the\n\ntha[ t] only one of the five strike days\n\nNo. 304, to Laura Sprague (May 13, 2019). \n\n1E- mail from Kevin Gannon, Science Department Chair, Geneva Community High School District\n\nGEA that the School District’ s position to make up only one day\nwas rooted in part by feedback it had received from community\nmembers about the make- up day issue.[ 2] \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2018); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 9.5(a) of FOIA\n\nAs a threshold matter, section 9.5(a) of FOIA 3 provides that a person whose\n\nFOIA request is denied may filed a Request for Review \" not later than 60 days after the date of\nthe final denial.\" The District's response to this office asserted that Ms. Clark's Request for\nReview was untimely because on April 9, 2019, the District denied pursuant to section 7(1)(f) \nand 7(1)(p) an earlier request that included the same records and the Geneva Education\nAssociation \" slept on its rights[ ]\" 4 by failing to file a Request for Review within 60 days of that\ndenial. Consequently, the District contends that the Public Access Counselor lacks jurisdiction\nto review the denial of the second FOIA request and that it must be considered an unduly\nburdensome repeated request for records that previously were properly denied. 5 5 ILCS 140/ 3(g) \nWest 2018). \n\nThe District, however, did not deny the FOIA request at issue in this matter\n\npursuant to section 3(g) of FOIA. Even if it had, the District would have to prove by clear and\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General (August 1, 2019), at 4. \n\n2 Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\n35 ILCS 140/ 9.5(a) (West 2018). \n\n4 Letter from James A. Petrungaro, Scariano, Himes and Petrarca, Chtd., to Laura S. Harter, \nDeputy Bureau Chief, Public Access Bureau, Office of the Attorney General (August 1, 2019), at 2. \n\n5 Section 3(g) of FOIA provides, in relevant part: \" Repeated requests from the same person for the\n\nsame records that are unchanged or identical to records previously provided or properly denied under this Act shall\n\nconvincing evidence that it properly denied the earlier request pursuant to sections 7(1)(f) and\n7(1)(p) in order to establish the subsequent request was properly denied as an unduly\nburdensome repeated request. The Attorney General has issued a binding opinion concluding\nthat \" no language in FOIA states that a person whose FOIA request was denied as an unduly\nburdensome repeated request may not submit a Request for Review to the Public Access\nCounselor unless he or she submitted a Request for Review of the denial of the previous request, \nnor does FOIA state that this office may not review whether such a denial was proper.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 18-007, issued June 26, 2028, at 6. Because Ms. Clark submitted her\nRequest for Review within 60 days of the District's May 20, 2019, denial of the Geneva\nEducation Association's May 13, 2019, FOIA request, section 9.5(a) of FOIA authorizes the\nPublic Access Counselor to review that denial. \n\nSection 7(1)(p) of FOIA\n\nSection 7(1)(p) of FOIA exempts from disclosure \"[ r]ecords relating to collective\n\nnegotiating matters between public bodies and their employees or representatives, except that\nany final contract or agreement shall be subject to inspection and copying.\" The term \" relating\nto\" in a FOIA exemption does not signify an expansive scope. See Kalven v. City of Chicago, \n2014 IL App (1st) 121846, ¶ 19, 7 N.E.3d 741, 746- 47 (2014) (rejecting the contention that the\nsection 7(1)(n) exemption (5 ILCS 140/ 7(1)(n) (West 2010)) for records \" relating to a public\nbody's adjudication of employee grievances or disciplinary cases\" encompasses investigatory\nrecords that precede disciplinary adjudications because such an \" expansive interpretation\" would\nrender a broad category of public documents immune [ citation] to public scrutiny. That is\ncontrary to the intent of FOIA.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 32159, issued April\n20, 2015, at 3 (concluding that because almost every record in possession of the Illinois\nDepartment of Corrections arguably relates to security in some manner, section 7(1)(e) of FOIA 6\napplies to records that could jeopardize the security of a correctional\nrather than any records merely pertaining to security in any manner whatsoever.\"). \n\ninstitution if disclosed, \n\nThe Attorney General has issued a binding opinion addressing the applicability of\n\nsection 7(1)(p) to invoices for legal services containing information related to collective\nbargaining matters. Ill. Att'y Gen. Pub. Acc. Op. No. 14-002, issued April 15, 2014. The\nAttorney General examined the exception, to the general requirement\nthat public bodies conduct\npublic business openly, for collective negotiating matters in the Open Meetings Act 7 and noted: \nSection 7(1)(p) of FOIA serves the corollary purpose of exempting from disclosure records\n\nthat relate to or affect the security of correctional\n\ninstitutions and detention facilities.\" \n\n6 Section 7(1)(e) of FOIA (5 ILCS 140/ 7(1)(e) (West 2018)) exempts from disclosure \"[ r]ecords\n\npertaining to such aspects of the collective bargaining process as the negotiating of wages and\nsalaries, terms and conditions of employment, working conditions, and similar matters which are\nsubject to collective bargaining.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14-002, at 6. The Attorney\nGeneral concluded that only the portions of the invoices that contained specific information\npertaining to the collective bargaining process could be redacted pursuant to section 7(1)(p). Ill. \nAtt'y Gen. Pub. Acc. Op. No. 14-002, at 9. Thus, records must reveal aspects of a collective\nbargaining process to fall within the scope of the exemption. \n\nThe District withheld seven e-mails and one voicemail received from members of\nthe community expressing opinions concerning whether and how the District should make up the\ndays of school that were missed when the Geneva Education Association was on strike. In its\nanswer to this office, the District argued that the communications related to collective bargaining\nbecause they were mostly sent during the strike and were \" aimed at influencing the School\nDistrict negotiations team and school board concerning settling the strike and the issue of the\nmake- up days.\" 8 The District also asserted that \" the records were created and submitted to the\nSchool District entirely because of the collective bargaining going on between the School\nDistrict and the GEA. The records exist only because of the ongoing labor dispute and\nnegotiations.\" 9 The District argued that the communications were part of its \" negotiations team's\nanalysis, motivation, bargaining strategy, and deliberative process related to the ongoing labor\nstrike and negotiations.\" 10\n\nAlthough the withheld communications reference a matter raised by the collective\n\nbargaining dispute, they do not reveal aspects of the collective bargaining process itself. The\ncommunications were not from individuals involved in the negotiations, but rather from third-\nparties who were not privy to the private strategizing or negotiating involved in the collective\nbargaining process. Stretching the section 7(1)(p) exemption to include unsolicited\ncommunications from members of the public who did not participate in the collective bargaining\nprocess would be contrary to the requirement\n176 Ill. 2d at 40. Accordingly, this office concludes that the communications are not exempt\npursuant to section 7(1)(p). \n\nto construe FOIA exemptions narrowly. Lieber, \n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General (August 1, 2019), at 4. \n\n8 Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General (August 1, 2019), at 4. \n\n9 Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General (August 1, 2019), at 4. \n\n10 Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) exempts from inspection and copying \"[ p] reliminary drafts, notes, \nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \"inter- and intra- agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). A public body\nthat asserts the deliberative process exemption \" has the burden of establishing what deliberative\nprocess is involved, and the role played by the documents in issue in the course of that process.\" \nCoastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir 1980).\" The\nsection 7(1)(f) exemption is \" intended to protect the communications process and encourage\nfrank and open discussion among agency employees before a final decision is made.\" Harwood, \n344 Ill. App. 3d at 248. \n\nThe scope of section 7(1)(f) does not encompass a public body's communications\nwith third parties unless they represent the public body or otherwise do not have any independent\ninterests in the subject of the communications. See, for example, Department of Interior v. \nKlamath Water Users Protective Ass'n, 532 U.S. 1, 13, 121 S. Ct. 1060, 1069 (2001) \ncommunications with third parties that have independent\nthe public body's final decision cannot be characterized as intra- agency communications under\nthe exemption for deliberative material in the federal FOIA); Ill. Att'y Gen. Pub. Acc. Op. No. \n21-004, issued May 24, 2021 (correspondence shared with third party constituent who represents\nindependent\n\ninterests is not part of public body's deliberative process). \n\ninterests and that stand to benefit from\n\nIn its response to this office, the District argued that it relied on the withheld\ncommunications as part of its bargaining strategy. Acknowledging that the communications\nwere sent by third- parties, the District nevertheless asserted that \"[ u] nlike communications with a\nthird party representing ' independent\noutside the exemption [ citation], the subject records here are from the very taxpayer constituents\nand parents of students[ ] whose interests the School District's administration and school board\nare charged with representing.\" 11\n\ninterests' of the public body that have been held to be\n\nThe withheld communications express a variety of opinions from members of the\npublic on how the District should handle the make- up days. The opinions in the records are the\ncommunity members', not the District's. The submissions reflect the community members' own\ninterests, as they stood to benefit from the District's decisions on the make- up days. Further, the\n\nBureau Chief, Public Access Bureau, Office of the Illinois Attorney General (August 1, 2019), at 5. \n\n11 Letter from James A. Petrungaro, Scariano, Himes and Petrarca, to Laura S. Harter, Deputy\n\ncommunications were unsolicited and were not created at the request of the District as part of a\ndeliberative process. Although the District may have discussed the communications while\nstrategizing or during negotiations, the withheld records themselves do not reflect any intra-\nagency or inter- agency discussion of the make- up days. Because the communications do not\nconstitute inter- or intra- agency, pre-decisional deliberative materials, the District improperly\nwithheld those records pursuant to section 7(1)(f) of FOIA. \n\nIn accordance with this determination, this office requests that the District provide\n\nMr. Gannon with copies of the withheld responsive 12 communications, with appropriate\nredactions of private information pursuant to section 7(1)(b) of FOIA. 13 Any additional\ninformation such as names, job titles, and business contact information that could be used to\npersonally identify members of the public who sent the communications also may be redacted\npursuant to section 7(1)(c), which exempts from disclosure highly personal\nwould constitute a clearly unwarranted invasion of personal privacy if disclosed. State Journal\nRegister v. University of Illinois Springfield, 2013 IL App (4th) 120881, ¶¶ 65-66, 994 N.E.2d\n705, 720 (2013) (recognizing that students and parents have \" a privacy interest in being able to\nprivately express * * * opinions and concerns to\" a university and holding that the university\nmay redact a student's name from an e-mail pursuant to section 7(1)(c) but must disclose the\nremaining portions \" because nothing in the content of the e-mail, other than the student's name, \nidentifies the student.\"). \n\ninformation that\n\nThe responsive records include the voice message and pages 8-14 of Exhibit A. \n\n12 In its response to this office, the District provided a number of records that are non-responsive. \n\n135 ILCS 140/7(1)(b) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; \n103- 462, effective August 4, 2023; 103- 446, effective August 4, 2023. Section 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) \nWest 2022)) defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n58746 f 71p improper 71f improper sd"}
{"id":941,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-16","case_number":null,"request_numbers":["59166"],"title":"Calumet Memorial Park District violated FOIA by failing to conduct reasonable search","filename":"59166, issued January 16, 2020.pdf","rel_path":null,"word_count":3366,"summary":"The requester sought records regarding communications between Park District officials, and the PAC determined that the Calumet Memorial Park District failed to conduct an adequate search for responsive records.","plain_summary":"Mr. Patton requested text messages from a commissioner's phone from the Calumet Memorial Park District. The Illinois Attorney General's Public Access Bureau determined that the District failed to conduct a reasonable search for records responsive to his FOIA request. The Bureau concluded that the District's arguments about the form of the request and the definition of public records were not valid, but the document does not state that the District was ordered to conduct a new search or provide a specific remedy.","holding":"The Calumet Memorial Park District violated FOIA by failing to conduct a reasonable search for records responsive to the requester's FOIA request.","legal_question":"Whether the Calumet Memorial Park District satisfied its obligation under FOIA to conduct an adequate search for records responsive to a request.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7"],"public_body":"Calumet Memorial Park District","requesting_party":"J. R. Patton","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought communications and records held by Park District officials regarding District business.","ocr_status":"ok","ocr_quality":90.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/59166%2C%20issued%20January%2016%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","FOIA request","public records","government transparency"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nJanuary 16,  2020\n\nVia electronic mail\n\nThe Honorable J. R.  Patton\n\nAlderman\n\nCity of Calumet City\n\nVia electronic mail\n\nMr.  McStephen O. A.  Solomon\n\nAttorney at Law\n17541 South Kedzie Avenue,  Suite 888\n\n[street address redacted for site publication -- see original PDF]\nmaxlawilin@gmail. com\n\nRE:  FOIA Request\n\nfor Review — 2019 PAC 59166\n\nDear Mr.  Patton and Mr.  Solomon: \n\nThis determination is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the Calumet Memorial Park District ( District) failed to\n\nconduct a reasonable search for records responsive to a FOIA request submitted by Mr. J. R. \nPatton. \n\nOn July 22,  2019,  Mr. Patton sent an e- mail to Mr. Charles L.  Dockery, Executive\n\nDirector of the Calumet Memorial Park District,  asking, \"[ W] ho at the park handles FOIA\nrequests? \nI' d like to submit a request but don' t know where to send it.\" I Later that day,  Ms. \nDockery responded, \" You can send it to me.  I am currently the FOIA Agent for the district.\" 2\nI would\nMr.  Patton sent a return e- mail to Mr. Dockery that evening stating: \" Thanks Charles! \n\nDirector ( July 22,  2019). \n\nE- mail from J. R.  Patton to Charles L. Dockery,  Calumet Memorial Park District, Executive\n\n2E -mail from Charles L. Dockery, Calumet Memorial Park District,  Executive Director to J. R. \n\nPatton ( July 22,  2019). \n\n500 South Second Street,  Springfield, \n\nIllinois 62706 • (\n\n217)  782- 1090 • \n\nTTY: ( 217)  785 - 2771 • \n\nFax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois,  60601 • (\n\n312)  814- 3000 •  TTY: ( 312)  814- 3374 •  Fax: ( 312)  814- 3806\n\n1001 East Main,  Carbondale, \n\nIllinois 62901 • (\n\n618)  529- 6400 •  TTY: ( 618)  529- 6403 •  Fax: ( 618)  529- 6416\n\n\fThe Honorable J. R.  Patton\n\nMr.  McStephen O. A.  Solomon\n\nJanuary 16,  2020\nPage 2\n\nlike to submit an [ sic]  FOIA for text messages from Yvette' s phone ( the new commissioner) \n\nduring the time of meetings for every meeting she' s attended so far. i3 The next day,  Mr. \nDockery stated: \" J. R.,  I don't know how you would go about that,  she is using her personal phone\nand not a park district issued phone.  I' m not sure but I think you will have to FOIA her for her\nphone records and not the Park District.  Make it a great day! i4 Mr.  Patton responded by\nasserting: \" As a member of the board she is required to comply with any request sent through the\npark district.  My understanding is that as the FOIA person at the park you can submit a copy of\nthe request to her and then she can comply or not comply from there — but I would check with\nthe parks attorney.\" 5\n\nIn the copy of this e- mail exchange that Mr.  Patton provided this office,  the next\ne- mail in the chain is a response from Mr. Dockery on July 31,  2019,  stating,  in pertinent part: \n\nIn My last email I asked you did your email serve as a\n\nFOIA request or was it just an email.  You never replied. \n\nHowever, I spoke with Commissioner Williams about your\n\nFOIA Inquiry for her text message records for every meeting that\nshe has been a commissioner.  She replied that she has no cell\nphone in her name and she can' t provide you those records. \n\nI have no problem providing you information,  however,  it\n\nneeds to be in the form of a formal FOIA request and not an\n\nemai061\n\nOn August\n\n1,  2019,  Mr. Patton submitted a Request for Review to the Public\nAccess Bureau contesting the District' s response to his FOIA request,  and asserting that the\nCommissioner identified in the FOIA request was in possession of and using a cell phone during\nat least one public meeting of the District's Board of Commissioners. \n\n3E -mail\nDirector (July 22,  2019). \n\nfrom\n\nJ. R.  Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\nE- mail from\n\nCharles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\nPatton ( July 23,  2019). \n\n5E -mail\nDirector ( July 23,  2019). \n\nfrom\n\nJ. R.  Patton to Charles L.  Dockery,  Calumet Memorial Park District,  Executive\n\nPatton ( July 31,  2019). \n\n6E - mail\n\nfrom\n\nCharles L. Dockery,  Calumet Memorial Park District,  Executive Director to J. R. \n\n\fThe Honorable J. R. Patton\n\nMr. McStephen O.A.  Solomon\nJanuary 16,  2020\nPage 3\n\nOn August 6,  2019, this office forwarded the Request for Review to the District\n\nasked it to provide a detailed description of the measures take to locate records responsive to the\n\nto explain whether\n\nit asked the Commissioner\n\nrequest.  Specifically,  this office asked the District\nidentified in the FOIA request ( Ms.  Yvette Pierce -Williams)  to search for responsive text\nmessages concerning District business' on any personal communication devices that were in her\npossession at the time of District Board meetings,  and to describe her response to that inquiry. \nOn August 19,  2019, the District' s outside counsel provided a response on the District's behalf, \narguing: ( 1)  Mr. Patton had not submitted a proper FOIA request to the District; ( 2)  Mr. Patton' s\ncorrespondence did not request copies of public records of the District because a Commissioner' s\ntexts are not records in the custody or possession of the District;  and ( 3)  the District\nwith the Commissioner about Mr. Patton's request and notified Mr. Patton of the Commissioner' s\nresponse.  Mr. Patton replied on August 21,  2019. \n\ninquired\n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" \n140/ 1 ( West 2018).  Under section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2018)), \"[ a] ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \nAs discussed above,  the District provided several\nnot properly respond to his FOIA request. \n\nresponses to Mr: Patton' s allegation that it did\n\n5 ILCS\n\nForm of FOIA Request\n\nThe District first argues that Mr. Patton' s e- mail to Mr. Dockery \" did not meet a\nrequest for inspection or copying of public records under the FOIA Act.  This is supported by\nthe fact that Mr. Patton' s email was not directed to the Calumet Memorial Park District — the\npublic body in this case.\"' ( Emphasis in original.)  However, as described above,  Mr. Patton\nsubmitted his FOIA request to the District by sending an e- mail to the District e- mail address of\nMr. Dockery,  the District' s designated FOIA Officer, who had just told Mr. Patton that the\nprocess for submitting a FOIA request to the District was to \" send it to [ him.] i8 Mr. Patton' s e- \nmail expressly indicated that he wanted to submit a \" FOIA\"  for text messages.  It is unclear what\nother process Mr. Patton should have followed to submit a FOIA request to the District other\nthan following the FOIA Officer' s express direction to send it to him and invoking FOIA. \n\nGeneral,  Public Access Bureau,  at 2 ( undated). \n\nLetter from McStephen O. A.  Solomon,  Attorney at Law,  to Leah Bartelt,  Assistant Attorney\n\nPatton ( July 22,  2019). \n\nE- mail from Charles L.  Dockery,  Calumet Memorial Park District,  Executive Director to J. R. \n\n\fThe Honorable J. R.  Patton\n\nMr.  McStephen O. A.  Solomon\n\nJanuary 16,  2020\nPage 4\n\nThe District further characterizes Mr. Patton' s correspondence to Mr. Dockery as\na \" personal email. i9 Section 3( c)  of FOIA ( 5 ILCS 140/ 3( c) ( West 2018),  as amended by Public\nAct 101- 081,  effective July 12,  2019)  states that written requests for inspection of copies of\nrecords \" may be submitted to a public body via personal delivery,  mail,  telefax,  or other means\navailable to the public body,\"  and that \"[ a]  public body may not require that a request be\nsubmitted on a standard form[.]\"  Given that Mr. Patton had been corresponding by sending e- \nmails to the District's FOIA Officer at his Park District e- mail address,  it was apparent that e- \n\nmail delivery of his FOIA request was a \" means available to the public body.\" \n\nFinally,  the District alleges that Mr.  Patton' s e- mail \" merely informs Mr.  Dockery\n\nthat he ' would like to submit [ a]  FOIA,'\" 10 rather than requesting inspection or copying of\nrecords.  This statement mischaracterizes the e- mail.  Mr.  Patton' s e- mail both states that he\n\nwould like to submit a \" FOIA\"  and specifically identifies the records he is seeking— text\nmessages from a particular commissioner' s phone sent or received during meetings. \nFurthermore,  Mr. Patton sent this e- mail after he had already asked and received an answer to his\ngeneral question about\nto the District.  The District\nfurther alleges that Mr. Dockery sought clarification from Mr.  Patton as to whether his request\nfor a Commissioner' s text messages was a FOIA request,  and that Mr. Patton did not respond to\n\nthe process for submitting a FOIA request\n\nthat request for clarification.  Regardless,  Mr. Patton' s e- mail was directed to the FOIA officer, \nspecifically invoked FOIA,  and asked for a particular set of records.  This e- mail\nleaves no room\nfor ambiguity as to whether Mr. Patton was seeking information under FOIA.  The e- mail was a\nvalid FOIA request to which Mr. Patton is entitled to receive either responsive records or a\n\nproper denial. \n\nDefinition of Public Records\n\nAlternatively,  the District argues that Mr. Patton' s request for any text messages\n\nCommissioner Pierce -Williams sent or received during a public meeting does not seek public\nrecords of the District.  Section 3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2018))  provides that\ne] ach public body shall make available to any person for inspection or copying all public\nrecords,  except as otherwise provided in Sections 7 and 8. 5 of this Act.\"  Section 2( c)  of FOIA\ndefines \" public records\"  as: \n\nGeneral,  Public Access Bureau,  at 2 ( undated). \n\n9Letter from McStephen O.A.  Solomon,  Attorney at Law, to Leah Bartelt, Assistant Attorney\n\nGeneral,  Public Access Bureau,  at 2 ( undated). \n\n1° Letter from McStephen O. A.  Solomon,  Attorney at Law,  to Leah Bartelt,  Assistant Attorney\n\n\fThe Honorable J. R.  Patton\n\nMr.  McStephen O. A.  Solomon\n\nJanuary 16,  2020\nPage 5\n\nall records,  reports,  forms, writings,  letters,  memoranda,  books, \n\npapers,  maps,  photographs,  microfilms,  cards,  tapes,  recordings, \n\nelectronic data processing records,  electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business,  regardless of\nphysical form or characteristics,  having been prepared by or for, or\nhaving been or being used by,  received by,  in the possession of, or\nunder the control of any public body. ( Emphasis added.) \n\nSpecifically,  the District argues: \n\nT] he information/ records requested by Mr. Patton were not\n\nrecords in the custody or possession'  of the Calumet Memorial\nPark District, which, under the FOIA Act, would have been 'open\nto inspection or copying.\"  See 5 ILCS 140/ 1. 2.  Nothing in the\nIllinois FOIA Act vests duty or responsibility upon a public body\nto investigate or seek information/ records that are not in its custody\nor possession for the purpose of responding to a FOIA request.\"  tl\nCitation in original.) \n\nThe Illinois Appellate Court specifically rejected a similar argument seeking the\n\nsame type of records in City of Champaign v.  Madigan, 2013 IL App ( 4th)  120662, ¶ 38,  992\nN. E. 2d 629,  638 ( 2013).  There,  the City argued that electronic communications sent or received\nby City Council members during a City Council meeting were not the City' s \" public records\"  if\nthey were sent or received on the personal communication devices of the City Council members. \nCity of Champaign,  2013 IL App ( 4th)  120662, ¶ 19.  In rejecting that argument,  the appellate\n\ncourt explained: \n\nAlice the individual city council members have convened a city\nit can reasonably be said they are acting in\ncouncil meeting * * *, \ntheir collective capacity as the \" public body\"  during the time the\nThus,  if the communication, which\nmeeting is in session. * * * \npertains to the transaction of public business,  was sent or received\nduring the time a city council meeting was in session,  i. e.,  during\nthe time the individual city council members were functioning\ncollectively as the \" public body,\"  then the communication is a\n\nGeneral,  Public Access Bureau,  at 2- 3 ( undated). \n\nLetter from McStephen O. A.  Solomon,  Attorney at Law,  to Leah Bartelt,  Assistant Attorney\n\n\fThe Honorable J. R.  Patton\n\nMr.  McStephen O. A.  Solomon\n\nJanuary 16,  2020\nPage 6\n\npublic record\"  and thus subject to FOIA.  City of Champaign, \n2013 IL App ( 4th)  120662, ¶ 42. \n\nLikewise,  Mr. Patton requested any text messages from the phone of a public\n\nbody member sent or received during meetings.  His Request for Review makes clear that he is\ncontesting the District' s denial of his request only with respect\nrelating to the business of the board meeting[.]\"\nCommissioner Pierce -Williams sent or received text messages during a Board meeting that\nconcerned the public business of the District or Board,  those messages are the District' s public\nrecords and are subject\n\nI2 Accordingly,  to the extent that the • \n\nto \" any and all text message\n\nto FOIA. 13\n\nAdequacy of the Village' s Search for Responsive Records\n\nFinally,  the District' s response to the Request\n\nfor Review asserts that Mr.  Dockery\n\nin good faith,  did speak with the identified Commissioner to inquire about the subject of Mr. \nPatton' s ' FOIA request.'  Her response was relayed to Mr. Patton.  Again,  neither Mr. Dockery, \nnor the Calumet Memorial Park District,  under the Illinois FOIA Act,  is under any legal\nobligation or duty to conduct any investigation or inquiry into the response of the\nCommissioner. i14 Mr. Dockery had responded to Mr. Patton' s FOIA request by asserting that the\ncommissioner\n\nreported she has no cell phone in her name. \n\nstandard of reasonableness[.]\" \n\nThe adequacy of [a public body' s]  search for requested documents is judged by a\nMiller v.  US.  Department of State,  779 F. 2d 1378,  1383 ( 8th Cir. \n\n1985). \" At all times the burden is on the [ public body]  to establish the adequacy of its search.\" \nRugiero v.  US. Dep' t of Justice,  257 F. 3d 534,  547 ( 6th Cir.  2001). \nIn Binding Opinion 16- 006\n\n2019). \n\n12E -mail from J. R.  Patton,  6th Ward Alderman,  City of Calumet City to Public Access ( August\n\n1, \n\nThe District also argues that the requested records were \" personal,  and thus,  may be subject to\nthe exemption provisions of the FOIA Act,\"  citing \" section 7( b)\"  of FOIA.  The District' s argument on this point is\nnot well developed and its intent is unclear.  Certainly,  texts concerning personal matters that are unrelated to the\ntransaction of public business are not subject to the requirements of FOIA.  5 ILCS 140/ 2( c) ( West 2018) ( limiting\nthe definition of\" public records\"  to \" all records, * * *  pertaining to the transaction of public business[.]\");  City of\nChampaign,  2013 IL App ( 4th)  120662, ¶ 3 I,  992 N.E. 2d at 637 (\" to qualify as a public record a communication\nmust\nIndeed,  FOIA is not concerned\nwith an individual' s private affairs.\").  However, to the extent that the District is arguing that communications that\npertain to public business but sent on. a personal device are exempt from disclosure,  the District is incorrect, for the\n\nfirst pertain to ' business or community interests as opposed to private affairs.' \n\nreasons explained above. \n\n14Letter\nGeneral,  Public Access Bureau,  at 3 ( undated). \n\nfrom McStephen O. A.  Solomon,  Attorney at Law,  to Leah Bartell,  Assistant Attorney\n\n\fThe Honorable J. R.  Patton\n\nMr. McStephen O. A. Solomon\n\nJanuary 16,  2020\nPage 7\n\nan automated search of the entirety of a personal e- mail account using a search\n\nIll. Att' y Gen. Pub.  Acc.  Op.  No.  16- 006,  issued August 9, 2016),  this office analyzed whether\nthe Chicago Police Department ( CPD)  violated FOIA by failing to attempt to ascertain whether\nits personnel possessed e- mails in their private e- mail accounts that were responsive to a request\nseeking e- mails about a police shooting from both public and private accounts.  With respect to\nthe parameters of the search that CPD was obligated to perform under FOIA,  the Attorney\nGeneral stated: \"\nterm is not necessarily required.  Depending on the circumstances,  ordering CPD officers to\nproduce any responsive records may satisfy the requirement that CPD conduct a reasonable\nsearch.\" \nBrophy v.  U.S. Department of Defense, No.  CIV.A. 05- 360 ( RMC),  2006 WL 571901,  at * 8\nD. D. C.  2006)  for the principle that \" absent evidence of a lack of good faith,  a public employee' s\nsearch of his personal e- mail account and confirmation that he did not locate responsive records\nsatisfied the public body'  s obligation to conduct a reasonable search of that account.\"  Ill. Att'y\nGen.  Pub.  Acc.  Op.  No.  16- 006,  at 11. \n\nIII. Att'y Gen.  Pub. Acc.  Op.  No.  16- 006,  at 10.  The Attorney General also cited\n\nThe District did not demonstrate it conducted a reasonable search for the records\n\nMr. Patton requested.  In one of his initial e- mails to Mr. Patton, Mr. Dockery stated that the\ncommissioner was \" using her personal phone and not a park district issued phone, i15 and then\ntold him she does not have a cell phone in her name.  Mr. \nlater responded that the commissioner\nPatton asserted to this office that Commissioner Pierce -Williams was seen using a cell phone at a\nmeeting.  Given these conflicting statements,  this office requested that the District clarify\nwhether it had asked the commissioner to search for responsive text messages concerning public\nbusiness on any personal communication devices that were in her possession at the time of\nDistrict Board meetings. \nresponded to this office by referencing Mr. Dockery's imprecise statement to Mr. Patton and\narguing it had no duty to ask the commissioner any additional questions.  For that reason,  this\noffice is unable to conclude that the District performed a reasonable search for public records\nresponsive to Mr.  Patton' s request. \n\nInstead of providing this simple clarification,  the District\n\ninstead\n\nAccordingly,  this office has determined that the District violated FOIA by failing\n\nto conduct a reasonable search for responsive records.  This office requests that the District\ninquire with the commissioner identified in the FOIA request as to whether she possesses any\nresponsive text messages concerning public business on any personal communication devices\nthat were in her possession at the time of District Board meetings.  Following that search,  the\nDistrict should issue a supplemental response to Mr. Patton,  providing him with copies of any\npublic records responsive to his request,  subject only to permissible redactions under section 7 of\nFOIA ( 5 ILCS 140/ 7 ( West 2018)).  If the District determines that there are no public records\n\nPatton ( July 23,  2019). \n\n15E - mail\n\nfrom Charles L. Dockery,  Calumet Memorial Park District,  Executive Director to J. R. \n\n\fhe Honorable J. R.  Patton\n\nMr.  McStephen O. A. Solomon\n\nJanuary 16,  2020\nPage 8\n\nresponsive to Mr. Patton' s request,  its supplemental response should describe how it reached that\n\nconclusion in sufficient detail\n\nto allow for adversarial\n\ntesting. \n\nThe Public Access Counselor has determined that resolution of this issue does not\n\nrequire the issuance of a binding opinion.  This letter shall serve to close the matter.  If you have\nany questions,  you may contact me at ( 312)  814- 6437 or lbartelt@atg. state. il. us\n\nVery truly yours, \n\nLEAH BAR rI ELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n59166 f 2c improper 3a search improper pkd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Park district officials' communications about district business","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-59166/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKwame Raoul\n\nATTORNEY GENERAL\n\nJanuary 16, 2020\n\nVia electronic mail\n\nThe Honorable J. R. Patton\n\nAlderman\n\nCity of Calumet City\n\nVia electronic mail\n\nMr. McStephen O. A. Solomon\n\nAttorney at Law\n17541 South Kedzie Avenue, Suite 888\n\n[street address redacted for site publication -- see original PDF]\nmaxlawilin@gmail. com\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 59166\n\nDear Mr. Patton and Mr. Solomon: \n\nThis determination is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Calumet Memorial Park District (District) failed to\n\nconduct a reasonable search for records responsive to a FOIA request submitted by Mr. J. R. \nPatton. \n\nOn July 22, 2019, Mr. Patton sent an e- mail to Mr. Charles L. Dockery, Executive\n\nDirector of the Calumet Memorial Park District, asking, \"[ W] ho at the park handles FOIA\nrequests? \nI' d like to submit a request but don' t know where to send it.\" I Later that day, Ms. \nDockery responded, \" You can send it to me. I am currently the FOIA Agent for the district.\" 2\nI would\nMr. Patton sent a return e- mail to Mr. Dockery that evening stating: \" Thanks Charles! \n\nDirector (July 22, 2019). \n\nE- mail from J. R. Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\n2E -mail from Charles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\nPatton (July 22, 2019). \n\nlike to submit an [ sic] FOIA for text messages from Yvette's phone (the new commissioner) \n\nduring the time of meetings for every meeting she's attended so far. i3 The next day, Mr. \nDockery stated: \" J. R., I don't know how you would go about that, she is using her personal phone\nand not a park district issued phone. I' m not sure but I think you will have to FOIA her for her\nphone records and not the Park District. Make it a great day! i4 Mr. Patton responded by\nasserting: \" As a member of the board she is required to comply with any request sent through the\npark district. My understanding is that as the FOIA person at the park you can submit a copy of\nthe request to her and then she can comply or not comply from there — but I would check with\nthe parks attorney.\" 5\n\nIn the copy of this e- mail exchange that Mr. Patton provided this office, the next\ne- mail in the chain is a response from Mr. Dockery on July 31, 2019, stating, in pertinent part: \n\nIn My last email I asked you did your email serve as a\n\nFOIA request or was it just an email. You never replied. \n\nHowever, I spoke with Commissioner Williams about your\n\nFOIA Inquiry for her text message records for every meeting that\nshe has been a commissioner. She replied that she has no cell\nphone in her name and she can' t provide you those records. \n\nI have no problem providing you information, however, it\n\nneeds to be in the form of a formal FOIA request and not an\n\nemai061\n\nOn August\n\n1, 2019, Mr. Patton submitted a Request for Review to the Public\nAccess Bureau contesting the District's response to his FOIA request, and asserting that the\nCommissioner identified in the FOIA request was in possession of and using a cell phone during\nat least one public meeting of the District's Board of Commissioners. \n\n3E -mail\nDirector (July 22, 2019). \n\nfrom\n\nJ. R. Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\nE- mail from\n\nCharles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\nPatton (July 23, 2019). \n\n5E -mail\nDirector (July 23, 2019). \n\nfrom\n\nJ. R. Patton to Charles L. Dockery, Calumet Memorial Park District, Executive\n\nOn August 6, 2019, this office forwarded the Request for Review to the District\n\nasked it to provide a detailed description of the measures take to locate records responsive to the\n\nto explain whether\n\nit asked the Commissioner\n\nrequest. Specifically, this office asked the District\nidentified in the FOIA request (Ms. Yvette Pierce -Williams) to search for responsive text\nmessages concerning District business' on any personal communication devices that were in her\npossession at the time of District Board meetings, and to describe her response to that inquiry. \nOn August 19, 2019, the District's outside counsel provided a response on the District's behalf, \narguing: (1) Mr. Patton had not submitted a proper FOIA request to the District; (2) Mr. Patton's\ncorrespondence did not request copies of public records of the District because a Commissioner's\ntexts are not records in the custody or possession of the District; and (3) the District\nwith the Commissioner about Mr. Patton's request and notified Mr. Patton of the Commissioner's\nresponse. Mr. Patton replied on August 21, 2019. \n\ninquired\n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [ FOIA].\" \n140/ 1 (West 2018). Under section 1. 2 of FOIA (5 ILCS 140/ 1. 2 (West 2018)), \"[ a] ll records in\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \nAs discussed above, the District provided several\nnot properly respond to his FOIA request. \n\nresponses to Mr: Patton's allegation that it did\n\n5 ILCS\n\nForm of FOIA Request\n\nThe District first argues that Mr. Patton's e- mail to Mr. Dockery \" did not meet a\nrequest for inspection or copying of public records under the FOIA Act. This is supported by\nthe fact that Mr. Patton's email was not directed to the Calumet Memorial Park District — the\npublic body in this case.\"' (Emphasis in original.) However, as described above, Mr. Patton\nsubmitted his FOIA request to the District by sending an e- mail to the District e- mail address of\nMr. Dockery, the District's designated FOIA Officer, who had just told Mr. Patton that the\nprocess for submitting a FOIA request to the District was to \" send it to [ him.] i8 Mr. Patton's e- \nmail expressly indicated that he wanted to submit a \" FOIA\" for text messages. It is unclear what\nother process Mr. Patton should have followed to submit a FOIA request to the District other\nthan following the FOIA Officer's express direction to send it to him and invoking FOIA. \n\nGeneral, Public Access Bureau, at 2 (undated). \n\nLetter from McStephen O. A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\nPatton (July 22, 2019). \n\nE- mail from Charles L. Dockery, Calumet Memorial Park District, Executive Director to J. R. \n\nThe District further characterizes Mr. Patton's correspondence to Mr. Dockery as\na \" personal email. i9 Section 3(c) of FOIA (5 ILCS 140/ 3(c) (West 2018), as amended by Public\nAct 101- 081, effective July 12, 2019) states that written requests for inspection of copies of\nrecords \" may be submitted to a public body via personal delivery, mail, telefax, or other means\navailable to the public body,\" and that \"[ a] public body may not require that a request be\nsubmitted on a standard form[.]\" Given that Mr. Patton had been corresponding by sending e- \nmails to the District's FOIA Officer at his Park District e- mail address, it was apparent that e- \n\nmail delivery of his FOIA request was a \" means available to the public body.\" \n\nFinally, the District alleges that Mr. Patton's e- mail \" merely informs Mr. Dockery\n\nthat he ' would like to submit [ a] FOIA,'\" 10 rather than requesting inspection or copying of\nrecords. This statement mischaracterizes the e- mail. Mr. Patton's e- mail both states that he\n\nwould like to submit a \" FOIA\" and specifically identifies the records he is seeking— text\nmessages from a particular commissioner's phone sent or received during meetings. \nFurthermore, Mr. Patton sent this e- mail after he had already asked and received an answer to his\ngeneral question about\nto the District. The District\nfurther alleges that Mr. Dockery sought clarification from Mr. Patton as to whether his request\nfor a Commissioner's text messages was a FOIA request, and that Mr. Patton did not respond to\n\nthe process for submitting a FOIA request\n\nthat request for clarification. Regardless, Mr. Patton's e- mail was directed to the FOIA officer, \nspecifically invoked FOIA, and asked for a particular set of records. This e- mail\nleaves no room\nfor ambiguity as to whether Mr. Patton was seeking information under FOIA. The e- mail was a\nvalid FOIA request to which Mr. Patton is entitled to receive either responsive records or a\n\nproper denial. \n\nDefinition of Public Records\n\nAlternatively, the District argues that Mr. Patton's request for any text messages\n\nCommissioner Pierce -Williams sent or received during a public meeting does not seek public\nrecords of the District. Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2018)) provides that\ne] ach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8. 5 of this Act.\" Section 2(c) of FOIA\ndefines \" public records\" as: \n\nGeneral, Public Access Bureau, at 2 (undated). \n\n9 Letter from McStephen O.A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\nGeneral, Public Access Bureau, at 2 (undated). \n\n1° Letter from McStephen O. A. Solomon, Attorney at Law, to Leah Bartelt, Assistant Attorney\n\nall records, reports, forms, writings, letters, memoranda, books, \n\npapers, maps, photographs, microfilms, cards, tapes, recordings, \n\nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. (Emphasis added.) \n\nSpecifically, the District argues: \n\nT] he information/ records requested by Mr. Patton were not\n\nrecords in the custody or possession' of the Calumet Memorial\nPark District, which, under the FOIA Act, would have been 'open\nto inspection or copying.\" See 5 ILCS 140/ 1. 2. Nothing in the\nIllinois FOIA Act vests duty or responsibility upon a public body\nto investigate or seek information/ records that are not in its custody\nor possession for the purpose of responding to a FOIA request.\" tl\nCitation in original.) \n\nThe Illinois Appellate Court specifically rejected a similar argument seeking the\n\nsame type of records in City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 38, 992\nN. E. 2d 629, 638 (2013). There, the City argued that electronic communications sent or received\nby City Council members during a City Council meeting were not the City's \" public records\" if\nthey were sent or received on the personal communication devices of the City Council members. \nCity of Champaign, 2013 IL App (4th) 120662, ¶ 19. In rejecting that argument, the appellate\n\ncourt explained: \n\nAlice the individual city council members have convened a city\nit can reasonably be said they are acting in\ncouncil meeting * * *, \ntheir collective capacity as the \" public body\" during the time the\nThus, if the communication, which\nmeeting is in session. * * * \npertains to the transaction of public business, was sent or received\nduring the time a city council meeting was in session, i. e., during\n\npublic record\" and thus subject to FOIA. City of Champaign, \n2013 IL App (4th) 120662, ¶ 42. \n\nLikewise, Mr. Patton requested any text messages from the phone of a public\n\nbody member sent or received during meetings. His Request for Review makes clear that he is\ncontesting the District's denial of his request only with respect\nrelating to the business of the board meeting[.]\"\nCommissioner Pierce -Williams sent or received text messages during a Board meeting that\nconcerned the public business of the District or Board, those messages are the District's public\nrecords and are subject\n\nI2 Accordingly, to the extent that the • \n\nto \" any and all text message\n\nto FOIA. 13\n\nAdequacy of the Village's Search for Responsive Records\n\nFinally, the District's response to the Request\n\nfor Review asserts that Mr. Dockery\n\nin good faith, did speak with the identified Commissioner to inquire about the subject of Mr. \nPatton's ' FOIA request.' Her response was relayed to Mr. Patton. Again, neither Mr. Dockery, \nnor the Calumet Memorial Park District, under the Illinois FOIA Act, is under any legal\nobligation or duty to conduct any investigation or inquiry into the response of the\nCommissioner. i14 Mr. Dockery had responded to Mr. Patton's FOIA request by asserting that the\ncommissioner\n\nreported she has no cell phone in her name. \n\nstandard of reasonableness[.]\" \n\nThe adequacy of [a public body's] search for requested documents is judged by a\nMiller v. US. Department of State, 779 F. 2d 1378, 1383 (8th Cir. \n\n1985). \" At all times the burden is on the [ public body] to establish the adequacy of its search.\" \nRugiero v. US. Dep' t of Justice, 257 F. 3d 534, 547 (6th Cir. 2001). \nIn Binding Opinion 16- 006\n\n2019). \n\n12E -mail from J. R. Patton, 6th Ward Alderman, City of Calumet City to Public Access (August\n\n1, \n\nThe District also argues that the requested records were \" personal, and thus, may be subject to\nthe exemption provisions of the FOIA Act,\" citing \" section 7(b)\" of FOIA. The District's argument on this point is\nnot well developed and its intent is unclear. Certainly, texts concerning personal matters that are unrelated to the\ntransaction of public business are not subject to the requirements of FOIA. 5 ILCS 140/ 2(c) (West 2018) (limiting\nthe definition of\" public records\" to \" all records, * * * pertaining to the transaction of public business[.]\"); City of\nChampaign, 2013 IL App (4th) 120662, ¶ 3 I, 992 N.E. 2d at 637 (\" to qualify as a public record a communication\nmust\nIndeed, FOIA is not concerned\nwith an individual's private affairs.\"). However, to the extent that the District is arguing that communications that\npertain to public business but sent on. a personal device are exempt from disclosure, the District is incorrect, for the\n\nfirst pertain to ' business or community interests as opposed to private affairs.' \n\nan automated search of the entirety of a personal e- mail account using a search\n\nIll. Att' y Gen. Pub. Acc. Op. No. 16- 006, issued August 9, 2016), this office analyzed whether\nthe Chicago Police Department (CPD) violated FOIA by failing to attempt to ascertain whether\nits personnel possessed e- mails in their private e- mail accounts that were responsive to a request\nseeking e- mails about a police shooting from both public and private accounts. With respect to\nthe parameters of the search that CPD was obligated to perform under FOIA, the Attorney\nGeneral stated: \"\nterm is not necessarily required. Depending on the circumstances, ordering CPD officers to\nproduce any responsive records may satisfy the requirement that CPD conduct a reasonable\nsearch.\" \nBrophy v. U.S. Department of Defense, No. CIV.A. 05- 360 (RMC), 2006 WL 571901, at * 8\nD. D. C. 2006) for the principle that \" absent evidence of a lack of good faith, a public employee's\nsearch of his personal e- mail account and confirmation that he did not locate responsive records\nsatisfied the public body's obligation to conduct a reasonable search of that account.\" Ill. Att'y\nGen. Pub. Acc. Op. No. 16- 006, at 11. \n\nIII. Att'y Gen. Pub. Acc. Op. No. 16- 006, at 10. The Attorney General also cited\n\nThe District did not demonstrate it conducted a reasonable search for the records\n\nMr. Patton requested. In one of his initial e- mails to Mr. Patton, Mr. Dockery stated that the\ncommissioner was \" using her personal phone and not a park district issued phone, i15 and then\ntold him she does not have a cell phone in her name. Mr. \nlater responded that the commissioner\nPatton asserted to this office that Commissioner Pierce -Williams was seen using a cell phone at a\nmeeting. Given these conflicting statements, this office requested that the District clarify\nwhether it had asked the commissioner to search for responsive text messages concerning public\nbusiness on any personal communication devices that were in her possession at the time of\nDistrict Board meetings. \nresponded to this office by referencing Mr. Dockery's imprecise statement to Mr. Patton and\narguing it had no duty to ask the commissioner any additional questions. For that reason, this\noffice is unable to conclude that the District performed a reasonable search for public records\nresponsive to Mr. Patton's request. \n\nInstead of providing this simple clarification, the District\n\ninstead\n\nAccordingly, this office has determined that the District violated FOIA by failing\n\nto conduct a reasonable search for responsive records. This office requests that the District\ninquire with the commissioner identified in the FOIA request as to whether she possesses any\nresponsive text messages concerning public business on any personal communication devices\nthat were in her possession at the time of District Board meetings. Following that search, the\nDistrict should issue a supplemental response to Mr. Patton, providing him with copies of any\npublic records responsive to his request, subject only to permissible redactions under section 7 of\nFOIA (5 ILCS 140/ 7 (West 2018)). If the District determines that there are no public records\n\nresponsive to Mr. Patton's request, its supplemental response should describe how it reached that\n\nconclusion in sufficient detail\n\nto allow for adversarial\n\ntesting. \n\nThe Public Access Counselor has determined that resolution of this issue does not\n\nrequire the issuance of a binding opinion. This letter shall serve to close the matter. If you have\nany questions, you may contact me at (312) 814- 6437 or lbartelt@atg. state. il. us\n\nVery truly yours, \n\nLEAH BAR rI ELT\n\nDeputy Public Access Counselor\nPublic Access Bureau\n\n59166 f 2c improper 3a search improper pkd"}
{"id":943,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-08-16","case_number":null,"request_numbers":["59194"],"title":"Village of Cambridge not required to scan paper records into electronic format","filename":"59194, issued August 16, 2019.pdf","rel_path":null,"word_count":1476,"summary":"The requester challenged the Village of Cambridge's refusal to provide electronic copies of paper records, arguing that the Village's possession of a scanner mandated such conversion. The PAC determined that FOIA does not require a public body to create electronic copies of records maintained solely in paper format.","plain_summary":"A requester asked the Village of Cambridge to scan paper documents and send them as electronic files. The Attorney General's office ruled that FOIA does not force public bodies to convert paper records into electronic files just because they own a scanner. The request was closed with no further action taken.","holding":"The Village of Cambridge was not required to scan paper records to provide them in an electronic format.","legal_question":"Does FOIA require a public body to create electronic copies of records that are maintained solely in paper format?","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Cambridge","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"records format","subject_description":"The requester sought electronic copies of records that the public body only maintains in paper format.","ocr_status":"ok","ocr_quality":97.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_d/59194%2C%20issued%20August%2016%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["electronic records","paper records","scanning","copying"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nAugust 16,  2019\n\nRE:  FOIA Request for Review — 2019 PAC 59194\n\nDear\n\nThis determination is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)).  For the reasons set forth below,  the\n\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn June 10,  2019,  you submitted a FOIA request to the Village of Cambridge\n\nformat ( PDF)  copies of certain records that you\n\nVillage)  seeking portable document\nacknowledged existed solely in paper format; you stated that this request was a repeat of one of\nyour previous requests to the Village.  On June 20,  2019,  the Village responded that your request\nwas an unduly burdensome repeated request under section 3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West\n2018)),  but that,  in any event,  it was not required to provide electronic copies of records that it\ndid not maintain electronically.  On August 5,  2019,  this office received your Request\nReview arguing that because the Village possesses a scanner,  it is required to scan in records\nmaintained solely in paper format and provide you with electronic copies,  free of charge.  You\ncontend that this office' s previous determination that a public body is not required to provide\nelectronic copies of records that it maintains only in paper format\ndetermination did not account for the definition of \"copying\"  in section 2( d)  of FOIA ( 5' ILCS\n140/ 2( d) ( West 2018)). \n\nin incorrect,'  arguing that the\n\nfor\n\nSection 3( g)  of FOIA provides, \n\nin relevant part, \"[ r] epeated requests from the\n\nsame person for the same records that are unchanged or identical\nor properly denied under this Act shall be deemed unduly burdensome under this provision.\" \nEmphasis added.)  You argue that the Village did not properly assert section 3( g)  in its denial. \nHowever, as your Request for Review acknowledges,  whether or not the denial was proper under\n\nto records previously provided\n\nsection 3( g),  the underlying issue is the same:  whether FOIA requires a public body to provide a\n\n1111.  Att'y Gen.  PAC Req.  Rev.  Ltr. 46913,  issued May 2,  2017,  at 3. \n\n500 South Second Street,  Springfield, \niY: (877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 • ' iTY: (800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  IL 62901 • ( 618)  529- 6400 •'\n1\" FY: ( 877)  675- 9339 •  Fax ( 618)  529- 6416\n\n217)  782- 1090 •'\n\nIllinois 62701 • (\n\n1'\n\n\fAugust 16,  2019\n\nPage 2\n\nrequester with electronic copies of records that it maintains in paper format.  Therefore,  we need\n\nnot address the section 3( g)  issues here. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" \nconstrued \" as a whole,  so that no part is rendered meaningless or superfluous.\"  People v.  Jones, \n\n5 ILCS 140/ 1. 2 ( West 2018).  Statutes must be\n\n223 Ill.  2d 569,  581 ( 2006). \n\nSection 2( d)  of FOIA defines \" copying\"  as: \"\n\nthe reproduction of any public\n\nrecord by means of any photographic,  electronic,  mechanical or other process,  device or means\nnow known or hereafter developed and available to the public body.\"  Additionally, sections 6( a) \nand 6( a- 5)  of FOIA ( 5 ILCS 140/ 6( a), ( a- 5) ( West 2018))  provide, in pertinent part: \n\na)  When a person requests a copy of a record maintained\n\nin an electronic format, the public body shall furnish it in the\nelectronic format specified by the requester,  if feasible.  If it is not\nfeasible to furnish the public records in the specified electronic\nformat,  then the public body shall furnish it in the format in which\nit is maintained by the public body,  or in paper format at the option\nof the requester.  A public body may charge the requester for the\nactual cost of purchasing the recording medium,  whether disc, \ndiskette,  tape,  or other medium. * * * \n\na- 5)  If a voluminous request\n\nis for electronic records and\n\nthose records are not in a portable document format (PDF),  the\n\npublic body may charge up to $ 20 for not more than 2 megabytes\nof data,  up to $ 40 for more than 2 but not more than 4 megabytes\nof data,  and up to $ 100 for more than 4 megabytes of data.  If a\nvoluminous request is for electronic records and those records are\nin a portable document format,  the public body may charge up to\n20 for not more than 80 megabytes of data,  up to $ 40 for more\nthan 80 megabytes but not more than 160 megabytes of data, and\n\nup to $ 100 for more than 160 megabytes of data.  If the responsive\nelectronic records are in both a portable document\nformat and not\nin a portable document format, the public body may separate the\nfees and charge the requester under both fee scales. \n\nFurther, section 6( b)  of FOIA ( 5 ILCS 140/ 6( b) ( West 2018))  sets forth fees for paper copies\n\nbased on page count,  unlike section 6( a),  which authorizes a public body to charge at most the\ncost of the recording medium used to transmit electronic copies of electronic records. \n\n\fAugust 16,  2019\n\nPage 3\n\nConstruing FOIA as a whole,  the statute does not require a public body to provide\n\nelectronic copies of paper records.  Section 6( a)  of FOIA specifically addresses providing\nelectronic copies of records \" maintained in an electronic format.\"  The absence of similar\n\nlanguage stating that a public body shall provide electronic copies of records maintained in a\npaper format indicates that the General Assembly intended no such requirement.  Further,  section\n6( a)  provides that a public body is only required to provide copies of records maintained\nelectronically in a specified electronic format if it is \" feasible\"  to do so.  If the definition of\ncopying\"  in section 2( d)  imposed a blanket obligation on public bodies to reproduce all records\nby any means \" available\"  to a public body,  as you appear to assert,  then the provisions in section\n6( a)  limiting the extent of the obligation to provide electronic records in a specified electronic\nformat to when it is \" feasible\"  would be superfluous. \n\nSimilarly,  section 6( a- 5)  of FOIA provides fees only for electronic copies of\nelectronic records,  in cases of voluminous requests.  The notion that a public body would be\nrequired to scan in paper records responsive to a voluminous request would have an absurd\n\nresult:  a public body would be able to charge up to $ 100 for electronic copies of electronic\nrecords,  but no more than the cost of a recording medium for electronic copies of paper records, \ndespite the high probability that the effort and resources involved in making electronic copies of\npaper records would exceed the effort and resources involved in providing electronic copies of\nelectronic records.  Such an absurd result must be rejected.  See, for example,  People v.  Garcia, \n\n241 Ill.  2d 416,  421 ( 2011) (\"\n\nIt is always presumed that the legislature did not intend to cause\n\nabsurd,  inconvenient,  or unjust results.\"). \n\nConstruing FOIA as requiring public bodies to provide only paper copies of paper\n\nrecords does not conflict with section 2( d)  of FOIA.  To the contrary,  this interpretation is\nharmonious with section 2( d)  and the other provisions of FOIA in that section 2( d)  merely\naccounts for various methods of reproduction depending on the circumstances.  In other words, \nbecause the method of reproduction applicable to one type of record may not work for a different\ntype of record, the definition must be expansive enough to account for those differences.  The\n\ndiscussion of copying in Hites v.  Waubonsee Community College,  2016 IL App ( 2d)  150836, \n73,  56 N. E. 3d 1049,  1065 ( 2016)  is irrelevant\n\nto the legal question here,  as Hites did not\n\naddress whether a public body is required to make and provide electronic copies of records that it\nmaintains only in paper format..  Rather,  the court discussed the unrelated notion that electronic\nsorting of a database could be considered\n\na form of copying. \n\n\fAugust 16,  2019\n\nPage 4\n\nFor all of these reasons,  this office concludes that no further action is warranted in\n\nthis matter.  This letter closes this file. \n\nVery truly yours, \n\nJOSHUA M.  JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n59194 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMr.  Steven Brown\n\nFOIA Officer\n\nVillage of Cambridge\n\n24 West Exchange Street\n\nCambridge,  Illinois 61238\n\nadmnvoc@gmail. com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Paper-only records requested in electronic format","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-59194/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nAugust 16, 2019\n\nRE: FOIA Request for Review — 2019 PAC 59194\n\nDear\n\nThis determination is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2018)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn June 10, 2019, you submitted a FOIA request to the Village of Cambridge\n\nformat (PDF) copies of certain records that you\n\nVillage) seeking portable document\nacknowledged existed solely in paper format; you stated that this request was a repeat of one of\nyour previous requests to the Village. On June 20, 2019, the Village responded that your request\nwas an unduly burdensome repeated request under section 3(g) of FOIA (5 ILCS 140/ 3(g) (West\n2018)), but that, in any event, it was not required to provide electronic copies of records that it\ndid not maintain electronically. On August 5, 2019, this office received your Request\nReview arguing that because the Village possesses a scanner, it is required to scan in records\nmaintained solely in paper format and provide you with electronic copies, free of charge. You\ncontend that this office's previous determination that a public body is not required to provide\nelectronic copies of records that it maintains only in paper format\ndetermination did not account for the definition of \"copying\" in section 2(d) of FOIA (5' ILCS\n140/ 2(d) (West 2018)). \n\nin incorrect,' arguing that the\n\nfor\n\nSection 3(g) of FOIA provides, \n\nin relevant part, \"[ r] epeated requests from the\n\nsame person for the same records that are unchanged or identical\nor properly denied under this Act shall be deemed unduly burdensome under this provision.\" \nEmphasis added.) You argue that the Village did not properly assert section 3(g) in its denial. \nHowever, as your Request for Review acknowledges, whether or not the denial was proper under\n\nto records previously provided\n\nsection 3(g), the underlying issue is the same: whether FOIA requires a public body to provide a\n\n1111. Att'y Gen. PAC Req. Rev. Ltr. 46913, issued May 2, 2017, at 3. \n\nrequester with electronic copies of records that it maintains in paper format. Therefore, we need\n\nnot address the section 3(g) issues here. \n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" \nconstrued \" as a whole, so that no part is rendered meaningless or superfluous.\" People v. Jones, \n\n5 ILCS 140/ 1. 2 (West 2018). Statutes must be\n\n223 Ill. 2d 569, 581 (2006). \n\nSection 2(d) of FOIA defines \" copying\" as: \"\n\nthe reproduction of any public\n\nrecord by means of any photographic, electronic, mechanical or other process, device or means\nnow known or hereafter developed and available to the public body.\" Additionally, sections 6(a) \nand 6(a- 5) of FOIA (5 ILCS 140/ 6(a), (a- 5) (West 2018)) provide, in pertinent part: \n\na) When a person requests a copy of a record maintained\n\nin an electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. * * * \n\na- 5) If a voluminous request\n\nis for electronic records and\n\nthose records are not in a portable document format (PDF), the\n\npublic body may charge up to $ 20 for not more than 2 megabytes\nof data, up to $ 40 for more than 2 but not more than 4 megabytes\nof data, and up to $ 100 for more than 4 megabytes of data. If a\nvoluminous request is for electronic records and those records are\nin a portable document format, the public body may charge up to\n20 for not more than 80 megabytes of data, up to $ 40 for more\nthan 80 megabytes but not more than 160 megabytes of data, and\n\nup to $ 100 for more than 160 megabytes of data. If the responsive\nelectronic records are in both a portable document\nformat and not\nin a portable document format, the public body may separate the\nfees and charge the requester under both fee scales. \n\nFurther, section 6(b) of FOIA (5 ILCS 140/ 6(b) (West 2018)) sets forth fees for paper copies\n\nbased on page count, unlike section 6(a), which authorizes a public body to charge at most the\n\nConstruing FOIA as a whole, the statute does not require a public body to provide\n\nelectronic copies of paper records. Section 6(a) of FOIA specifically addresses providing\nelectronic copies of records \" maintained in an electronic format.\" The absence of similar\n\nlanguage stating that a public body shall provide electronic copies of records maintained in a\npaper format indicates that the General Assembly intended no such requirement. Further, section\n6(a) provides that a public body is only required to provide copies of records maintained\nelectronically in a specified electronic format if it is \" feasible\" to do so. If the definition of\ncopying\" in section 2(d) imposed a blanket obligation on public bodies to reproduce all records\nby any means \" available\" to a public body, as you appear to assert, then the provisions in section\n6(a) limiting the extent of the obligation to provide electronic records in a specified electronic\nformat to when it is \" feasible\" would be superfluous. \n\nSimilarly, section 6(a- 5) of FOIA provides fees only for electronic copies of\nelectronic records, in cases of voluminous requests. The notion that a public body would be\nrequired to scan in paper records responsive to a voluminous request would have an absurd\n\nresult: a public body would be able to charge up to $ 100 for electronic copies of electronic\nrecords, but no more than the cost of a recording medium for electronic copies of paper records, \ndespite the high probability that the effort and resources involved in making electronic copies of\npaper records would exceed the effort and resources involved in providing electronic copies of\nelectronic records. Such an absurd result must be rejected. See, for example, People v. Garcia, \n\n241 Ill. 2d 416, 421 (2011) (\"\n\nIt is always presumed that the legislature did not intend to cause\n\nabsurd, inconvenient, or unjust results.\"). \n\nConstruing FOIA as requiring public bodies to provide only paper copies of paper\n\nrecords does not conflict with section 2(d) of FOIA. To the contrary, this interpretation is\nharmonious with section 2(d) and the other provisions of FOIA in that section 2(d) merely\naccounts for various methods of reproduction depending on the circumstances. In other words, \nbecause the method of reproduction applicable to one type of record may not work for a different\ntype of record, the definition must be expansive enough to account for those differences. The\n\ndiscussion of copying in Hites v. Waubonsee Community College, 2016 IL App (2d) 150836, \n73, 56 N. E. 3d 1049, 1065 (2016) is irrelevant\n\nto the legal question here, as Hites did not\n\naddress whether a public body is required to make and provide electronic copies of records that it\nmaintains only in paper format.. Rather, the court discussed the unrelated notion that electronic\n\nFor all of these reasons, this office concludes that no further action is warranted in\n\nthis matter. This letter closes this file. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n59194 f no fi war mun\n\ncc: \n\nVia electronic mail\n\nMr. Steven Brown\n\nFOIA Officer\n\nVillage of Cambridge\n\n24 West Exchange Street\n\nCambridge, Illinois 61238\n\nadmnvoc@gmail. com"}
{"id":944,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2019-11-12","case_number":null,"request_numbers":["60222"],"title":"Chicago Public Schools' estimated response time for recurrent requester held reasonable","filename":"60222, issued November 12, 2019.pdf","rel_path":null,"word_count":813,"summary":"The requester challenged the Chicago Public Schools' (CPS) timeline for responding to a FOIA request for disciplinary records of security personnel. The PAC determined that the school district's estimated response time was not unreasonable given the volume of records requested.","plain_summary":"A requester asked Chicago Public Schools for five years of disciplinary records for ten different security guards. Because the requester was classified as a 'recurrent requester,' the school district took extra time to process the request, which the requester complained about to the Attorney General. The Attorney General's office reviewed the situation and decided the school district's timeline was acceptable, so they closed the case.","holding":"The PAC concluded that no further action was warranted because the public body's estimated response time was reasonable under the circumstances.","legal_question":"Whether a public body's estimated time for responding to a FOIA request from a recurrent requester is reasonable under section 3 of FOIA.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Public Schools","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"fees","subject_description":"The request sought disciplinary records and incident reports for ten school security personnel over a five-year period.","ocr_status":"ok","ocr_quality":93.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.2/60222%2C%20issued%20November%2012%2C%202019.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","response time","disciplinary records","school records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 12,  2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request\n\nfor Review — 2019 PAC 60222;  CPS #  N007365- 091919\n\nDear\n\nThis determination letter is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)).  For the reasons set forth below,  the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn September 19,  2019,  you submitted a FOIA request\n\nto the Chicago Public\n\nSchools ( CPS)  seeking: \n\nThe documents relating to the disciplinary records and/ or incident\nreports for these Steinmetz High School security personnel: \na.  Anselmo Chaparro b.  Noah Washington c.  Luis Jaime Lopez\n\nd.  William Daugherty e.  Leonard Guziec f. Marcelo Rosa I11\ng. Taniah Hall h.  Yvonne Gonzalez I.  Sophia Matarazzo j.  Samuel\nPearson who was assigned to Steinmetz High School for the\nfollowing school years:  2015- 16 through 2019- 20. 1'\n\ni\n\nThat same day,  CPS notified you that you are a recurrent\nFOIA ( 5 ILCS 140/ 2( g) ( West 2018)),  and would,  therefore,  send you an initial response within\n21 days after receipt of your FOIA request.  CPS also informed you that,  among other things,  its\ninitial response will \"[ n] otify you of an estimate of the time required to provide the requested\n\nrequester pursuant\n\nto section 2( g)  of\n\n2019). \n\nFOIA request via the Chicago Public Schools FOIA Center from\n\nSeptember 19, \n\n500 South Second Street,  Springfield- \nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago.  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave..  Carbondale. \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877) 675- 9339 •  Fax: ( 618)  529- 6416\n\n\fNovember\n\n12,  2019\n\nPage 2\n\nrecords\"  and that \" the response time will be within a reasonable period considering the size and\ncomplexity of your request[.]\ndate for a response * * * \n\ni2 On October 18,  2019,  CPS responded to you that \" the reasonable\n\nis December 20,  2019.\" 3 Later that day,  you submitted a Request\n\nfor\n\nReview asking this office \" to persuade CPS to respond with the requested information to me in a\ntimelier manner.\" 4\n\nSection 3. 2( a)  of FOIA ( 5 ILCS 140/ 3. 2( a) ( West 2018))  provides that: \n\nA] public body shall respond to a request from a recurrent\nrequester, as defined in subsection ( g)  of Section 2,  within 21\nbusiness days after receipt.  The response shall ( i)  provide to\n\nthe requester an estimate of the time required by the public\nbody to provide the records requested and an estimate of the\nfees to be charged,  which the public body may require the person\nto pay in full before copying the requested documents, ( ii) deny the\nto one or more of the exemptions\nrequest pursuant\n\nset out\n\nin this\n\nAct, (iii) notify the requester that the request is unduly burdensome\nand extend an opportunity to the requester\nto reduce the\nrequest to manageable proportions, or ( iv) provide the records\n\nto attempt\n\nrequested. \n\nIn addition,  section 3. 2( c)  of FOIA (5 ILCS 140/ 3. 2( c) ( West 2018))  provides that \"[ u] nless the\nrecords are exempt from disclosure,  a public body shall comply with a request within a\nreasonable period considering the size and complexity of the request.\" \n\nYour Request\n\nfor Review does not dispute that you qualify as a recurrent\n\nrequester under section 2( g)  of FOIA.  Your request broadly sought \" documents relating to the\ndisciplinary records and/ or incident reports\"  of 10 individuals over a five- year period.  We have\nnot been provided any information that indicates a response by December 20,  2019.  is\nunreasonable under these circumstances.  Accordingly,  this office concludes that that no further\naction is warranted in this matter. \n\n2E -mail\nChicago Public Schools FOIA Center,  to [\n\nSeptember 19,  2019). \n\nfrom Elyssa Shull,  Freedom of Information Officer,  Chicago Public Schools,  via the\n\nChicago Public Schools FOIA Center,  to [\n\n3E -mail from Elyssa Shull,  Freedom of Information Officer,  Chicago Public Schools.  via the\nOctober\n\n18.  2019). \n\n4E -mail from\n\nto the Public Access Counselor ( October 18,  2019). \n\n\fNovember 12,  2019\n\nPage 3\n\nThis file is closed.  If you have any questions,  please contact me at 312- 814- 5201\n\nor at the Chicago address listed on the bottom of the first page of this letter. \n\nVery t\n\ny yours, \n\nE TEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n60222 f no fi war sd\n\ncc: \n\nVia electronic mail\n\nMr.  Andrew Mason\n\nFOIA Officer\n\nChicago Public Schools\n\nOne North Dearborn Street,  9th Floor\n\nChicago,  Illinois 60602\n\namason19@cps.\n\nedu\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary records for school security personnel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60222/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 12, 2019\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 60222; CPS # N007365- 091919\n\nDear\n\nThis determination letter is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2018)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn September 19, 2019, you submitted a FOIA request\n\nto the Chicago Public\n\nSchools (CPS) seeking: \n\nThe documents relating to the disciplinary records and/ or incident\nreports for these Steinmetz High School security personnel: \na. Anselmo Chaparro b. Noah Washington c. Luis Jaime Lopez\n\nd. William Daugherty e. Leonard Guziec f. Marcelo Rosa I11\ng. Taniah Hall h. Yvonne Gonzalez I. Sophia Matarazzo j. Samuel\nPearson who was assigned to Steinmetz High School for the\nfollowing school years: 2015- 16 through 2019- 20. 1'\n\ni\n\nThat same day, CPS notified you that you are a recurrent\nFOIA (5 ILCS 140/ 2(g) (West 2018)), and would, therefore, send you an initial response within\n21 days after receipt of your FOIA request. CPS also informed you that, among other things, its\ninitial response will \"[ n] otify you of an estimate of the time required to provide the requested\n\nrequester pursuant\n\nto section 2(g) of\n\n2019). \n\nFOIA request via the Chicago Public Schools FOIA Center from\n\nSeptember 19, \n\nrecords\" and that \" the response time will be within a reasonable period considering the size and\ncomplexity of your request[.]\ndate for a response * * * \n\ni2 On October 18, 2019, CPS responded to you that \" the reasonable\n\nis December 20, 2019.\" 3 Later that day, you submitted a Request\n\nfor\n\nReview asking this office \" to persuade CPS to respond with the requested information to me in a\ntimelier manner.\" 4\n\nSection 3. 2(a) of FOIA (5 ILCS 140/ 3. 2(a) (West 2018)) provides that: \n\nA] public body shall respond to a request from a recurrent\nrequester, as defined in subsection (g) of Section 2, within 21\nbusiness days after receipt. The response shall (i) provide to\n\nthe requester an estimate of the time required by the public\nbody to provide the records requested and an estimate of the\nfees to be charged, which the public body may require the person\nto pay in full before copying the requested documents, (ii) deny the\nto one or more of the exemptions\nrequest pursuant\n\nset out\n\nin this\n\nAct, (iii) notify the requester that the request is unduly burdensome\nand extend an opportunity to the requester\nto reduce the\nrequest to manageable proportions, or (iv) provide the records\n\nto attempt\n\nrequested. \n\nIn addition, section 3. 2(c) of FOIA (5 ILCS 140/ 3. 2(c) (West 2018)) provides that \"[ u] nless the\nrecords are exempt from disclosure, a public body shall comply with a request within a\nreasonable period considering the size and complexity of the request.\" \n\nYour Request\n\nfor Review does not dispute that you qualify as a recurrent\n\nrequester under section 2(g) of FOIA. Your request broadly sought \" documents relating to the\ndisciplinary records and/ or incident reports\" of 10 individuals over a five- year period. We have\nnot been provided any information that indicates a response by December 20, 2019. is\nunreasonable under these circumstances. Accordingly, this office concludes that that no further\naction is warranted in this matter. \n\n2E -mail\nChicago Public Schools FOIA Center, to [\n\nSeptember 19, 2019). \n\nfrom Elyssa Shull, Freedom of Information Officer, Chicago Public Schools, via the\n\nChicago Public Schools FOIA Center, to [\n\n3E -mail from Elyssa Shull, Freedom of Information Officer, Chicago Public Schools. via the\n\nThis file is closed. If you have any questions, please contact me at 312- 814- 5201\n\nor at the Chicago address listed on the bottom of the first page of this letter. \n\nVery t\n\ny yours, \n\nE TEINBERG\n\nAssistant Attorney General\nPublic Access Bureau\n\n60222 f no fi war sd\n\ncc: \n\nVia electronic mail\n\nMr. Andrew Mason\n\nFOIA Officer\n\nChicago Public Schools\n\nOne North Dearborn Street, 9th Floor\n\nChicago, Illinois 60602\n\namason19@cps.\n\nedu"}
{"id":945,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-10","case_number":null,"request_numbers":["60599"],"title":"Chicago Police Department did not violate FOIA by withholding body camera footage under 7(1)(d)","filename":"60599, issued January 10, 2020.pdf","rel_path":null,"word_count":1739,"summary":"The requester sought body camera footage from a search warrant execution, and the PAC determined that the Chicago Police Department did not violate FOIA by denying the request based on law enforcement exemptions.","plain_summary":"A journalist requested police body camera footage from a search warrant execution at a private home. The Chicago Police Department denied the request, citing law enforcement exemptions. The Attorney General's office agreed that the police department did not violate the law, noting that the department is not required to release the footage even if the subjects of the video provide consent.","holding":"The Chicago Police Department did not violate FOIA by denying the request for body camera footage from private residences.","legal_question":"Whether the Chicago Police Department violated FOIA by withholding body camera footage from a search warrant execution under the law enforcement exemptions.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(i)","7(1)(d)(ii)"],"public_body":"Chicago Police Department","requesting_party":"Ms. Samah Assad, WBBM-TV Chicago","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request involved body camera footage captured during the execution of a search warrant at a private residence.","ocr_status":"ok","ocr_quality":95.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Flagged-reasonable-expectation-of-privacy/60599%2C%20issued%20January%2010%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","search warrant","law enforcement exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSIAM OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJanuary 10,  2020\n\nVia electronic mail\n\nMs.  Samah Assad\n\nWBBM- TV Chicago\n\nInvestigative Producer\n\nCBS 2 Broadcast Center\n\n22 West Washington Street\n\n[street address redacted for site publication -- see original PDF]\nsfassad@cbs.\n\ncom\n\nVia electronic mail\n\nMs.  Dana O' Malley\nAssistant General Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\nChicago,  Illinois 60653- 1020\n\npacola@chicagopolice. org\n\nRE:  FOIA Requests for Review — 2019 PAC 60575;  CPD No.  P516747\n2019 PAC 60599;  CPD No. P514119\n\nDear Ms.  Assad and Ms.  O' Malley: \n\nThis determination is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018))  as to 2019 PAC 60599 and section\n9. 5( 0 of FOIA ( 5 ILCS 140/ 9. 5( 0 (West 2018))  as to 2019 PAC 60575.  For the reasons set forth\nbelow,  the Public Access Bureau concludes that the Chicago Police Department ( CPD)  did not\nviolate FOIA by denying Ms.  Samah Assad' s FOIA requests for body camera footage from\nprivate residences. \n\nOn August 12,  2019,  Ms. Assad submitted a FOIA request to CPD seeking copies\n\nof \"any and all dash camera video and/ or body camera video captured during the execution of a\nsearch warrant at [ a specific residence]  on Aug.  5,  2019.\" 1 On November 13,  2019,  CPD denied\n\nAugust 12,  2019). \n\nE- mail\n\nfrom Samah Assad,  WBBM-  TV CHICAGO,  Investigative Producer,  to [ CPD FOIA] \n\n500 South Second Street,  Springfield. \n\nIllinois 62701 • (\n\n217)  782- 1090 • ' FIN: (877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago.  Illinois 60601 • ( 31 _2)  814- 3000 •  TI(\n\n800)  064- 3013 •  Fax: ( 312)  814- 3806 - \n\n601 South university Ave..  Carbondale. \n\nIL 62001 • (\n\n618)  520- 6400 •  T (\n\n877)  675- 9539 •  Fax ( 618)  529- 6416\n\n\fMs. Samah Assad\n\nMs.  Dana O' Malley\nJanuary 10,  2020\nPage 2\n\nthe request\n140/ 7( 1)(\n\nin its entirety pursuant\n\nto sections 7( 1)( a),  7( 1)( c),  and 7( 1)( d)  of FOIA ( 5 ILCS\n\n1)( d) ( West 2018),  as amended by Public Act 101- 455,  effective August 23, \n2019).  In connection with section 7( 1)( a),  CPD cited section 10- 20( b)  of the Law Enforcement\n\nc), (\n\na), (\n\n1)(\n\nOfficer -Worn Body Camera Act ( Body Camera Act) ( 50 ILCS 706/ 10- 20( b) ( West 2018)).  The\nfollowing day,  Ms.  Samah submitted a Request for Review ( 2019 PAC 60599)  contesting CPD' s\ndenial.  She explained that her news station had been reporting on raids of the wrong homes and\n\nstated: \n\nIn this FOIA,  I requested body camera footage from a\nwrong raid on an innocent\nfamily' s home where children were\npresent.  The family alleges the officers pointed guns at them, \nincluding in the direction of a 3 - month- old baby.  While there may\nhave been no arrests,  it can be argued that police did in fact use\nforce by pointing guns. 121\n\nIn addition,  on August 21,  2019,  Ms.  Assad submitted another FOIA request\n\nto\n\nCPD seeking body camera footage for a different\ndenied the request,  again citing section 7( 1)( a)  of FOIA in connection with the Body Camera\nfor Review ( 2019 PAC 60575) \nAct.  On November\n\n18,  2019,  Ms.  Assad submitted a Request\n\nresidence.  On November\n\n11,  2019,  CPD\n\ncontesting that denial\n\ntoo.  She stated: \n\nIn this FOIA,  I requested body camera footage from a\nwrong raid on an innocent woman' s home who was naked and\nhandcuffed.  She said officers pointed guns at her.  While she may\nit can be argued that police did in fact use\nnot have been arrested, \n\nforce by pointing guns at her and handcuffing her— all events the\npolice department has not denied to have occurred.  In addition,  we\n\nare aware the subject of the video has filed a FOIA request as\nwell.[31\n\nOn November 21,  2019,  this office forwarded a copy of Ms.  Assad' s latter\n\nRequest\n\nfor Review to CPD and asked it to provide copies of the responsive records for this\n\noffice' s confidential\n\nreview,  together with a detailed explanation for its denial.  On November 22, \n\n2019,  CPD provided those materials.  On that same date,  an Assistant Attorney General\nPublic Access Bureau e- mailed CPD asking whether\n\nin the\nit would be willing to provide Ms.  Assad\n\nBureau] ( November 14,  2019). \n\nE- mail\n\nfrom Samah Assad,  WBBM- TV Chicago, \n\nInvestigative Producer, \n\nto Public Access\n\nBureau] ( November\n\n12,  2019). \n\nE- mail from Samah Assad,  WBBM- TV Chicago,  Investigative Producer,  to Public Access\n\n\fMs.  Samah Assad\n\nMs.  Dana O' Malley\nJanuary 10,  2020\nPage 3\n\nwith a copy of the body camera recording if the subject were to provide written consent.  CPD\nresponded that it would still deny the request pursuant to sections 7( 1)( d)( i)  and 7( 1)( d)( ii) of\nFOIA ( 5 ILCS 140/ 7( 1)( d)( i), (\n\n1)( d)( ii) (West 2018),  as amended by Public Act 101- 455, \n\neffective August 23,  2019).  CPD explained: \n\nA] fter conferring with the Civilian Office of Police Accountability\nCOPA\"),  COPA confirmed that premature disclosure of the\n\nrecording to the requestor or any other party would interfere with\ntheir open and active administrative enforcement proceeding. \nRegarding the factual basis underlying their denial under the\naforementioned FOIA exemptions,  COPA asserted that disclosing\nthe recording would interfere with their apprehension of pertinent\nwitnesses and COPA' s attempts to interview said witnesses\nregarding the recording.) 41\n\nLikewise,  although Ms.  Assad provided CPD with a release from the subject of the recording in\nher other Request for Review after CPD issued its response to this office' s inquiry letter,  CPD\nstated that it would still deny a FOIA request containing such a release because of COPA' s active\ninvestigation. \n\nOn November 25,  2019,  this office sent Ms.  Assad a copy of CPD' s response in\n\n2019 PAC 60575.  She did not submit a reply,  but did furnish a copy of written consent from the\nsubject of the recording on January 6,  2020. \n\nDISCUSSION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt\ndisclosure has the burden of proving by clear and convincing evidence that\n140/ 1. 2 ( West 2018). \n\nfrom\nit is exempt.\" \n\n5 ILCS\n\nSection 7. 5( cc)  of FOIA ( 5 ILCS 140/ 7. 5( cc) ( West 2018),  as amended by Public\nActs 101- 013,  effective June 12,  2019;  101- 027,  effective June 25,  2019;  101- 081,  effective July\n12,  2019;  101- 375,  effective' August 16,  2019;  101- 377,  effective August 16,  2019)  exempts\nfrom disclosure \"[ r] ecordings made under the Law Enforcement Officer -Worn Body Camera\nAct,  except\nto the extent authorized under that Act.\"  Section I 0- 20( b)( 2)  of the Body Camera\nAct provides,  in relevant part: \n\nDepartment,  Office of Legal Affairs,  to Steve Silverman ( November 22,  2019). \n\nE- mail\n\nfrom Yevgeniy (\" Eugene\")  Bolotnikov,  Associate Staff Attorney,  Chicago Police\n\n\fMs.  Samah Assad\n\nMs.  Dana O' Malley\nJanuary 10,  2020\nPage 4\n\nb)  Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\n\nInformation Act,  except\n\nthat: \n\n1)  if the subject of the encounter has a reasonable\n\nexpectation of privacy,  at the time of the recording,  any\nrecording which is flagged,  due to the filing of a complaint, \ndischarge of a firearm, use of force,  arrest or detention, or\n\nresulting death or bodily harm,  shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA)  the subject of. the encounter captured on\n\nthe recording is a victim or witness;  and\n\nB)  the law enforcement agency obtains\n\nwritten permission of the subject or the subject' s\n\nlegal representative; \n\nNothing in this subsection ( b)  shall require the disclosure of\nany recording or portion of any recording which would be exempt\nfrom disclosure under the Freedom of Information Act. \n\nUnder the plain language of this provision, if the subject is a victim who has a reasonable\nexpectation of privacy ( i. e.  because the body camera footage is of the inside of the subject' s\nhome),  and the footage has been flagged for reasons such as detention,  the footage is subject to\ndisclosure pursuant to FOIA only if the law enforcement agency has received the subject' s\nwritten permission.  Even with the subject' s permission,  however,  the law enforcement agency\nmay still assert any applicable FOIA exemptions to withhold the footage. \n\nIn these matters,  Ms.  Assad sought body camera recordings in which the subjects\n\nhad a reasonable expectation of privacy because they were inside their own homes.  CPD\nacknowledged that the body camera recording at issue in 2019 PAC 60575 was flagged because\nthe subject was detained,  and that the body camera recording at issue in the other Request\nReview would be flagged for the same reason.  Ms.  Assad did not submit written releases from\n\nfor\n\nthe subjects when she submitted her FOIA requests to CPD.  Therefore,  section 10- 20( b)( 2)  of\n\nthe Body Camera Act prohibited CPD from disclosing the body camera recordings in response to\nMs.  Assad' s requests.  Ms.  Assad' s subsequent sending of signed releases from the subjects to\nCPD would allow CPD to grant her requests\nthat the\n\nif it wishes,  but CPD has elected to assert\n\n\fs. Samah Assad\n\nMs.  Dana O' Malley\nJanuary 10,  2020\nPage 5\n\nrecordings are exempt from disclosure under sections 7( 1)( d)( i)  and 7( 1)( d)( ii) of FOIA.  If Ms. \n\nAssad resubmits her FOIA requests to CPD with signed releases from the subjects and CPD\n\ndenies her requests pursuant\nReview or FOIA lawsuit will be whether CPD proves by clear and convincing evidence that the\ndisclosure of the recordings would interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings or active administrative enforcement proceedings. \n\nthe question in any subsequent Request\n\nto those exemptions, \n\nfor\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion.  This letter closes the files.  If you have any\nquestions,  please contact me at ( 312)  814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n60575 f 75cc proper pd\n\n60599 f unf pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a search warrant execution","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-60599/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSIAM OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJanuary 10, 2020\n\nVia electronic mail\n\nMs. Samah Assad\n\nWBBM- TV Chicago\n\nInvestigative Producer\n\nCBS 2 Broadcast Center\n\n22 West Washington Street\n\n[street address redacted for site publication -- see original PDF]\nsfassad@cbs.\n\ncom\n\nVia electronic mail\n\nMs. Dana O' Malley\nAssistant General Counsel\n\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653- 1020\n\npacola@chicagopolice. org\n\nRE: FOIA Requests for Review — 2019 PAC 60575; CPD No. P516747\n2019 PAC 60599; CPD No. P514119\n\nDear Ms. Assad and Ms. O' Malley: \n\nThis determination is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2018)) as to 2019 PAC 60599 and section\n9. 5(0 of FOIA (5 ILCS 140/ 9. 5(0 (West 2018)) as to 2019 PAC 60575. For the reasons set forth\nbelow, the Public Access Bureau concludes that the Chicago Police Department (CPD) did not\nviolate FOIA by denying Ms. Samah Assad's FOIA requests for body camera footage from\nprivate residences. \n\nOn August 12, 2019, Ms. Assad submitted a FOIA request to CPD seeking copies\n\nof \"any and all dash camera video and/ or body camera video captured during the execution of a\nsearch warrant at [ a specific residence] on Aug. 5, 2019.\" 1 On November 13, 2019, CPD denied\n\nAugust 12, 2019). \n\nE- mail\n\nfrom Samah Assad, WBBM- TV CHICAGO, Investigative Producer, to [ CPD FOIA] \n\nthe request\n140/ 7(1)(in its entirety pursuant\n\nto sections 7(1)(a), 7(1)(c), and 7(1)(d) of FOIA (5 ILCS\n\n1)(d) (West 2018), as amended by Public Act 101- 455, effective August 23, \n2019). In connection with section 7(1)(a), CPD cited section 10- 20(b) of the Law Enforcement\n\nc), (a), (1)(Officer -Worn Body Camera Act (Body Camera Act) (50 ILCS 706/ 10- 20(b) (West 2018)). The\nfollowing day, Ms. Samah submitted a Request for Review (2019 PAC 60599) contesting CPD's\ndenial. She explained that her news station had been reporting on raids of the wrong homes and\n\nstated: \n\nIn this FOIA, I requested body camera footage from a\nwrong raid on an innocent\nfamily's home where children were\npresent. The family alleges the officers pointed guns at them, \nincluding in the direction of a 3 - month- old baby. While there may\nhave been no arrests, it can be argued that police did in fact use\nforce by pointing guns. 121\n\nIn addition, on August 21, 2019, Ms. Assad submitted another FOIA request\n\nto\n\nCPD seeking body camera footage for a different\ndenied the request, again citing section 7(1)(a) of FOIA in connection with the Body Camera\nfor Review (2019 PAC 60575) \nAct. On November\n\n18, 2019, Ms. Assad submitted a Request\n\nresidence. On November\n\n11, 2019, CPD\n\ncontesting that denial\n\ntoo. She stated: \n\nIn this FOIA, I requested body camera footage from a\nwrong raid on an innocent woman's home who was naked and\nhandcuffed. She said officers pointed guns at her. While she may\nit can be argued that police did in fact use\nnot have been arrested, \n\nforce by pointing guns at her and handcuffing her— all events the\npolice department has not denied to have occurred. In addition, we\n\nare aware the subject of the video has filed a FOIA request as\nwell.[31\n\nOn November 21, 2019, this office forwarded a copy of Ms. Assad's latter\n\nRequest\n\nfor Review to CPD and asked it to provide copies of the responsive records for this\n\noffice's confidential\n\nreview, together with a detailed explanation for its denial. On November 22, \n\n2019, CPD provided those materials. On that same date, an Assistant Attorney General\nPublic Access Bureau e- mailed CPD asking whether\n\nin the\nit would be willing to provide Ms. Assad\n\nBureau] (November 14, 2019). \n\nE- mail\n\nfrom Samah Assad, WBBM- TV Chicago, \n\nInvestigative Producer, \n\nwith a copy of the body camera recording if the subject were to provide written consent. CPD\nresponded that it would still deny the request pursuant to sections 7(1)(d)(i) and 7(1)(d)(ii) of\nFOIA (5 ILCS 140/ 7(1)(d)(i), (1)(d)(ii) (West 2018), as amended by Public Act 101- 455, \n\neffective August 23, 2019). CPD explained: \n\nA] fter conferring with the Civilian Office of Police Accountability\nCOPA\"), COPA confirmed that premature disclosure of the\n\nrecording to the requestor or any other party would interfere with\ntheir open and active administrative enforcement proceeding. \nRegarding the factual basis underlying their denial under the\naforementioned FOIA exemptions, COPA asserted that disclosing\nthe recording would interfere with their apprehension of pertinent\nwitnesses and COPA's attempts to interview said witnesses\nregarding the recording.) 41\n\nLikewise, although Ms. Assad provided CPD with a release from the subject of the recording in\nher other Request for Review after CPD issued its response to this office's inquiry letter, CPD\nstated that it would still deny a FOIA request containing such a release because of COPA's active\ninvestigation. \n\nOn November 25, 2019, this office sent Ms. Assad a copy of CPD's response in\n\n2019 PAC 60575. She did not submit a reply, but did furnish a copy of written consent from the\nsubject of the recording on January 6, 2020. \n\nDISCUSSION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt\ndisclosure has the burden of proving by clear and convincing evidence that\n140/ 1. 2 (West 2018). \n\nfrom\nit is exempt.\" \n\n5 ILCS\n\nSection 7. 5(cc) of FOIA (5 ILCS 140/ 7. 5(cc) (West 2018), as amended by Public\nActs 101- 013, effective June 12, 2019; 101- 027, effective June 25, 2019; 101- 081, effective July\n12, 2019; 101- 375, effective' August 16, 2019; 101- 377, effective August 16, 2019) exempts\nfrom disclosure \"[ r] ecordings made under the Law Enforcement Officer -Worn Body Camera\nAct, except\nto the extent authorized under that Act.\" Section I 0- 20(b)(2) of the Body Camera\n\nb) Recordings made with the use of an officer -worn body\n\ncamera are not subject to disclosure under the Freedom of\n\nInformation Act, except\n\nthat: \n\n1) if the subject of the encounter has a reasonable\n\nexpectation of privacy, at the time of the recording, any\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\n\nresulting death or bodily harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of. the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\n\nwritten permission of the subject or the subject's\n\nlegal representative; \n\nNothing in this subsection (b) shall require the disclosure of\nany recording or portion of any recording which would be exempt\nfrom disclosure under the Freedom of Information Act. \n\nUnder the plain language of this provision, if the subject is a victim who has a reasonable\nexpectation of privacy (i. e. because the body camera footage is of the inside of the subject's\nhome), and the footage has been flagged for reasons such as detention, the footage is subject to\ndisclosure pursuant to FOIA only if the law enforcement agency has received the subject's\nwritten permission. Even with the subject's permission, however, the law enforcement agency\nmay still assert any applicable FOIA exemptions to withhold the footage. \n\nIn these matters, Ms. Assad sought body camera recordings in which the subjects\n\nhad a reasonable expectation of privacy because they were inside their own homes. CPD\nacknowledged that the body camera recording at issue in 2019 PAC 60575 was flagged because\nthe subject was detained, and that the body camera recording at issue in the other Request\nReview would be flagged for the same reason. Ms. Assad did not submit written releases from\n\nfor\n\nthe subjects when she submitted her FOIA requests to CPD. Therefore, section 10- 20(b)(2) of\n\nthe Body Camera Act prohibited CPD from disclosing the body camera recordings in response to\nMs. Assad's requests. Ms. Assad's subsequent sending of signed releases from the subjects to\n\nrecordings are exempt from disclosure under sections 7(1)(d)(i) and 7(1)(d)(ii) of FOIA. If Ms. \n\nAssad resubmits her FOIA requests to CPD with signed releases from the subjects and CPD\n\ndenies her requests pursuant\nReview or FOIA lawsuit will be whether CPD proves by clear and convincing evidence that the\ndisclosure of the recordings would interfere with pending or actually and reasonably\ncontemplated law enforcement proceedings or active administrative enforcement proceedings. \n\nthe question in any subsequent Request\n\nto those exemptions, \n\nfor\n\nThe Public Access Counselor has determined that resolution of these matters does\n\nnot require the issuance of a binding opinion. This letter closes the files. If you have any\nquestions, please contact me at (312) 814- 6756. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n60575 f 75cc proper pd\n\n60599 f unf pd"}
{"id":946,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-03-03","case_number":null,"request_numbers":["61017"],"title":"Illinois Department of Public Health failed to conduct reasonable search for vaping death records","filename":"61017, issued March 3, 2020.pdf","rel_path":null,"word_count":1940,"summary":"The requester sought records regarding vaping-related deaths from the Illinois Department of Public Health, which the Department initially claimed were exempt or non-existent. The PAC determined the Department failed to conduct a reasonable search for responsive records.","plain_summary":"A journalist requested records from the Illinois Department of Public Health about specific vaping-related deaths. The PAC found that the Department did not do enough to look for these records and ordered them to conduct a proper search or explain why they could not find the documents. This ensures that public agencies cannot simply claim records don't exist without making a good-faith effort to locate them.","holding":"The Illinois Department of Public Health failed to conduct a reasonable search for records responsive to the FOIA request.","legal_question":"Whether the Illinois Department of Public Health conducted a reasonable search for records responsive to a FOIA request as required by section 3(a) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"Illinois Department of Public Health","requesting_party":"Mr. Jon Styf (Northwest Herald)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought documents related to four vaping-related deaths referenced in a Department press release.","ocr_status":"ok","ocr_quality":91.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Completeness-of-Search/61017%2C%20issued%20March%203%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","public health","vaping","FOIA request"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nA\" I\"\n\nI' ORNEY GENERAL\n\nMarch 3,  2020\n\nVia electronic mail\n\nMr. Jon Styf\n\nEditor\n\nNorthwest Herald\n\njstyf@shawmedia.com\n\nVia electronic mail\n\nMs.  Lisa Reynolds\n\nActive Freedom of Information Officer\n\nIllinois Department of Public Health\n\n535 West Jefferson,  5th Floor\n\n[street address redacted for site publication -- see original PDF]\nLisa. Reynolds@illinois. gov\n\nRE:  FOIA Request\n\nfor Review — 2019 PAC 61017\n\nDear Mr.  Styf and Ms.  Reynolds: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)).  For the reasons discussed below, the\nPublic Access Bureau concludes that the Illinois Department of Public Health (Department) \n\nfailed to conduct a reasonable search for records responsive to Mr. Jon Styfs FOIA request. \n\nBACKGROUND\n\nOn November 18,  2019,  Mr. Styf, on behalf of the Northwest Herald,  submitted a\n\nFOIA request to the Department following up on his prior FOIA request regarding vaping- \nrelated deaths, which the Department had deemed vague.  This time,  he specified that he was\n\nseeking copies of any documents related to the four deaths referenced in a Department press\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 • ' FI' Y: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 Nest Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 • '\nI\" I' Y: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  IL 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax'( 618)  529- 6416\n\n\fMr.  Jon Styf\n\nMs. Lisa Reynolds\n\nMarch 3,  2020\n\nPage 2\n\nrelease: \" Fourth Illinois Resident Dies After Vaping Related Lung Injury.\"'  On December 4, \n2019,  the Department responded that it was unable to identify any responsive records.  On\nDecember\nresponse.  He argued that the Department clearly possessed location information pertaining to the\nvaping- related lung injury deaths. \n\n18,  2019,  Mr. Styf submitted the above - captioned Request\n\nfor Review contesting that\n\nOn December 19,  2019,  the Public Access Bureau sent a copy of the Request for\n\nIn particular,  this office asked the Department to explain the\n\nReview to the Department,  together with a letter requesting a detailed written explanation of how\nit searched for responsive records. \nsource materials it used in announcing four vaping-related lung injury deaths,  and to provide\ncopies of any such records for this office' s confidential\nDepartment submitted a written response and copies of certain records that it said it did not\nconsider responsive when responding to Mr.  Styfs FOIA request.  The Department asserted that\nthese records,  from its Office of Health Protection,  are medical records that are exempt from\ndisclosure under sections 7( 1)( a),  7( 1)( b),  and 7( 1)( c)  of FOIA ( 5 ILCS 140/ 7( 1)( a), ( 1)( b), ( 1)( c) \nWest 2018),  as amended by Public Act 101- 455,  effective August 23,  2019).  The Department\nalso stated that it did not have its Information Technology ( IT)  Section perform an e- mail search\nbecause Mr.  Styf had not identified search terms or a timeframe.  On January 17,  2020,  Mr.  Styf\nsubmitted a reply to the Department' s response,  maintaining his objections. \n\nreview.  On January 14,  2020,  the\n\nANALYSIS\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2018).  A public body\nthat receives a FOIA request is required to conduct a \" reasonable search tailored to the nature of\nthat]  particular request.\"  Campbell v.  U.S.  Department offustice,  164. F. 3d 20,  28 ( D. C.  Cir. \n1998).  A public body is not required to \" search every record system[,]\"  but it \" cannot limit its\nsearch to only one record system if there are others that are likely to turn up the requested\ninformation.\"  Oglesby v.  U.S. Department of the Army,  920 F. 2d 57,  68 ( D. C.  Cir.  1990). \n\nT] he adequacy of a FOIA search is generally determined not by the fruits of the search,  but by\n\nthe appropriateness of the methods used to carry out the search.\" \nCurrency,  315 F. 3d 311,  315 ( D. C.  Cir. 2003). \nterms that are reasonably calculated to locate all responsive records.  Hall v. C.I.A.,  668 F.  Supp. \n2d 172,  183- 84 ( D. D. C.  2009).  Although \"[ a]  requester is entitled only to records that an agency\nhas in fact chosen to create and retain[ ]\" ( Yeager v.  Drug Enforcement Administration,  678 F. 2d\n315,  321 ( D: C.  Cir.  1982)), \"[ a] t all times the burden is on the [ public body]  to establish the\n\nIn particular,  a public body must use search\n\nIturralde v.  Comptroller of\n\nIllinois Department of Public Health,  Fourth Illinois Resident Dies After Vaping Related Lung\nInjury ( Nov.  14,  2019),  http:// www. dph. illinois. gov/ news/ fourth- illinois- resident- dies- after- vaping- related- lung- \ninjury ( last visited March 2,  2020). \n\n\fMr.  Jon Styf\n\nMs.  Lisa Reynolds\n\nMarch 3,  2020\n\nPage 3\n\nadequacy of its search.\"  Rugiero v.  U.S. Department ofJustice,  257 F. 3d 534,  547 ( 6th Cir. \n2001). \n\nIn its response to this office, the Department asserted that in order for its IT\n\nSection to perform a search for responsive e- mails, \" requestors are required to be [ sic]  identify\nsearch terms,  as well as a time frame for the search.\"  2 The Department confirmed that it did not\n\nsearch for responsive e- mails because Mr.  Styf only reiterated his request when the Department\nasked him to specify search terms and a timeframe.  As to the Department' s Office of Health\nProtection,  the Department stated that it located potentially responsive medical records but\nprovided no information as to how it searched that office or any of its other divisions.  Moreover, \nthe Department did not answer this office' s question concerning the source materials for the press\nrelease.  Mr.  Styf replied: \n\nIn creating its press release on vaping related deaths in the\n\nstate,  the department most certainly had access to relevant data\ninvolving those deaths,  including documents which state where the\ndeaths occurred. \n\nIt is not up to me to locate the date or time frame of which\nthose emails or communications would have been sent,  those were\n\nclearly accessible to the team that was using public records to\ncreate a new public record. t31\n\nAs to the clarity of Mr.  Styfs FOIA request, \"[ a]  request to inspect or copy must\n\nreasonably identify a public record and not general data, information,  or statistics.\"  Chicago\nTribune Co.  v.  Department of Financial &  Professional Regulation,  2014 IL App ( 4th)  130427, \n33,  8 N. E. 3d 11,  19 ( 2014).  However,  a requester needs only to identify the records being\nrequested by describing their contents.  See Bocock v.  Will County Sheriff, 2018 IL App ( 3d) \n170330, ¶ 50,  100 N. E. 3d 649,  658 ( 2018) (\" Plaintiff identified the documents sought based upon\na description of their contents.  To require a citizen seeking public records to identify those\nrecords with any greater specificity would be in complete contravention of the public policy\nunderlying FOIA.\").  Requests for e- mails about particular matters frequently require public\nbodies to make judgment calls about the appropriate personnel to consult and queries to run.  A\nrequester generally is not required to specify search terms or a timeframe to reasonably describe\ne- mails concerning a particular subject matter.  Rather,  the public body is generally obligated to\n\nMetter from Lisa Reynolds,  Acting Freedom of Information Act Officer,  Illinois Department of\n\nPublic Health,  to Joshua M.  Jones,  Deputy Bureau Chief, Public Access Bureau,  Office of the Attorney General\nJanuary 14,  2020),  at 1. \n\n3E -mail\n\nfrom Jon Styf, Editor, Northwest Herald,  to Public Access [ Bureau] ( January 17,  2020). \n\n\fMr.  Jon Styf\n\nMs.  Lisa Reynolds\n\nMarch 3,  2020\n\nPage 4\n\nidentify the employees whose e- mail accounts are reasonably likely to contain responsive\nrecords,  and take measures reasonably calculated to locate such records ( i. e.  devising appropriate\nsearch parameters).  See Oglesby,  920 F. 2d at 68. \n\nIn this instance,  the subject of Mr. Styfs request was specific:  a particular press\n\nrelease referencing the recent deaths of four particular individuals.  The Department' s first press\nrelease about a vaping- related death was issued on August 23,  2019;  the second was issued\nOctober 24,  2019,  the third on October 31,  2019,  and the fourth on November 14,  2019. 4\nTherefore,  the Department had knowledge of the general three -to -four- month timeframe\n\nsurrounding the deaths.  Furthermore,  the Department,  not Mr. Styf, was in the position to know\nwhich of its employees were likely to have sent or received correspondence regarding vaping- \nrelated deaths and what keywords any such e- mails were likely to contain.  Mr. Styfs choice not\nto specify search terms or a timeframe did not relieve the Department of its obligation to perform\na search that was reasonably calculated to locate responsive e- mails.  Additionally,  the\nDepartment did not set forth information from which this office could conclude that it performed\na reasonable search for any other types of responsive records.  Although the Department\nacknowledged that it located certain potentially responsive records,  which,  this office has\nverified,  are medical records that are expressly exempt from disclosure under section 7( 1)( b)  of\nFOIA, 5 the Department did not explain how it searched the records of its Office of Health\nProtection.  For instance,  the Department did not explain which personnel\ndespite this office' s specific request for such information.  The Department also gave no\n\nit consulted and why, \n\nindication as to why the Office of Health Protection was its only division that was reasonably\nlikely to maintain responsive records,  and provided no information concerning the source\nmaterials for the press release.  For these reasons, the Public Access Bureau concludes that the\nDepartment violated FOIA by failing to conduct a reasonable search for responsive records. \n\nconduct a new search tailored to the full scope of the request.  The Department should then issue\n\nIn order to remedy its improper search,  this office requests that the Department\n\nresponse to the requester containing copies of the records it locates,  subject only\n\na supplemental\nto permissible redactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018),  as amended by\nPublic Act 101- 455,  effective August 23,  2019).  If the Department does not locate any further\n\nMarch 2,  2020). \n\nIllinois Department of Public Health,  http:// www. dph. illinois. gov/ search/ site/ vaping ( last visited\n\nSection 7( 1)( b)  of FOIA exempts from disclosure \"[ p] rivate information,  unless disclosure is\n\nrequired by another provision of this Act,  a State or federal\n140/ 2( c- 5) ( West 2018))  defines \" private information\"  as \" unique identifiers,\"  including \" medical records.\"  The\nrecords the Department provided to this office are plainly medical records,  as they document a patients diagnosis\nand treatment. \n\nlaw or a court order.\"  Section 2( c- 5)  of FOIA ( 5 ILCS\n\n\fMr. Jon Styf\n\nMs.  Lisa Reynolds\n\nMarch 3,  2020\n\nPage 5\n\nrecords responsive to the request,  it should provide the requester with a detailed explanation of\n\nhow it searched. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at ( 312)  814- 8413 or jjones@atg. state. il.us. \n\nVery truly yours, \n\nJOSHUA M.  JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n61017 f 71b proper 3a search improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Documents on four vaping-related deaths","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61017/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nA\" I\"\n\nI' ORNEY GENERAL\n\nMarch 3, 2020\n\nVia electronic mail\n\nMr. Jon Styf\n\nEditor\n\nNorthwest Herald\n\njstyf@shawmedia.com\n\nVia electronic mail\n\nMs. Lisa Reynolds\n\nActive Freedom of Information Officer\n\nIllinois Department of Public Health\n\n535 West Jefferson, 5th Floor\n\n[street address redacted for site publication -- see original PDF]\nLisa. Reynolds@illinois. gov\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 61017\n\nDear Mr. Styf and Ms. Reynolds: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). For the reasons discussed below, the\nPublic Access Bureau concludes that the Illinois Department of Public Health (Department) \n\nfailed to conduct a reasonable search for records responsive to Mr. Jon Styfs FOIA request. \n\nBACKGROUND\n\nOn November 18, 2019, Mr. Styf, on behalf of the Northwest Herald, submitted a\n\nFOIA request to the Department following up on his prior FOIA request regarding vaping- \nrelated deaths, which the Department had deemed vague. This time, he specified that he was\n\nseeking copies of any documents related to the four deaths referenced in a Department press\n\nrelease: \" Fourth Illinois Resident Dies After Vaping Related Lung Injury.\"' On December 4, \n2019, the Department responded that it was unable to identify any responsive records. On\nDecember\nresponse. He argued that the Department clearly possessed location information pertaining to the\nvaping- related lung injury deaths. \n\n18, 2019, Mr. Styf submitted the above - captioned Request\n\nfor Review contesting that\n\nOn December 19, 2019, the Public Access Bureau sent a copy of the Request for\n\nIn particular, this office asked the Department to explain the\n\nReview to the Department, together with a letter requesting a detailed written explanation of how\nit searched for responsive records. \nsource materials it used in announcing four vaping-related lung injury deaths, and to provide\ncopies of any such records for this office's confidential\nDepartment submitted a written response and copies of certain records that it said it did not\nconsider responsive when responding to Mr. Styfs FOIA request. The Department asserted that\nthese records, from its Office of Health Protection, are medical records that are exempt from\ndisclosure under sections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(a), (1)(b), (1)(c) \nWest 2018), as amended by Public Act 101- 455, effective August 23, 2019). The Department\nalso stated that it did not have its Information Technology (IT) Section perform an e- mail search\nbecause Mr. Styf had not identified search terms or a timeframe. On January 17, 2020, Mr. Styf\nsubmitted a reply to the Department's response, maintaining his objections. \n\nreview. On January 14, 2020, the\n\nANALYSIS\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2018). A public body\nthat receives a FOIA request is required to conduct a \" reasonable search tailored to the nature of\nthat] particular request.\" Campbell v. U.S. Department offustice, 164. F. 3d 20, 28 (D. C. Cir. \n1998). A public body is not required to \" search every record system[,]\" but it \" cannot limit its\nsearch to only one record system if there are others that are likely to turn up the requested\ninformation.\" Oglesby v. U.S. Department of the Army, 920 F. 2d 57, 68 (D. C. Cir. 1990). \n\nT] he adequacy of a FOIA search is generally determined not by the fruits of the search, but by\n\nthe appropriateness of the methods used to carry out the search.\" \nCurrency, 315 F. 3d 311, 315 (D. C. Cir. 2003). \nterms that are reasonably calculated to locate all responsive records. Hall v. C.I.A., 668 F. Supp. \n2d 172, 183- 84 (D. D. C. 2009). Although \"[ a] requester is entitled only to records that an agency\nhas in fact chosen to create and retain[ ]\" (Yeager v. Drug Enforcement Administration, 678 F. 2d\n315, 321 (D: C. Cir. 1982)), \"[ a] t all times the burden is on the [ public body] to establish the\n\nIn particular, a public body must use search\n\nIturralde v. Comptroller of\n\nIllinois Department of Public Health, Fourth Illinois Resident Dies After Vaping Related Lung\nInjury (Nov. 14, 2019), http:// www. dph. illinois. gov/ news/ fourth- illinois- resident- dies- after- vaping- related- lung- \n\nadequacy of its search.\" Rugiero v. U.S. Department ofJustice, 257 F. 3d 534, 547 (6th Cir. \n2001). \n\nIn its response to this office, the Department asserted that in order for its IT\n\nSection to perform a search for responsive e- mails, \" requestors are required to be [ sic] identify\nsearch terms, as well as a time frame for the search.\" 2 The Department confirmed that it did not\n\nsearch for responsive e- mails because Mr. Styf only reiterated his request when the Department\nasked him to specify search terms and a timeframe. As to the Department's Office of Health\nProtection, the Department stated that it located potentially responsive medical records but\nprovided no information as to how it searched that office or any of its other divisions. Moreover, \nthe Department did not answer this office's question concerning the source materials for the press\nrelease. Mr. Styf replied: \n\nIn creating its press release on vaping related deaths in the\n\nstate, the department most certainly had access to relevant data\ninvolving those deaths, including documents which state where the\ndeaths occurred. \n\nIt is not up to me to locate the date or time frame of which\nthose emails or communications would have been sent, those were\n\nclearly accessible to the team that was using public records to\ncreate a new public record. t31\n\nAs to the clarity of Mr. Styfs FOIA request, \"[ a] request to inspect or copy must\n\nreasonably identify a public record and not general data, information, or statistics.\" Chicago\nTribune Co. v. Department of Financial & Professional Regulation, 2014 IL App (4th) 130427, \n33, 8 N. E. 3d 11, 19 (2014). However, a requester needs only to identify the records being\nrequested by describing their contents. See Bocock v. Will County Sheriff, 2018 IL App (3d) \n170330, ¶ 50, 100 N. E. 3d 649, 658 (2018) (\" Plaintiff identified the documents sought based upon\na description of their contents. To require a citizen seeking public records to identify those\nrecords with any greater specificity would be in complete contravention of the public policy\nunderlying FOIA.\"). Requests for e- mails about particular matters frequently require public\nbodies to make judgment calls about the appropriate personnel to consult and queries to run. A\nrequester generally is not required to specify search terms or a timeframe to reasonably describe\ne- mails concerning a particular subject matter. Rather, the public body is generally obligated to\n\nMetter from Lisa Reynolds, Acting Freedom of Information Act Officer, Illinois Department of\n\nPublic Health, to Joshua M. Jones, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General\n\nidentify the employees whose e- mail accounts are reasonably likely to contain responsive\nrecords, and take measures reasonably calculated to locate such records (i. e. devising appropriate\nsearch parameters). See Oglesby, 920 F. 2d at 68. \n\nIn this instance, the subject of Mr. Styfs request was specific: a particular press\n\nrelease referencing the recent deaths of four particular individuals. The Department's first press\nrelease about a vaping- related death was issued on August 23, 2019; the second was issued\nOctober 24, 2019, the third on October 31, 2019, and the fourth on November 14, 2019. 4\nTherefore, the Department had knowledge of the general three -to -four- month timeframe\n\nsurrounding the deaths. Furthermore, the Department, not Mr. Styf, was in the position to know\nwhich of its employees were likely to have sent or received correspondence regarding vaping- \nrelated deaths and what keywords any such e- mails were likely to contain. Mr. Styfs choice not\nto specify search terms or a timeframe did not relieve the Department of its obligation to perform\na search that was reasonably calculated to locate responsive e- mails. Additionally, the\nDepartment did not set forth information from which this office could conclude that it performed\na reasonable search for any other types of responsive records. Although the Department\nacknowledged that it located certain potentially responsive records, which, this office has\nverified, are medical records that are expressly exempt from disclosure under section 7(1)(b) of\nFOIA, 5 the Department did not explain how it searched the records of its Office of Health\nProtection. For instance, the Department did not explain which personnel\ndespite this office's specific request for such information. The Department also gave no\n\nit consulted and why, \n\nindication as to why the Office of Health Protection was its only division that was reasonably\nlikely to maintain responsive records, and provided no information concerning the source\nmaterials for the press release. For these reasons, the Public Access Bureau concludes that the\nDepartment violated FOIA by failing to conduct a reasonable search for responsive records. \n\nconduct a new search tailored to the full scope of the request. The Department should then issue\n\nIn order to remedy its improper search, this office requests that the Department\n\nresponse to the requester containing copies of the records it locates, subject only\n\na supplemental\nto permissible redactions under section 7 of FOIA (5 ILCS 140/ 7 (West 2018), as amended by\nPublic Act 101- 455, effective August 23, 2019). If the Department does not locate any further\n\nMarch 2, 2020). \n\nIllinois Department of Public Health, http:// www. dph. illinois. gov/ search/ site/ vaping (last visited\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless disclosure is\n\nrequired by another provision of this Act, a State or federal\n140/ 2(c- 5) (West 2018)) defines \" private information\" as \" unique identifiers,\" including \" medical records.\" The\nrecords the Department provided to this office are plainly medical records, as they document a patients diagnosis\n\nrecords responsive to the request, it should provide the requester with a detailed explanation of\n\nhow it searched. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at (312) 814- 8413 or jjones@atg. state. il.us. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n61017 f 71b proper 3a search improper sa"}
{"id":947,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-03-11","case_number":null,"request_numbers":["61099"],"title":"City of Waukegan improperly withheld incident report under active investigation exemptions","filename":"61099, issued March 11, 2020.pdf","rel_path":null,"word_count":2071,"summary":"The requester sought an incident report from the City of Waukegan, which the City denied citing an active investigation; the PAC determined the City improperly withheld portions of the record.","plain_summary":"A law firm requested a police incident report from the City of Waukegan, but the City refused to provide it, claiming it was part of an active investigation. The Attorney General's office reviewed the request and found that the City was wrong to withhold the entire document. The City was ordered to release the non-exempt portions of the report.","holding":"The City of Waukegan improperly withheld portions of the requested incident report that did not qualify for the claimed exemptions.","legal_question":"Whether the City of Waukegan properly denied a FOIA request for an incident report under the exemption for records related to active investigations.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(i)","7(1)(d)(iv)"],"public_body":"City of Waukegan","requesting_party":"Ms. Gabriela Velazquez (Consumer Law Group, LLC)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought a complete police incident report regarding case number 2019-48357.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.15/61099%2C%20issued%20March%2011%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","active investigation","FOIA denial","incident report"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nMarch 11,  2020\n\nVia electronic mail. \n\nMs.  Gabriela Velazquez\n\nParalegal\n\nConsumer Law Group,  LLC\n6232 North Pulaski Road,  Suite 200\n\n[street address redacted for site publication -- see original PDF]\ngvelazquez@consumerlaw.\n\ncom\n\nVia electronic mail\n\nThe Honorable Janet L.  Kilkelly\nCity of Waukegan\nCity Clerk and FOIA Officer\n100 North Martin Luther King Jr., Avenue\nWaukegan,  Illinois 60085\n\nJanet. Kilkelly@waukeganil. gov\n\nRE:  FOIA Request for Review — 2019 PAC 61099;  2019- 48357\n\nDear Ms.  Velazquez and Ms.  Kilkelly: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 ( West 2018)).  For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Waukegan ( City) improperly\nwithheld certain portion of records responsive to Ms.  Gabriela Velazquez' s December 5,  2019, \n\nFOIA request. \n\nOn December 5,  2019,  Ms.  Velazquez,  on behalf of the Consumer Law Group, \n\nsubmitted a FOIA request to the City seeking the complete incident report for case number 2019- \n48357.  On December 13,  2019,  counsel for the City denied the request in its entirety pursuant\nto section 7( 1)( d)( i)  of FOIA ( 5 ILCS 140/ 7( 1)( d)( i) ( West 2018),  as amended by Public Act\n101- 455,  effective August 23,  2019).  Specifically,  the City asserted that this incident report\nshould not be disclosed because of an active investigation.  On December 16,  2019,  Ms. \n\nVelazquez submitted the above - referenced Request\n\nfor Review disputing the redaction of the\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois 60601 • (\n\n312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave..  Carbondale. \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Gabriela Velazquez\n\nThe Honorable Janet L.  Kilkelly\nMarch 11,  2020\n\nPage 2\n\ninformation concerning the incident and the victim, who she identified as her client, that\nwouldn' t compromise pending proceedings. \n\nOn January 21,  2020, this office sent a copy of the Request for Review to the City\n\nand asked it to provide unredacted copies of the responsive records for this office's confidential\n\nIn particular,  this office asked the City to explain how and the extent\n\nreview,  together with a detailed explanation of the legal and factual bases for the applicability of\nsection 7( 1)( d)( i). \nto which\ndisclosure of the incident report would interfere with the City Police Department' s active\ninvestigation.  On February 24,  2020,  counsel for the City provided this office with copies of the\ncomplete incident' report and its written answer.  Later that day,  this office forwarded a copy of\nthe City' s response letter to Ms.  Velazquez;  she did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 ( West 2018);  see also Southern Illinoisan v. \nIllinois Dept.  of Public Health,  218 I11.  2d 390,  415 ( 2006).  A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1. 2 ( West 2016).  The exemptions from disclosure are to be narrowly construed.  Lieber v. \nBoard of Trustees of Southern Illinois Univ.,  176 111.  2d 401,  408 ( 1997). \n\nSection 2. 15 of FOIA\n\nAs a threshold matter, the records in question document the arrests of two\n\nindividuals.  Section 2. 15( a)  of FOIA (5 ILCS 140/ 2. 15 ( West 2018),  as. amended by Public Act\n101- 433,  effective August 20,  2019)  generally requires the release of the following arrest\n\nrecords: \n\ni)  information that identifies the individual,  including the\n\nname,  age,  address,  and photograph,  when and if available; ( ii) \n\ninformation detailing any charges relating to the arrest; ( iii) the\ntime and location of the arrest; ( iv)  the name of the investigating or\narresting law enforcement agency; ( v)  if the individual\nincarcerated,  the amount of any bail or bond;  and ( vi)  if the\nindividual\n\nis incarcerated,  the time and date that the individual was\n\nis\n\nreceived into,  discharged from,  or transferred from the arresting\n\nagency' s custody. \n\nInformation referenced in subsections ( iii) through ( vi)  of section 2. 15( a)  may be withheld,  but\nonly if its \" disclosure would: ( i)  interfere with pending or actually and reasonably contemplated\n\n\fMs.  Gabriela Velazquez\n\nThe Honorable Janet L.  Kilkelly\nMarch 11,  2020\n\nPage 3\n\nlaw enforcement proceedings conducted by any law enforcement agency; ( ii) endanger the life or\nphysical safety of law enforcement or correctional personnel or any other person;  or ( iii) \ncompromise the security of any correctional\namended by Public Act 101- 433,  effective August 20,  2019. \n\nfacility.\"  5 ILCS 140/ 2. 15( c) ( West 2018),  as\n\nThus,  disclosure of the information in subsections ( i)  and ( ii) of section 2. 15( a)  is\n\nmandatory. \nIn this matter,  some of the documentation contained in the requested incident report, \nparticularly arrest cards and complaint citations identifying arrestees and charges,  are not among\nthe four types of arrest report\ndisclosure would interfere with a pending law enforcement proceeding.  Accordingly,  this office\nconcludes that,  at a minimum, the City improperly withheld the information listed in section\n2. 15( a)( i)  and ( ii)  of FOIA. \n\ninformation that may be withheld under section 2. 15( c)  if\n\nSection 7( 1)( d)( i)  of FOIA\n\nfrom disclosure: \n\nWith respect to the remaining information,  section 7( 1)( d)( i)  of FOIA exempts\n\nd)  Records in the possession of any public body created in\nthe course of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni)  interfere with pending or actually and reasonably\n\ncontemplated law enforcement proceedings conducted by any law\nenforcement or correctional agency that is the recipient of the\n\nrequest[.] \n\nThe classification of information as ' law enforcement'  or ' investigatory'  does not\n\nnecessarily foreclose access unless it can be shown,  in a particular case,  that disclosure would\ninterfere with law enforcement and would,  therefore,  not be in the public interest.\"  Baudin v. \n\nCity of Crystal Lake,  192I11.  App.  3d 530,  536 ( 2d Dist.  1989).  Conclusory statements that the\nto support\ndisclosure of records would obstruct a law enforcement proceeding are insufficient\nassertion of the pending law enforcement proceeding exemption.  Day v.  City of Chicago,  388\nI11.  App.  3d 70,  74- 77 ( 1st Dist.  2009).  Rather,  a public body must demonstrate how disclosure\nof records would interfere with or obstruct a criminal prosecution or investigation in order to\nproperly withhold records pursuant to section 7( 1)( d)( i)  of FOIA.  The Attorney General has\nissued a binding opinion concluding that the mere commencement of an investigation or\nprosecution does not constitute clear and convincing evidence that any records are exempt\ndisclosure.  I11.  Att' y Gen.  Pub.  Acc.  Op.  No.  17- 001,  issued March 14,  2017. \n\nfrom\n\nthe\n\n\fMs.  Gabriela Velazquez\n\nThe Honorable Janet L.  Kilkelly\nMarch 11,  2020\n\nPage 4\n\nIn her Request for Review, Ms. Velazquez explained that she no longer requires\n\nthe complete incident report but rather requests a redacted copy of this report from the City.  She\nmodified her request to include a report \" where any and all\ninterfere with law enforcement proceedings is REDACTED and where enough information about\n\ninformation that is suspected to\n\nthe incident and victim/ complainant is included without compromising any pending\n\nproceedings.\"' \n\nIn its response to this office,  counsel\n\nfor the City argued that disclosure of the\n\nincident report,  even redacted,  would interfere with Waukegan Police Department' s active\n\ninvestigation.  The City stated that: \n\nThe suspects involved in the case are currently still\nincarcerated\nand are suspected to have committed other crimes.  The suspects\n\nhave pending court dates on[,] \nand April 13th.  The report includes references to other cell phone\n\ntoday,  February 24th,  March 26th[,] \n\nrobberies and suspects that may have been involved.  The names of\nthose persons and the method used to commit other crimes is also\nin the report. J21\n\nThis office has reviewed the City's response as well as an unredacted copy of the\n\nrecords at issue.  Although its response was somewhat generalized,  the City did provide clear\nfacts and details about the status of the City' s Police Department' s investigation and described\nhow disclosure of some portions of the report would interfere with that investigation. \n\nSpecifically,  counsel for the City explained how release of information concerning any other\nsuspects and robberies that have yet to result in arrests could thwart the investigation into those\n\nsuspects and robberies.  However, the City has not demonstrated how the remaining information\nthat directly concerns the arrestees and the incidents for which they were arrested would interfere\nwith pending law enforcement proceedings conducted by the City' s Police Department. \nAccordingly,  this office concludes that the City has not sustained its burden of demonstrating by\nclear and convincing evidence that those portions of the records are exempt\nunder section 7( 1)( d)( i)  of FOIA. \n\nfrom disclosure\n\nTherefore,  this office requests that the City provide Ms. Velazquez with\n\ndocumentation responsive to her request that does not contain specific information regarding any\nother suspects who have not been arrested and any other incidents that not have resulted involved\nin this incident:  The City also may redact \" unique identifiers\"  that constitute \" private\ninformation\"  under section 7( 1)( b)  of FOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2018),  as amended by\n\nCounselor,  Office of the Attorney General ( December 16,  2019). \n\nLetter from Gabriela Velazquez,  Paralegal,  Consumer Law Group,  LLC,  to Public Access\n\nE- mail\nPublic Access Bureau ( February 24,  2020). \n\nfrom Witherspoon Legal\n\nto Christina Lucente- McCullough,  Assistant Attorney General, \n\n\fs. Gabriela Velazquez\n\nThe Honorable Janet L.  Kilkelly\nMarch 11,  2020\n\nPage 5\n\nPublic Act 101- 455,  effective August 23,  2019); 3 photos or identifying information of any\nindividuals in line- up photos who were not arrested pursuant to section 7( 1)( c) 4 ( 5 ILCS\n140/ 7( 1)( c) ( West 2018),  as amended by Public Act 101- 455,  effective August 23,  2019);  and\ninformation identifying any witnesses who provided information to police but were not arrested\nto section 7( 1)( d)( iv)  of FOIA ( 5 ILCS 140/ 7( I)( d)( iv) ( West 2018),  as amended by\npursuant\nPublic Act 101- 455,  effective August 23,  2019) 5 If any such information is redacted,  the City\nmust provide a written notice of denial that includes \" a detailed factual basis for the application\n\nof any exemption claimed[.]\" \n\n5 ILCS 140/ 9( a) ( West 2018). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at ( 312)  814- 5383,  clucentemccullough@atg. state. il. us,  or\nthe Chicago address listed on the first page of this letter. \n\nVery trujy your\n\nCPI-KISTINA M.  LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n61099 f 215 improper 71 di proper improper mun\n\n3FOIA defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number,  driver' s license\nnumber,  employee identification\n\nnumber,  biometric identifiers,  personal\n\nfinancial\n\ninformation,  passwords or other access codes,  medical\n\nrecords,  home\n\nor personal\n\ntelephone numbers,  and personal email addresses.  Private\n\ninformation also includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person.  5 ILCS 140/ 2( c- 5) ( West 2018). \n\nlicense plates,  except as\n\ninvasion of personal privacy if disclosed. \n\nSection 7( I)(\n\nc)  exempts from disclosure information that would constitute an unwarranted\n\nSection 7(\n\nI)( d)( iv) of FOIA exempts from disclosure information that would unavoidably\n\ndisclose the identity of a confidential source,  confidential\npersons who file complaints with or provide information to administrative, \n\ninformation furnished only by the confidential source,  or\nlaw enforcement,  or penal\n\ninvestigative, \n\nagencies[.]\" \n\n\fMs.  Gabriela Velazquez\n\nThe Honorable Janet L.  Kilkelly\nMarch 11,  2020\n\nPage 6\n\ncc: \n\nVia electronic mail\n\nMs.  Jennifer Witherspoon,  Esq. \nJ.  Witherspoon Legal &  Mediation Services\n\n32 North West Street, Suite 100\n\nWaukegan,  Illinois 60085\n\nwitherspoonlegal@gmail.\n\ncom\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police incident report for case 2019-48357","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61099/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nMarch 11, 2020\n\nVia electronic mail. \n\nMs. Gabriela Velazquez\n\nParalegal\n\nConsumer Law Group, LLC\n6232 North Pulaski Road, Suite 200\n\n[street address redacted for site publication -- see original PDF]\ngvelazquez@consumerlaw.\n\ncom\n\nVia electronic mail\n\nThe Honorable Janet L. Kilkelly\nCity of Waukegan\nCity Clerk and FOIA Officer\n100 North Martin Luther King Jr., Avenue\nWaukegan, Illinois 60085\n\nJanet. Kilkelly@waukeganil. gov\n\nRE: FOIA Request for Review — 2019 PAC 61099; 2019- 48357\n\nDear Ms. Velazquez and Ms. Kilkelly: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Waukegan (City) improperly\nwithheld certain portion of records responsive to Ms. Gabriela Velazquez's December 5, 2019, \n\nFOIA request. \n\nOn December 5, 2019, Ms. Velazquez, on behalf of the Consumer Law Group, \n\nsubmitted a FOIA request to the City seeking the complete incident report for case number 2019- \n48357. On December 13, 2019, counsel for the City denied the request in its entirety pursuant\nto section 7(1)(d)(i) of FOIA (5 ILCS 140/ 7(1)(d)(i) (West 2018), as amended by Public Act\n101- 455, effective August 23, 2019). Specifically, the City asserted that this incident report\nshould not be disclosed because of an active investigation. On December 16, 2019, Ms. \n\nVelazquez submitted the above - referenced Request\n\nfor Review disputing the redaction of the\n\ninformation concerning the incident and the victim, who she identified as her client, that\nwouldn' t compromise pending proceedings. \n\nOn January 21, 2020, this office sent a copy of the Request for Review to the City\n\nand asked it to provide unredacted copies of the responsive records for this office's confidential\n\nIn particular, this office asked the City to explain how and the extent\n\nreview, together with a detailed explanation of the legal and factual bases for the applicability of\nsection 7(1)(d)(i). \nto which\ndisclosure of the incident report would interfere with the City Police Department's active\ninvestigation. On February 24, 2020, counsel for the City provided this office with copies of the\ncomplete incident' report and its written answer. Later that day, this office forwarded a copy of\nthe City's response letter to Ms. Velazquez; she did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" \n5 ILCS 140/ 1. 2 (West 2018); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 I11. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1. 2 (West 2016). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois Univ., 176 111. 2d 401, 408 (1997). \n\nSection 2. 15 of FOIA\n\nAs a threshold matter, the records in question document the arrests of two\n\nindividuals. Section 2. 15(a) of FOIA (5 ILCS 140/ 2. 15 (West 2018), as. amended by Public Act\n101- 433, effective August 20, 2019) generally requires the release of the following arrest\n\nrecords: \n\ni) information that identifies the individual, including the\n\nname, age, address, and photograph, when and if available; (ii) \n\ninformation detailing any charges relating to the arrest; (iii) the\ntime and location of the arrest; (iv) the name of the investigating or\narresting law enforcement agency; (v) if the individual\nincarcerated, the amount of any bail or bond; and (vi) if the\nindividual\n\nis incarcerated, the time and date that the individual was\n\nis\n\nreceived into, discharged from, or transferred from the arresting\n\nagency's custody. \n\nInformation referenced in subsections (iii) through (vi) of section 2. 15(a) may be withheld, but\nonly if its \" disclosure would: (i) interfere with pending or actually and reasonably contemplated\n\nlaw enforcement proceedings conducted by any law enforcement agency; (ii) endanger the life or\nphysical safety of law enforcement or correctional personnel or any other person; or (iii) \ncompromise the security of any correctional\namended by Public Act 101- 433, effective August 20, 2019. \n\nfacility.\" 5 ILCS 140/ 2. 15(c) (West 2018), as\n\nThus, disclosure of the information in subsections (i) and (ii) of section 2. 15(a) is\n\nmandatory. \nIn this matter, some of the documentation contained in the requested incident report, \nparticularly arrest cards and complaint citations identifying arrestees and charges, are not among\nthe four types of arrest report\ndisclosure would interfere with a pending law enforcement proceeding. Accordingly, this office\nconcludes that, at a minimum, the City improperly withheld the information listed in section\n2. 15(a)(i) and (ii) of FOIA. \n\ninformation that may be withheld under section 2. 15(c) if\n\nSection 7(1)(d)(i) of FOIA\n\nfrom disclosure: \n\nWith respect to the remaining information, section 7(1)(d)(i) of FOIA exempts\n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\ni) interfere with pending or actually and reasonably\n\ncontemplated law enforcement proceedings conducted by any law\nenforcement or correctional agency that is the recipient of the\n\nrequest[.] \n\nThe classification of information as ' law enforcement' or ' investigatory' does not\n\nnecessarily foreclose access unless it can be shown, in a particular case, that disclosure would\ninterfere with law enforcement and would, therefore, not be in the public interest.\" Baudin v. \n\nCity of Crystal Lake, 192I11. App. 3d 530, 536 (2d Dist. 1989). Conclusory statements that the\nto support\ndisclosure of records would obstruct a law enforcement proceeding are insufficient\nassertion of the pending law enforcement proceeding exemption. Day v. City of Chicago, 388\nI11. App. 3d 70, 74- 77 (1st Dist. 2009). Rather, a public body must demonstrate how disclosure\nof records would interfere with or obstruct a criminal prosecution or investigation in order to\nproperly withhold records pursuant to section 7(1)(d)(i) of FOIA. The Attorney General has\nissued a binding opinion concluding that the mere commencement of an investigation or\n\nIn her Request for Review, Ms. Velazquez explained that she no longer requires\n\nthe complete incident report but rather requests a redacted copy of this report from the City. She\nmodified her request to include a report \" where any and all\ninterfere with law enforcement proceedings is REDACTED and where enough information about\n\ninformation that is suspected to\n\nthe incident and victim/ complainant is included without compromising any pending\n\nproceedings.\"' \n\nIn its response to this office, counsel\n\nfor the City argued that disclosure of the\n\nincident report, even redacted, would interfere with Waukegan Police Department's active\n\ninvestigation. The City stated that: \n\nThe suspects involved in the case are currently still\nincarcerated\nand are suspected to have committed other crimes. The suspects\n\nhave pending court dates on[,] \nand April 13th. The report includes references to other cell phone\n\ntoday, February 24th, March 26th[,] \n\nrobberies and suspects that may have been involved. The names of\nthose persons and the method used to commit other crimes is also\nin the report. J21\n\nThis office has reviewed the City's response as well as an unredacted copy of the\n\nrecords at issue. Although its response was somewhat generalized, the City did provide clear\nfacts and details about the status of the City's Police Department's investigation and described\nhow disclosure of some portions of the report would interfere with that investigation. \n\nSpecifically, counsel for the City explained how release of information concerning any other\nsuspects and robberies that have yet to result in arrests could thwart the investigation into those\n\nsuspects and robberies. However, the City has not demonstrated how the remaining information\nthat directly concerns the arrestees and the incidents for which they were arrested would interfere\nwith pending law enforcement proceedings conducted by the City's Police Department. \nAccordingly, this office concludes that the City has not sustained its burden of demonstrating by\nclear and convincing evidence that those portions of the records are exempt\nunder section 7(1)(d)(i) of FOIA. \n\nfrom disclosure\n\nTherefore, this office requests that the City provide Ms. Velazquez with\n\ndocumentation responsive to her request that does not contain specific information regarding any\nother suspects who have not been arrested and any other incidents that not have resulted involved\nin this incident: The City also may redact \" unique identifiers\" that constitute \" private\ninformation\" under section 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2018), as amended by\n\nCounselor, Office of the Attorney General (December 16, 2019). \n\nLetter from Gabriela Velazquez, Paralegal, Consumer Law Group, LLC, to Public Access\n\nPublic Act 101- 455, effective August 23, 2019); 3 photos or identifying information of any\nindividuals in line- up photos who were not arrested pursuant to section 7(1)(c) 4 (5 ILCS\n140/ 7(1)(c) (West 2018), as amended by Public Act 101- 455, effective August 23, 2019); and\ninformation identifying any witnesses who provided information to police but were not arrested\nto section 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(I)(d)(iv) (West 2018), as amended by\npursuant\nPublic Act 101- 455, effective August 23, 2019) 5 If any such information is redacted, the City\nmust provide a written notice of denial that includes \" a detailed factual basis for the application\n\nof any exemption claimed[.]\" \n\n5 ILCS 140/ 9(a) (West 2018). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (312) 814- 5383, clucentemccullough@atg. state. il. us, or\nthe Chicago address listed on the first page of this letter. \n\nVery trujy your\n\nCPI-KISTINA M. LUCENTE- MCCULLOUGH\n\nAssistant Attorney General\nPublic Access Bureau\n\n61099 f 215 improper 71 di proper improper mun\n\n3FOIA defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification\n\nnumber, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical\n\nrecords, home\n\nor personal\n\ntelephone numbers, and personal email addresses. Private\n\ninformation also includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. 5 ILCS 140/ 2(c- 5) (West 2018). \n\nlicense plates, except as\n\ninvasion of personal privacy if disclosed. \n\nSection 7(I)(c) exempts from disclosure information that would constitute an unwarranted\n\nSection 7(I)(d)(iv) of FOIA exempts from disclosure information that would unavoidably\n\ndisclose the identity of a confidential source, confidential\npersons who file complaints with or provide information to administrative, \n\ncc: \n\nVia electronic mail\n\nMs. Jennifer Witherspoon, Esq. \nJ. Witherspoon Legal & Mediation Services\n\n32 North West Street, Suite 100\n\nWaukegan, Illinois 60085\n\nwitherspoonlegal@gmail.\n\ncom"}
{"id":948,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-01-03","case_number":null,"request_numbers":["61177"],"title":"Plainfield CCSD 202 properly withheld teacher notes under student records exemption","filename":"61177, issued January 3, 2020.pdf","rel_path":null,"word_count":1125,"summary":"The requester sought anecdotal notes regarding student behavior from the Plainfield Community Consolidated School District No. 202, which the District denied citing undue burden and student privacy concerns. The PAC determined that the records were exempt from disclosure under the Illinois School Student Records Act (ISSRA) and closed the file.","plain_summary":"A requester asked a school district for teachers' notes about student behavior. The school district refused, arguing that the request was too broad and that the records contained private student information. The Attorney General's office agreed that the records are protected by student privacy laws and closed the case.","holding":"The District did not improperly deny the request because the records are protected from disclosure under the Illinois School Student Records Act.","legal_question":"Whether the school district properly withheld teacher anecdotal notes regarding students under FOIA and the Illinois School Student Records Act (ISSRA).","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3","5 ILCS 140/7.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(r)"],"public_body":"Plainfield Community Consolidated School District No. 202","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"student records","subject_description":"The request sought teacher anecdotal notes documenting specific observations of individual student behaviors, skills, and attitudes.","ocr_status":"ok","ocr_quality":95.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_r/Own-children-individual-student-incidents/61177%2C%20issued%20January%203%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["student records","school district","privacy","ISSRA"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 3,  2020\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request for Review — 2019 PAC 61177\n\nDear\n\nThis determination is issued pursuant to section 9. 5( c)  of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)).  For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn November 18,  2019,  you submitted a FOIA request to the Plainfield\n\nCommunity Consolidated School District No.  202 ( District)  seeking \"[ a] ny existing records of\nteachers anecdotal notes prepared byi1 five named District employees from January 1,  2018,  to\nthe date of the FOIA request.  You noted that \"' teacher anecdotal notes'  shall be defined,  in\n\npertinent part,  as:  records used to document specific observations of individual student\nbehaviors,  skills and attitudes as they relate to the outcome of learning objectives. i2 You stated\nthat \" this request\nemployees]  and does not include e- mail correspondence or routine academic performance\n\nis limited to formal written reports or notes prepared by the [ named District\n\nrecords compiled on all students. i3 On November 20,  2019,  the District informed you that your\nrequest was vague and unduly burdensome,  explaining that \"[\nformal reports on students every day.  To review all these records would be unduly burdensome\nunder [ s] ection 3( g)  of the FOIA [ 5 ILCS 140/ 3( g) ( West 2018),  as amended by Public Act 101.- \n081,  effective July 12,  2019].\"  Rather than invite you to narrow your request to more\n\nt] eachers take notes and provide\n\nPlainfield Community Consolidated School District 202 ( November 18,  2019). \n\nLetter from\n\nto Thomas A.  Hernandez,  Freedom of Information Act Officer, \n\n2Letter from\n\nto Thomas A.  Hernandez,  Freedom of Information Act Officer, \n\nPlainfield Community Consolidated School District 202 ( November\n\n18,  2019). \n\nPlainfield Community Consolidated School District 202 ( November 18,  2019). \n\nLetter\n\nfrom\n\nto Thomas A.  Hernandez,  Freedom of Information Act Officer, \n\n1\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fJanuary 3,  2.020\nPage 2\n\nmanageable proportions,  the District asserted that all of the records responsive to your request\n\nfrom disclosure pursuant\n\nare student records that are exempt\nto the Illinois School Student\nRecords Act ( ISSRA) ( 105 ILCS 10/ 6( a) ( West 2018))  and section 7. 5( r)  of FOIA ( 5 ILCS\n140/ 7. 5( r) ;(West 2018),  as amended by Public Acts 101- 013,  effective June 12,  2019;  101- 027, \neffective June 25,  2019;  101- 081,  effective July 12,  2019;  101- 375,  effective August 16,  2019; \n101- 377,  effective August 16,  2019;  101- 600,  effective December 6,  2019;  101- 620,  effective\nDecember' 20,  2019).  Your Request for Review challenged the District's assertion of 3( g)  and\nargued that the students'  identities could be redacted from the responsive records. \n\nSection 7. 5( r)  of FOIA exempts from disclosure \"[\n\ni] nformation prohibited from\n\nbeing disclosed by the [ ISSRA].\"  Section 6( a)  of ISSRA provides that \"[ n] o school student\nrecords or 'information contained therein may be released,  transferred,  disclosed or otherwise\ndisseminated,  except\"  to certain authorized parties who are irrelevant here.  Section 2( d)  of\nISSRA ( 105 ILCS 10/ 2( d) ( West 2018))  defines \" school student record\"  as \" any writing or other\nrecorded information concerning a student and by which a student may be individually\nidentified;  maintained by a school or at its direction or by an employee of a school,  regardless of\nhow or where the information is stored.\" ( Emphasis added.) \n\nIn Bowie v.  Evanston Community Consolidated School District No.  65,  128 Ill. \n\nidentifying information,  does not fall within the definition of a school student\n\n2d 373,  375 ( 1989)  parents of students requested student test scores and the race of each student\ntested for a five- year period.  The Illinois Supreme Court held that a \" masked record,  which\ndeletes individual\nrecord,  and is not prohibited from disclosure under the Act.\"  Bowie,  128 Ill. 2d at 379.  In Board\nofEducation of City of Chicago v.  Illinois Education Labor Relations Board, 2013 IL App ( 1st) \n122447, ¶ 19,  3 N.E.  3d 343,  350 ( 2013),  the Illinois Appellate Court distinguished student\ndisciplinary, records from masked test scores,  stating that \"[ a] ' masked'  record is one where any\ninformation, identifying a student has been deleted and the record is released for the purpose of\nreporting,  or planning.\"  The court held that ISSRA prohibited disclosure of\n\nresearch,  statistical\n\ntwo students'  disciplinary records because \" the mere redaction of the students'  surnames or\nreference to the students by their initials does not render\nLabor Relations Board, 2013 IL App ( 1st)  122447, ¶ 21,  3 N. E.  3d at 350. \n\nthe records ' masked.\"  Illinois Education\n\nYour FOIA request sought\n\nrecords documenting certain teachers' \" specific\n\nobservations of individual student behaviors, skills and attitudesi4 for nearly two years.  Unlike\nthe test score data of a large group of students at issue in Bowie,  which could be readily masked\nby redacting the students'  names and scrambling the scores,  your request sought highly specific\ninformation pertaining to individual students which was compiled by certain teachers for a\ndiscrete timeframe.  Redacting the names alone would not suffice to prevent the students from\n\nLetter from\n\nto Thomas A. Hernandez,  Freedom of Information Act Officer, \n\nPlainfield Community Consolidated School District 202 ( November\n\n18,  2019). \n\n\fJanuary 3,  2020\nPage 3\n\nbeing identified— parents,  students,  or other members of the public familiar with the teachers' \nclassrooms could ascertain the identities of students based on the specific circumstances\ndescribed in the notes or reports.  Because ISSRA specifically prohibits disclosure of records\nfrom which individual students could be identified,  the District did not improperly deny your\nrequest pursuant to section 7. 5( r) of FOIA.  Therefore,  no further action is necessary in this\n\nmatter. \n\nThis file is closed.  If you have any questions, please contact me at 217- 524- 7958\n\nor at the Springfield address listed on the bottom of the first page of this letter. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n61177fnofiwar\n\nsd\n\ncc: \n\nVia electronic mail\n\nMr.  Tom Hernandez\n\nDirector of Community Relations\nFOIA Officer\n\nPlainfield Community Consolidated School District No.  202\n15732 Howard Street\n\nPlainfield,  Illinois 60544\n\ntahernan@psd202.\n\norg\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Teacher anecdotal notes on student behaviors","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61177/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 3, 2020\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2019 PAC 61177\n\nDear\n\nThis determination is issued pursuant to section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2018)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted as to this matter. \n\nOn November 18, 2019, you submitted a FOIA request to the Plainfield\n\nCommunity Consolidated School District No. 202 (District) seeking \"[ a] ny existing records of\nteachers anecdotal notes prepared byi1 five named District employees from January 1, 2018, to\nthe date of the FOIA request. You noted that \"' teacher anecdotal notes' shall be defined, in\n\npertinent part, as: records used to document specific observations of individual student\nbehaviors, skills and attitudes as they relate to the outcome of learning objectives. i2 You stated\nthat \" this request\nemployees] and does not include e- mail correspondence or routine academic performance\n\nis limited to formal written reports or notes prepared by the [ named District\n\nrecords compiled on all students. i3 On November 20, 2019, the District informed you that your\nrequest was vague and unduly burdensome, explaining that \"[\nformal reports on students every day. To review all these records would be unduly burdensome\nunder [ s] ection 3(g) of the FOIA [ 5 ILCS 140/ 3(g) (West 2018), as amended by Public Act 101.- \n081, effective July 12, 2019].\" Rather than invite you to narrow your request to more\n\nt] eachers take notes and provide\n\nPlainfield Community Consolidated School District 202 (November 18, 2019). \n\nLetter from\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\n2 Letter from\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\nPlainfield Community Consolidated School District 202 (November\n\n18, 2019). \n\nPlainfield Community Consolidated School District 202 (November 18, 2019). \n\nLetter\n\nfrom\n\nto Thomas A. Hernandez, Freedom of Information Act Officer, \n\n1\n\nmanageable proportions, the District asserted that all of the records responsive to your request\n\nfrom disclosure pursuant\n\nare student records that are exempt\nto the Illinois School Student\nRecords Act (ISSRA) (105 ILCS 10/ 6(a) (West 2018)) and section 7. 5(r) of FOIA (5 ILCS\n140/ 7. 5(r);(West 2018), as amended by Public Acts 101- 013, effective June 12, 2019; 101- 027, \neffective June 25, 2019; 101- 081, effective July 12, 2019; 101- 375, effective August 16, 2019; \n101- 377, effective August 16, 2019; 101- 600, effective December 6, 2019; 101- 620, effective\nDecember' 20, 2019). Your Request for Review challenged the District's assertion of 3(g) and\nargued that the students' identities could be redacted from the responsive records. \n\nSection 7. 5(r) of FOIA exempts from disclosure \"[\n\ni] nformation prohibited from\n\nbeing disclosed by the [ ISSRA].\" Section 6(a) of ISSRA provides that \"[ n] o school student\nrecords or 'information contained therein may be released, transferred, disclosed or otherwise\ndisseminated, except\" to certain authorized parties who are irrelevant here. Section 2(d) of\nISSRA (105 ILCS 10/ 2(d) (West 2018)) defines \" school student record\" as \" any writing or other\nrecorded information concerning a student and by which a student may be individually\nidentified; maintained by a school or at its direction or by an employee of a school, regardless of\nhow or where the information is stored.\" (Emphasis added.) \n\nIn Bowie v. Evanston Community Consolidated School District No. 65, 128 Ill. \n\nidentifying information, does not fall within the definition of a school student\n\n2d 373, 375 (1989) parents of students requested student test scores and the race of each student\ntested for a five- year period. The Illinois Supreme Court held that a \" masked record, which\ndeletes individual\nrecord, and is not prohibited from disclosure under the Act.\" Bowie, 128 Ill. 2d at 379. In Board\nofEducation of City of Chicago v. Illinois Education Labor Relations Board, 2013 IL App (1st) \n122447, ¶ 19, 3 N.E. 3d 343, 350 (2013), the Illinois Appellate Court distinguished student\ndisciplinary, records from masked test scores, stating that \"[ a] ' masked' record is one where any\ninformation, identifying a student has been deleted and the record is released for the purpose of\nreporting, or planning.\" The court held that ISSRA prohibited disclosure of\n\nresearch, statistical\n\ntwo students' disciplinary records because \" the mere redaction of the students' surnames or\nreference to the students by their initials does not render\nLabor Relations Board, 2013 IL App (1st) 122447, ¶ 21, 3 N. E. 3d at 350. \n\nthe records ' masked.\" Illinois Education\n\nYour FOIA request sought\n\nrecords documenting certain teachers' \" specific\n\nobservations of individual student behaviors, skills and attitudesi4 for nearly two years. Unlike\nthe test score data of a large group of students at issue in Bowie, which could be readily masked\nby redacting the students' names and scrambling the scores, your request sought highly specific\ninformation pertaining to individual students which was compiled by certain teachers for a\ndiscrete timeframe. Redacting the names alone would not suffice to prevent the students from\n\nbeing identified— parents, students, or other members of the public familiar with the teachers' \nclassrooms could ascertain the identities of students based on the specific circumstances\ndescribed in the notes or reports. Because ISSRA specifically prohibits disclosure of records\nfrom which individual students could be identified, the District did not improperly deny your\nrequest pursuant to section 7. 5(r) of FOIA. Therefore, no further action is necessary in this\n\nmatter. \n\nThis file is closed. If you have any questions, please contact me at 217- 524- 7958\n\nor at the Springfield address listed on the bottom of the first page of this letter. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n61177fnofiwar\n\nsd\n\ncc: \n\nVia electronic mail\n\nMr. Tom Hernandez\n\nDirector of Community Relations\nFOIA Officer\n\nPlainfield Community Consolidated School District No. 202\n15732 Howard Street\n\nPlainfield, Illinois 60544\n\ntahernan@psd202.\n\norg"}
{"id":949,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-02-26","case_number":null,"request_numbers":["61358"],"title":"Town of Cicero did not violate FOIA by withholding police records under court order","filename":"61358, issued February 26, 2020.pdf","rel_path":null,"word_count":917,"summary":"The Invisible Institute requested records regarding police misconduct complaints, and the Town of Cicero withheld certain files citing a federal court confidentiality order. The PAC determined that the Town properly withheld the records because they were subject to a court-ordered prohibition on disclosure.","plain_summary":"The question was whether the Town of Cicero improperly withheld police disciplinary-file records under FOIA when a federal court's confidentiality order barred their disclosure. The Public Access Bureau held that the Town did not violate FOIA, because a public body does not violate the Act when it withholds records that a binding court order prohibits it from disclosing. The Town produced the underlying confidentiality order from a related federal lawsuit, and the Bureau confirmed with the Town's counsel that the withheld file related to the claims covered by that order, satisfying the Town's burden despite FOIA's general presumption of openness. This determination concerns the Town of Cicero's response to a request for closed police complaint/investigation records.","holding":"A public body does not violate FOIA by withholding records whose disclosure is prohibited by a valid, applicable court order.","legal_question":"Whether a public body may withhold records under FOIA when disclosure is prohibited by a federal court confidentiality order.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Town of Cicero","requesting_party":"Mr. Sam Stecklow (Invisible Institute)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought records related to closed complaints against police department employees.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/protective-orders/61358%2C%20issued%20February%2026%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","court order","confidentiality","FOIA denial"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 26,  2020\n\nVia electronic mail\n\nMr.  Sam Stecklow\n\nInvisible Institute\n\nExperimental Station\n\n[street address redacted for site publication -- see original PDF]\nfoia@invisibleinstitute. com\n\nVia electronic mail\n\nMs. Courtney P.  Willits, Esq. \nDel Galdo Law Group,  LLC\n1441 South Harlem Avenue\n\nBerwyn,  Illinois 60402\n\nwill its@dlglawgroup. com\n\nRE:  FOIA Request for Review — 2019 PAC 61358\n\nDear Mr.  Stecklow and Ms.  Willits: \n\nThis determination is issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 1) ( West 2018)).  For the reasons discussed below, this\noffice concludes that the Town of Cicero ( Town)  did not improperly deny records requested by\nMr. Sam Stecklow which are prohibited from being disclosed by a court order. \n\nOn December 26,  2019, Mr. Stecklow, on behalf of the Invisible Institute, \n\nto the Town seeking records related to complaints against sworn\n\nsubmitted a FOIA request\nemployees of the Town' s police department which were closed in 2017.  On January 2,  2020,  the\nTown provided certain records with redactions but withheld fifteen pages of records in their\nentireties,  citing as its basis a confidentiality order issued by a federal judge.  On January 3, \n2020,  Mr. Stecklow requested a copy of the confidentiality order and questioned why he did not\nreceive a copy of file No.  17- 014 that he said was referenced in a memorandum detailing which\nfiles were provided in the Town' s response to his request.  On January 7,  2020,  the Town\nresponded that File No.  17- 014 was not provided because disclosure was prohibited by the\n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217)  782- 1090 • \" 1\"\n\n1' Y: ( 877)  844-3461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TIT: (800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Alt.. Carbondale, \n\nIL 62901 • ( 618)  529- 6400 • ' IrY: (877)  675- 9339 •  Fax ( 618)  529- 6416 • \n\n\fMr. Sam Stecklow\n\nMs.  Courtney Willits\nFebruary 26,  2020\nPage 2\n\nfor\nconfidentiality order and that the Town did not possess a copy of that order. \nReview, Mr. Stecklow questioned whether the confidentiality order prohibits disclosure of File\nNo.  17- 014. \n\nIn his Request\n\nOn January 21,  2020,  this office sent a copy of the Request\nTown and asked it provide a copy of the protective order and a detailed explanation for the\nassertion that the protective order prohibits disclosure of the records at issue:  On January 27, \n2020,  counsel\nforwarded a copy of the Town' s response to Mr. Stecklow;  he did not submit a reply. \n\nfor the Town furnished those materials.  On January 28,  2020,  this office\n\nfor Review to the\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2018);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department ofPublic Health,  218 I11.  2d 390, 415 ( 2006).  A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt\n140/ 1. 2 ( West 2016). \n\nfrom disclosure.  5 ILCS\n\nThe Attorney General has previously determined,  in accordance with the United\nStates Supreme Court decision in GTE Sylvania,  Inc.  v.  Consumers Union of the United States, \n445 U. S.  375,  100 S.  Ct.  1194 ( 1980),  that a public body does not violate FOIA when it\nwithholds records pursuant to a binding court order; see also In re Appointment of Special\nProsecutor,  2017 IL App ( 1st)  161376, ¶ 53,  91 N. E.  3d 424,  435 ( 2017) ( City of Chicago ( City) \ndid not improperly withhold materials generated in connection with a grand jury investigation\nand special prosecution because two protective orders barred the release of grand jury materials\nby the City);  Ill. Att'y Gen.  Pub.  Acc.  Op.  No.  16- 009,  issued November 7,  2016, at 22- 23\nvillage did not improperly withhold records specifically prohibited from disclosure by court). \n\nThe Town provided this office with a copy of a confidentiality order to which the\n\nparties agreed in Bull v.  Town of Cicero,  Docket No.  19 - CV -01308 ( N.D.,  Ill.).  Among other\nthings,  the order designates as confidential all \" information and documents generated by, related\nto,  and/ or included in any investigation of any and all claims made by or against any of the\nindividual parties[.]\" t\nin the\nPublic Access Bureau, counsel for the Town confirmed that the records from File No.  17- 014\n\nIn a telephone conversation with an Assistant Attorney General\n\nthat were withheld pursuant\nto the agreed confidentiality order relate to the investigation of the\nunderlying claims in the lawsuit.  Because the confidentiality order broadly prohibits disclosure\nof such materials, this office concludes that the Town did not improperly withhold those records\nin its response to Mr. Stecklow' s request. \n\nBull v.  Town of Cicero,  Docket No.  19 -CV -01308 ( N. D.,  111.,  August 1,  2019) ( court order). \n\n\fr. Sam Stecklow\n\nMs.  Courtney Willits\nFebruary 26,  2020\nPage 3\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  If you have any questions,  please contact me at\n312)  814- 6756.  This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n61358 f prot order proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Closed complaint records about police employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61358/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 26, 2020\n\nVia electronic mail\n\nMr. Sam Stecklow\n\nInvisible Institute\n\nExperimental Station\n\n[street address redacted for site publication -- see original PDF]\nfoia@invisibleinstitute. com\n\nVia electronic mail\n\nMs. Courtney P. Willits, Esq. \nDel Galdo Law Group, LLC\n1441 South Harlem Avenue\n\nBerwyn, Illinois 60402\n\nwill its@dlglawgroup. com\n\nRE: FOIA Request for Review — 2019 PAC 61358\n\nDear Mr. Stecklow and Ms. Willits: \n\nThis determination is issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(1) (West 2018)). For the reasons discussed below, this\noffice concludes that the Town of Cicero (Town) did not improperly deny records requested by\nMr. Sam Stecklow which are prohibited from being disclosed by a court order. \n\nOn December 26, 2019, Mr. Stecklow, on behalf of the Invisible Institute, \n\nto the Town seeking records related to complaints against sworn\n\nsubmitted a FOIA request\nemployees of the Town's police department which were closed in 2017. On January 2, 2020, the\nTown provided certain records with redactions but withheld fifteen pages of records in their\nentireties, citing as its basis a confidentiality order issued by a federal judge. On January 3, \n2020, Mr. Stecklow requested a copy of the confidentiality order and questioned why he did not\nreceive a copy of file No. 17- 014 that he said was referenced in a memorandum detailing which\nfiles were provided in the Town's response to his request. On January 7, 2020, the Town\nresponded that File No. 17- 014 was not provided because disclosure was prohibited by the\n\nfor\nconfidentiality order and that the Town did not possess a copy of that order. \nReview, Mr. Stecklow questioned whether the confidentiality order prohibits disclosure of File\nNo. 17- 014. \n\nIn his Request\n\nOn January 21, 2020, this office sent a copy of the Request\nTown and asked it provide a copy of the protective order and a detailed explanation for the\nassertion that the protective order prohibits disclosure of the records at issue: On January 27, \n2020, counsel\nforwarded a copy of the Town's response to Mr. Stecklow; he did not submit a reply. \n\nfor the Town furnished those materials. On January 28, 2020, this office\n\nfor Review to the\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2018); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department ofPublic Health, 218 I11. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt\n140/ 1. 2 (West 2016). \n\nfrom disclosure. 5 ILCS\n\nThe Attorney General has previously determined, in accordance with the United\nStates Supreme Court decision in GTE Sylvania, Inc. v. Consumers Union of the United States, \n445 U. S. 375, 100 S. Ct. 1194 (1980), that a public body does not violate FOIA when it\nwithholds records pursuant to a binding court order; see also In re Appointment of Special\nProsecutor, 2017 IL App (1st) 161376, ¶ 53, 91 N. E. 3d 424, 435 (2017) (City of Chicago (City) \ndid not improperly withhold materials generated in connection with a grand jury investigation\nand special prosecution because two protective orders barred the release of grand jury materials\nby the City); Ill. Att'y Gen. Pub. Acc. Op. No. 16- 009, issued November 7, 2016, at 22- 23\nvillage did not improperly withhold records specifically prohibited from disclosure by court). \n\nThe Town provided this office with a copy of a confidentiality order to which the\n\nparties agreed in Bull v. Town of Cicero, Docket No. 19 - CV -01308 (N.D., Ill.). Among other\nthings, the order designates as confidential all \" information and documents generated by, related\nto, and/ or included in any investigation of any and all claims made by or against any of the\nindividual parties[.]\" t\nin the\nPublic Access Bureau, counsel for the Town confirmed that the records from File No. 17- 014\n\nIn a telephone conversation with an Assistant Attorney General\n\nthat were withheld pursuant\nto the agreed confidentiality order relate to the investigation of the\nunderlying claims in the lawsuit. Because the confidentiality order broadly prohibits disclosure\nof such materials, this office concludes that the Town did not improperly withhold those records\nin its response to Mr. Stecklow's request. \n\nBull v. Town of Cicero, Docket No. 19 -CV -01308 (N. D., 111., August 1, 2019) (court order). \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\n312) 814- 6756. This file is closed. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n61358 f prot order proper mun"}
{"id":950,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-02-25","case_number":null,"request_numbers":["61612"],"title":"Secretary of State properly charged corporate law fees for records, overriding FOIA","filename":"61612, issued February 25, 2020.pdf","rel_path":null,"word_count":879,"summary":"The requester challenged the fees charged by the Illinois Secretary of State for corporate records, arguing they violated FOIA fee provisions. The PAC determined that specific statutory fee schedules for corporate documents take precedence over FOIA's general fee provisions.","plain_summary":"A requester asked for corporate records from the Secretary of State and was charged a fee based on specific corporate laws. The requester argued these fees were too high under FOIA rules. The Attorney General's office ruled that because specific laws set the prices for these corporate documents, those laws override FOIA, and the fees were appropriate.","holding":"The Secretary of State properly charged fees for corporate records as mandated by the Business Corporation Act and the General Not for Profit Corporation Act, which supersede FOIA fee provisions.","legal_question":"Whether the fee provisions of the Business Corporation Act and the General Not for Profit Corporation Act take precedence over the fee provisions of FOIA when requesting corporate records from the Secretary of State.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Secretary of State's Office","requesting_party":"Mr. Arvin Boddie","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought corporate records for two entities and contested the $585.00 fee charged by the Secretary of State.","ocr_status":"ok","ocr_quality":93.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/Fee-fixed-by-statute/61612%2C%20issued%20February%2025%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","corporate records","Secretary of State","statutory fees"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nFebruary 25,  2020\n\nVia electronic mail\n\nMr. Arvin Boddie\n\nPost Office Box 288910\n\n[street address redacted for site publication -- see original PDF]\naboddieattyatlaw@sbcglobal.\n\nnet\n\nRE:  FOIA Request for Review — 2020 PAC 61612\n\nDear Mr.  Boddie: \n\nThis determination letter is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn January 17,  2020,  you submitted a FOIA request\n\nto the Illinois Secretary of\nState' s Office seeking printed records consisting of \"ALL records,  documents,  data and/ or other\ninformation ( including ELECTRONICALLY STORED INFORMATION)  relating to: \n1)  Entity\nNamed D' S MULTI COMPLEX;  2)  File Number 72264169;  3)  Entity Named JOHNSON\nFUNERAL SERVICES,  INC.;  and 4)  File Number 655988124.\"  On January 22,  2020,  the\nSecretary of State's Office responded that its Business Services Department located the articles\nof incorporation and an affidavit of compliance for D' s Multi Complex which could be obtained\nfor a fee of $5. 00 per record.  With respect\nto Johnson Funeral Services,  the Secretary of State' s\nOffice stated that it possessed twenty- three records,  including articles of incorporation,  annual\nreports,  amended annual\nreinstatements, \n\nreports,  register agent changes,  and involuntary dissolutions and\nfees amounted to\n\nthat could be obtained for $ 25. 00 per record.  The total\n\n585. 00.  You asked the State' s Attorney' s Office to reconsider,  stating that you represent a not- \n\nfor- profit organization and that the $ 585. 00 fee is inconsistent with section 6 of FOIA (5 ILCS\n140/ 6 ( West 2018)).  The Secretary of State' s Office responded that the fee is authorized by the\nBusiness Corporation Act (805 ILCS 5/ 1. 01 ( West 2018)),  and supersedes the fee provisions of\n\nFOIA.  The Secretary of State' s Office also stated that you could schedule an appointment\n\nto\n\nOffice of the Illinois Secretary of State ( January 17,  2020). \n\nFreedom of Information Act Request Form submitted by Arvin Boddie,  Attorney at Law,  to\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave.,  Carbondale,  Illinois 6290N ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fr. Arvin Boddie\n\nFebruary 25,  2020\nPage 2\n\nview the documents for no fee.  Your Request for Review asserts that the Secretary of State' s\nOffice improperly denied your request by imposing an unreasonable fee. \n\nSection 6( b)  of FOIA (5 ILCS 140/ 6( b) ( West 2018))  provides,  in pertinent part: \n\nExcept when a fee is otherwise fixed by statute,  each\n\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use,  by any person,  of the equipment of the public body to copy\nrecords.  No fees shall be charged for the first 50 pages of black and\n\nwhite,  letter or legal sized copies requested by a requester.  The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. * * * \n\nThe cost for certifying a record shall not\n\nexceed $ 1. ( Emphasis added.) \n\nThe plain language of section 6( b)  of FOIA permits a public body,  such as the Secretary of\nState' s Office,  to charge fees fixed by a statute other than FOIA.  Section 15. 15 of the Business\nCorporation Act of 1983 ( 805 ILCS 5/ 15. 15 ( West 2018))  provides that \"[ t] he Secretary of State\n\nshall charge and collect[ ]\" \n\na fee of $25. 00 for \" furnishing a copy or certified copy of any\n\ndocument,  instrument,  or paper relating to a corporation[.]\"  Section 115. 15 of the General Not\nfor Profit Corporation Act of 1986 ( 805 ILCS 105/ 115. 15 ( West 2018))  provides that \"[ t] he\nSecretary of State shall charge and collect[ ]\"  a fee of $5. 00 for \"furnishing a copy or certified\ncopy of any document,  instrument,  or paper relating to a corporation[.]\" \n\nJohnson Funeral Services,  Inc.  is registered as a business corporation and D' s\n\nMulti Complex is registered as a not- for-profit corporation.  Because the records you requested\n\nrelate to a business corporation and not- for- profit corporation,  the specific fees for those records\nfixed by the Business Corporation Act of 1983 and General Not for Profit Corporation Act of\n1986 are applicable and take precedence over the fee provisions of FOIA.  Accordingly,  this\noffice has determined that no further action is warranted in this matter. \n\nThis filed is closed.  If you have any questions,  please contact me at 312- 814- \n\n6756 or ssilverman@atg. state. il. us. \n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n\fMr.  Arvin Boddie\n\nFebruary 25,  2020\nPage 3\n\n61612fnofiwarsa\n\ncc: \n\nVia electronic mail\n\nMs.  Donna Leonard\n\nExecutive Counsel\n\nIllinois Secretary of State' s Office\n17 North State Street,  Suite 1169\n\nChicago,  Illinois 60602\n\ndleonard@ilsos. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Fees for corporate records from a secretary of state","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61612/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nFebruary 25, 2020\n\nVia electronic mail\n\nMr. Arvin Boddie\n\nPost Office Box 288910\n\n[street address redacted for site publication -- see original PDF]\naboddieattyatlaw@sbcglobal.\n\nnet\n\nRE: FOIA Request for Review — 2020 PAC 61612\n\nDear Mr. Boddie: \n\nThis determination letter is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons set forth below, the\n\nPublic Access Bureau concludes that no further action in this matter is warranted. \n\nOn January 17, 2020, you submitted a FOIA request\n\nto the Illinois Secretary of\nState's Office seeking printed records consisting of \"ALL records, documents, data and/ or other\ninformation (including ELECTRONICALLY STORED INFORMATION) relating to: \n1) Entity\nNamed D' S MULTI COMPLEX; 2) File Number 72264169; 3) Entity Named JOHNSON\nFUNERAL SERVICES, INC.; and 4) File Number 655988124.\" On January 22, 2020, the\nSecretary of State's Office responded that its Business Services Department located the articles\nof incorporation and an affidavit of compliance for D's Multi Complex which could be obtained\nfor a fee of $5. 00 per record. With respect\nto Johnson Funeral Services, the Secretary of State's\nOffice stated that it possessed twenty- three records, including articles of incorporation, annual\nreports, amended annual\nreinstatements, \n\nreports, register agent changes, and involuntary dissolutions and\nfees amounted to\n\nthat could be obtained for $ 25. 00 per record. The total\n\n585. 00. You asked the State's Attorney's Office to reconsider, stating that you represent a not- \n\nfor- profit organization and that the $ 585. 00 fee is inconsistent with section 6 of FOIA (5 ILCS\n140/ 6 (West 2018)). The Secretary of State's Office responded that the fee is authorized by the\nBusiness Corporation Act (805 ILCS 5/ 1. 01 (West 2018)), and supersedes the fee provisions of\n\nFOIA. The Secretary of State's Office also stated that you could schedule an appointment\n\nto\n\nOffice of the Illinois Secretary of State (January 17, 2020). \n\nFreedom of Information Act Request Form submitted by Arvin Boddie, Attorney at Law, to\n\nview the documents for no fee. Your Request for Review asserts that the Secretary of State's\nOffice improperly denied your request by imposing an unreasonable fee. \n\nSection 6(b) of FOIA (5 ILCS 140/ 6(b) (West 2018)) provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each\n\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black and\n\nwhite, letter or legal sized copies requested by a requester. The fee\nfor black and white, letter or legal sized copies shall not exceed 15\n\ncents per page. * * * \n\nThe cost for certifying a record shall not\n\nexceed $ 1. (Emphasis added.) \n\nThe plain language of section 6(b) of FOIA permits a public body, such as the Secretary of\nState's Office, to charge fees fixed by a statute other than FOIA. Section 15. 15 of the Business\nCorporation Act of 1983 (805 ILCS 5/ 15. 15 (West 2018)) provides that \"[ t] he Secretary of State\n\nshall charge and collect[ ]\" \n\na fee of $25. 00 for \" furnishing a copy or certified copy of any\n\ndocument, instrument, or paper relating to a corporation[.]\" Section 115. 15 of the General Not\nfor Profit Corporation Act of 1986 (805 ILCS 105/ 115. 15 (West 2018)) provides that \"[ t] he\nSecretary of State shall charge and collect[ ]\" a fee of $5. 00 for \"furnishing a copy or certified\ncopy of any document, instrument, or paper relating to a corporation[.]\" \n\nJohnson Funeral Services, Inc. is registered as a business corporation and D's\n\nMulti Complex is registered as a not- for-profit corporation. Because the records you requested\n\nrelate to a business corporation and not- for- profit corporation, the specific fees for those records\nfixed by the Business Corporation Act of 1983 and General Not for Profit Corporation Act of\n1986 are applicable and take precedence over the fee provisions of FOIA. Accordingly, this\noffice has determined that no further action is warranted in this matter. \n\nThis filed is closed. If you have any questions, please contact me at 312- 814- \n\n61612fnofiwarsa\n\ncc: \n\nVia electronic mail\n\nMs. Donna Leonard\n\nExecutive Counsel\n\nIllinois Secretary of State's Office\n17 North State Street, Suite 1169\n\nChicago, Illinois 60602\n\ndleonard@ilsos. gov"}
{"id":951,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-08-31","case_number":null,"request_numbers":["61760"],"title":"City of Peoria improperly withheld employee misconduct investigation records under 7(1)(a), (c), (f), (m)","filename":"61760, issued August 31, 2020.pdf","rel_path":null,"word_count":2826,"summary":"The requester sought records regarding misconduct complaints against two City of Peoria employees, and the PAC determined the City improperly withheld certain portions of the responsive emails and letters.","plain_summary":"A requester asked the City of Peoria for records regarding misconduct complaints against two employees. The City withheld some information, claiming it was private or exempt, but the Attorney General's office found that some of those redactions were improper and requested the City release the specific portions of the documents.","holding":"The City of Peoria improperly withheld specific sentences and paragraphs from the requested records that did not qualify for the claimed FOIA exemptions.","legal_question":"Whether the City of Peoria properly applied FOIA exemptions 7(1)(a), 7(1)(c), 7(1)(f), and 7(1)(m) to withhold records concerning employee misconduct investigations.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"City of Peoria","requesting_party":"Mr. Patrick B. McGrath","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records related to misconduct complaints and investigations involving two specific City of Peoria employees.","ocr_status":"ok","ocr_quality":92,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/61760%2C%20issued%20August%2031%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","misconduct investigation","FOIA redaction","employee privacy"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL ' \n\nATTORNEY GENERAL\n\nAugust 31,  2020\n\nVia electronic mail\n\nMr.  Patrick B.  McGrath\n\nDavies - McGrath Law Office,  P. C. \n\n[street address redacted for site publication -- see original PDF]\npmcgrath@mcgrathpc.com\n\nVia electronic mail\n\nMs.  Chrissie L.  Peterson\n\nInterim Corporation Counsel\n\nOffice of the Corporation Counsel\nCity of Peoria\n419 Fulton,  Suite 200\n\nPeoria,  Illinois 61602\n\ncpeterson@peoriagov. org\n\nRE:  FOIA Request for Review — 2020 PAC 61760\n\nDear Mr.  McGrath and Ms.  Peterson: \n\nThis determination is issued pursuant\n\nto section 9. 5( f)  of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the City of Peoria ( City)  improperly withheld certain\nlimited information in the records responsive to Mr.  Patrick B.  McGrath' s January 9,  2020,  FOIA\n\nrequest. \n\nOn that date,  Mr.  McGrath submitted a FOIA request\n\nto the City seeking records\npertaining to complaints or allegations of misconduct against two City employees,  Ashley Elias\nand Raven Fuller.  Mr.  McGrath stated that the request\n\nincluded copies of all complaints or\n\nrecords created or obtained in the investigation of those complaints or allegations, \n\nallegations, \nand records pertaining to the outcome of the investigations.  On January 16,  202Q, the City\nprovided certain records but redacted or withheld certain information pursuant to1 sections\n7( 1)( a),  7( 1)( c),  7( 1)( 0,  and 7( 1)( m)  of FOIA ( 5 ILCS 140/ 7( 1)( a), (\n\n1)( 0, ( 1)( m) ( West\n\n1)( c), (\n\n500 South Second Street,  Springfield, \n100 West Randolph Street,  Chicago, \n\nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217) 1782- 7046\nIllinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Patrick B.  McGrath\n\nMs.  Chrissie L.  Peterson\n\nAugust 31,  2020\n\nPage 2\n\n2018),  as amended by Public Acts 101- 434,  effective January 1,  2020;  101- 452,  effective\nJanuary 1,  2020;  101- 455,  effective August 23,  2019).  On February 19,  2020,  this office\nreceiv d Mr. McGrath' s completed Request for Review contesting the City' s partial denial. \n\nOn February 20,  2020,  this office forwarded a copy of the Request for Review to\n\nthe City and asked it to provide unredacted copies of the responsive records for this office' s\nconfidential review, together with a detailed explanation of the legal and factual bases for the\n\napplicability of the asserted exemptions.  On February 27,  2020,  this office received the\nrequested materials.  On March 2,  2020, this office forwarded a copy of the City's response to\nMr. McGrath;  he did not submit a reply. \n\nDETERMINATION\n\n1\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 ( West 2018);  see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health,  218 Ill. 2d 390,  415 ( 2006).  A public body that withholds\nor redacts a record \" has the burden of proving by clear and convincing evidence\"  that the\ninformation is exempt\n\n5 ILCS 140/ 1. 2 ( West 2018).  The exemptions from\n\nfrom disclosure. \n\ndisclosure are to be narrowly construed.  Lieber v.  Board of Trustees of Southern Illinois\nUniversity,  176 Ill.  2d 401,  407 ( 1997). \n\nSection 7( 1)( c)  of FOIA\n\nSection 7( 1)( c)  exempts\n\nfrom disclosure \"[ p] ersonal\n\ninformationcontained within\n\npublic records,  the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy,  unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\"  Section 7( 1)( c)  defines \" unwarranted invasion of personal privacy\"  as: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\n\nright to privacy outweighs any legitimate public interest in\nobtaining the information.  The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy. \n\nA public body' s assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by- case basis.  Chicago Journeymen\nPlumbers'  Local Union 130 v. Department of Public Health,  327 Ill. App.  3d 192,  196 ( 1st Dist. \n2001).  The phrase \" clearly unwarranted invasion of personal privacy\"  evinces a strict standard to\nclaim the exemption,  and the burden is on the public body having charge of the record to prove\n\n\fMr.  Patrick B.  McGrath\n\nMs.  Chrissie L.  Peterson\n\nAugust 31,  2020\n\nPage 3\n\nthat standard has been met.  Schessler v. Department ofConservation, 256 Ill. App. 3d 198,  202\n4th Dist.  1994). \n\nThe Public Access Bureau has consistently determined that records pertaining to\nfrom\n\ncomplaints or allegations of misconduct against public employees are generally not exempt\ndisclosure in their entireties under section 7( 1)( c)  because such information bears on the\n\nperformance of the employees'  public duties.  See, for example,  Ill. Att' y Gen.  PAC Req.  Rev. \nLtr. 31045,  issued Aprils 13,  2015;  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 60991,  issued March 12, \n2020.  With respect\nto sexual misconduct or harassment complaints,  this office! has recognized\nthat complainants have legitimate privacy interests in the information they subrnit,  but\ndetermined that \"[ r] edacting the relatively minimal content\nsalacious and disclosing the remaining information concerning the alleged misconduct would\nstrike the appropriate balance between the public interest and the complainant's privacy interest.\" \nIll. Att' y Gen.  PAC Req.  Rev.  Ltr. 52303,  issued October 16,  2018,  at 6.  Additionally,  this office\ndetermined that redacting personally -identifying information of any complainants and witnesses\nwould greatly reduce the impact on their personal privacy.\" \nIll. Att' y Gen.  PAC Req.  Rev.  Ltr. \n52303,  at 7. \n\nthat could be characterized as\n\nIn its response to this office,  the City contended that it had redacted certain\n\ninformation concerning Mr. Elias and Ms.  Fuller that was personal\nbearing on the public duties of those two employees.  Specifically, the City stated that it redacted\na portion of an e- mail from Mr. Elias to several\nAdditionally, the City stated that it redacted a portion of a letter from Ms. Fuller that \" described\naccusations made against Fuller' s sexual conduct,  her friendships and status as an unmarried\n\nindividuals in which he discussed his family. \n\nin nature and did not have a\n\nwoman. \n\nThis office's review of an unredacted copy of the e- mail from Mr Elias confirmed\n\nthat the ;City redacted most of a paragraph in which Mr. Elias discussed highly personal matters\nin nature and ldo not relate\nrelated t'o his immediate family.  These details are highly personal\ndirectly oto public duties.  This office has determined that Mr. Elias'  right to privacy outweighs\nthe public interest in that particular information.  See, for example,  I11.  Att'y Gen. PAC Req.  Rev. \nLtr.  57449,  issued December 31,  2019 ( determining that discrete portions of a -mails concerning\na then -employee fell within the scope of section 7( 1)( c)  because the portions revealed details\nabout the employee that were highly personal\n\nin nature and did not relate directly to the\n\nemployee'\n\ns work performance).  However,  a portion of the redacted information ' is general\n\nin\n\nnature and pertains to Mr. Elias' employment with the City and the misconduct allegation against\n\nLetter from Chrissie L.  Peterson,  Interim Corporation Counsel,  City of Peoria;  Office of the\n\nCorporation Counsel, \n\nto Teresa Lim,  Assistant Attorney General,  Public Access Bureau[,]  Office of the Attorney\n\nGeneral,  State of Illinois ( February 26,  2020),  at 4. \n\n\fMr.  Patrick B.  McGrath\n\nMs.  Chrissie L.  Peterson\n\nAugust 31,  2020\n\nPage 4\n\nhim.  Because such information bears directly on the public duties of Mr. Elias', its disclosure\nwould not constitute a clearly unwarranted invasion of personal privacy.  Accordingly,  this office\nconcludes that the City has not demonstrated by clear and convincing evidence that all of the\nredacted information in the e- mail from Mr. Elias falls within the scope of section 7( 1)( c). 2\n\nThis office' s review of the letter from Ms.  Fuller similarly confirmed that the City\n\nredacted portions in which Ms. Fuller discussed accusations made against her related to sexual\n\nconduct and her personal relationships and marital status.  This office agrees that Ms.  Fuller' s\n\ndiscussion of her personal relationships do not pertain directly to her employment or work\nperformance.  The discussion reveals specific details about Ms.  Fuller' s private ' life thatare\nhighly personal\nHowever,  the information redacted from the fourth paragraph of the letter pertains to alleged\n\nin nature,  the disclosure of which would be objectionable to a reasonable person. \n\nmisconduct\n\nat the workplace.  Such information bears on Ms.  Fuller' s employment and public\n\nduties.  Accordingly,  this office concludes that the City has not demonstrated by clear and\nconvincing evidence that all of the redacted information in the letter from Ms.  Fuller falls within\nthe scope of section 7( 1)( c). \n\nSection 7( 1)( f) of FOIA\n\nSection 7( 1)( f) exempts from inspection and copying \"[ p] reliminary drafts,  notes, \nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\n\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"  Section\n7( 1)( f) is \" intended to protect\ndiscussion among agency employees before a final decision is made.\"  Harwood v. McDonough, \n344 Ill. App.  3d 242,  248 ( 1st Dist.  2003). \" The government\nthat reflect\n\nthe agency' s give- and- take leading up to its final decisions.\"  Chicago Tribune Co.  v. \n\nthe communications process and encourage frank and open\n\nis entitled to withhold documents\n\nCook County Assessor' s Office,  2018 IL App ( 1st)  170455, ¶ 29,  109 N. E. 3d 872;  880 ( 2018). \nThe 7( 1)( f) exemption also encompasses \" communications between government', agencies and\noutside consultants whose analyses and recommendations ' played essentially the; same part in an\nagency's process of deliberation as documents prepared [ internal citation]  by agency personnel\nmight have done.'  Harwood,  344 Ill. App.  3d at 248 ( quoting Department of the Interior v. \nKlamath, Water Users Protective Ass' n,  532 U. S.  1,  10,  121 S. Ct.  1060,  1067 ( 2091)).  However, \n\nmaterial\n\npurely factual material\"  is not exempt from disclosure under section 7( 1)( f) unless the factual\ndeliberative discussions:  Watkins v. \nMcCarthy,  2012 IL App ( 1st)  100632, ¶ 36,  980 N.E. 2d 733,  743 ( 2012) ( quoting Enviro Tech\n\nis \" inextricably intertwined\"  with predecisional\n\n2The City also redacted an employee identification number in the provided records. Employee\nidentification numbers constitute \" private information\"  under that term' s definition in section 2( c- 5)  of FOIA ( 5\nILCS 140/ 2( c- 5) ( West 2018)).  Accordingly, \nFOIA ( 5 ILCS 140/ 7( 1)( b) ( West 2018)). \n\nfrom disclosure under section 7( 1)( b)  of\n\ninformation is exempt\n\nthat\n\n\fMr.  Patrick B.  McGrath\n\nMs.  Chrissie L.  Peterson\n\nAugust 31,  2020\n\nPage 5\n\nInternational,  Inc.  v.  United States Environmental Protection Agency,  371 F. 3d 370,  374- 75 ( 7th\nCir. 2004)). \n\nWith regard to interview notes, the Public Access Bureau has previously\n\ndetermined that handwritten notes reflecting an evaluator' s mental\nmay fall within the scope of section 7( 1)( f). See, for example,  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. \n48868,  issued October 17,  2017,  at 4 ( handwritten notes reflecting mental\nmember about university president' s job performance exempt\nPAC Req.  Rev.  Ltr. 58984,  issued August\nrequest\nreflected the note - takers'  mental\n\nimpressions of board\nfrom disclosure);'  I11.  Att'y Gen. \n1,  2019,  at 2 ( public body did not improperly deny a\n\nfor a copy of interview notes because they were preliminary to a hiring, decision and\nimpressions of a job applicant).  But see Ill. Att' y Gen.  PAC\n\nimpressions of an individual\n\nReq.  Rev.  Ltr.  50756,  issued March 12,  2018,  at 5 ( handwritten notes that appeared to be factual\ndescriptions or summaries of a meeting not exempt from disclosure under section 7( 1)( f) where\nthere was no evidence they were deliberative). \n\nThe City argued that it withheld certain preliminary notes and draft documents\n1) \n\nf).  In particular,  the City asserted that it withheld: (\n\nthat fell within the scope of section 7( 1)(\npersonal notes taken by Human Resource Director,  Mary Ann Stalcup\"  related: to her interviews\nwith Mr. Elias and Ms.  Fuller; ( 2) \" handwritten notes of Attorney [ Donald]  Leist as well as the\nquestions he formulated to interview Elias\"  and likewise handwritten notes and questions related\nto his interview of Ms.  Fuller;  and ( 3)  documents \" drafted by Leist as part of his investigation\ninto the matter\"  of the complaint involving Mr. Elias and Ms. Fuller that were not presented to\neither individuals or executed. 3 The City argued that most of the records constituted\npreliminary drafts,  notes,  recommendations,  memoranda,  and other records in which opinions\nwere expressed by Attorney Donald Leist[,]\"  who served as the City's Corporation Counsel;  the\nCity argued that those records are further exempt from disclosure under section 7( 1)( m). 4\nAdditionally, the City contended that it had redacted one e- mail because it was protected by the\nattorney- client privilege.  Specifically,  the City stated that the \" communication was from\nAttorney Jill O' Brien ( who provides employment\nLeist[.]  15\n\nlaw services to the City)  to Attorney Donald\n\n3Letter from Chrissie L. Peterson,  Interim Corporation Counsel,  City of Peoria;  Office of the\n\nCorporation Counsel,  to Teresa Lim,  Assistant Attorney General,  Public Access Bureau[,]  Office of the Attorney\nGeneral,  State of Illinois ( February 26,  2020),  at 3- 4. \n\nCorporation Counsel, \n\nto Teresa Lim,  Assistant Attorney General,  Public Access Bureau[,]  Office, of the Attorney\n\nLetter from Chrissie L. Peterson,  Interim Corporation Counsel,  City of Peoria;  Office of the\n\nGeneral,  State of Illinois ( February 26,  2020),  at 4. \n\nLetter from Chrissie L. Peterson,  Interim Corporation Counsel,  City of Peoria,' Office of the\n\nCorporation Counsel, \nGeneral,  State of Illinois ( February 26,  2020),  at 3. \n\nto Teresa Lim,  Assistant Attorney General,  Public Access Bureau[,]  Office) of the Attorney\n\n\fr. Patrick B.  McGrath\n\nMs.  Chrissie L.  Peterson\n\nAugust 31,  2020\n\nPage 6\n\nThis office' s review of the handwritten notes of Ms.  Stalcup and Mr. Leist\n\ndetermined that the notes reflect their mental impressions of Mr. Elias and Ms. Fuller, as they\nquestioned the two individuals regarding the incident\nthat was the subject of a complaint.  The\nnotes contain details reflecting the formulation of action and reveal opinions about the two\ninformation about the\nindividuals and the relevant\n\nincident.  While the notes contain factual\n\nincident,  the information is inextricably intertwined with the mental\nand Mr. Leist.  This office' s review of the documents prepared by Mr. Leist as part of the\ninvestigation also confirmed that the City withheld certain draft materials that had not been\nexecuted;  the materials do not reflect final decisions.  Further,  there is no indication that the\n\nimpressions of Ms.  Stalcup\n\ndocuments were disclosed to Mr.  Elias or Ms.  Fuller.  This office has also reviewed the e- mail\n\nfrom Ms.  O' Brien to Mr. Leist and determined that the e- mail reflects Ms.  O' Brien acting as a\nconsultant to the City.  Disclosure of the e- mail would provide insight into the City' s deliberative\nprocess,  as Ms. O' Brien advised the City on how to proceed with the investigation of the\ncomplaint.  There is no indication that the handwritten notes,  documents,  and communication\nhave been publicly cited and identified by the head of the City.  Because those records are\npreliminary and deliberative in nature,  the City did not improperlywithhold the; records pursuant\nto section 7( 1)( f).6\n\nIn accordance with the conclusions expressed in this determination,  this office\n\nrequests that the City disclose the first,  fifth,  and sixth sentences of the last paragraph of the e- \nmail,  dated February 23,  2017,  from Mr.  Elias.  This office also requests that the City disclose\nthe entire fourth paragraph of the letter,  dated February 23,  2017,  from Ms.  Fuller. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n6Because this determination concludes that the responsive records are exempt\n\nfrom disclosure\n\npursuant t\n\nsection 7(\n\n1)(\n\nf), we decline to address the applicability of sections\n\n7( 1)( a)  and 7( 1)( m)', ofFOIA to those\n\nrecords. \n\n\fMr.  Patrick B.  McGrath\nMs. Chrissie L. Peterson\nAugust 31,  2020\n\nPage 7\n\n61760 f 71c proper improper 71f proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Misconduct complaint records involving two city employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61760/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL ' \n\nATTORNEY GENERAL\n\nAugust 31, 2020\n\nVia electronic mail\n\nMr. Patrick B. McGrath\n\nDavies - McGrath Law Office, P. C. \n\n[street address redacted for site publication -- see original PDF]\npmcgrath@mcgrathpc.com\n\nVia electronic mail\n\nMs. Chrissie L. Peterson\n\nInterim Corporation Counsel\n\nOffice of the Corporation Counsel\nCity of Peoria\n419 Fulton, Suite 200\n\nPeoria, Illinois 61602\n\ncpeterson@peoriagov. org\n\nRE: FOIA Request for Review — 2020 PAC 61760\n\nDear Mr. McGrath and Ms. Peterson: \n\nThis determination is issued pursuant\n\nto section 9. 5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Peoria (City) improperly withheld certain\nlimited information in the records responsive to Mr. Patrick B. McGrath's January 9, 2020, FOIA\n\nrequest. \n\nOn that date, Mr. McGrath submitted a FOIA request\n\nto the City seeking records\npertaining to complaints or allegations of misconduct against two City employees, Ashley Elias\nand Raven Fuller. Mr. McGrath stated that the request\n\nincluded copies of all complaints or\n\nrecords created or obtained in the investigation of those complaints or allegations, \n\nallegations, \nand records pertaining to the outcome of the investigations. On January 16, 202Q, the City\nprovided certain records but redacted or withheld certain information pursuant to1 sections\n7(1)(a), 7(1)(c), 7(1)(0, and 7(1)(m) of FOIA (5 ILCS 140/ 7(1)(a), (1)(0, (1)(m) (West\n\n1)(c), (2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective\nJanuary 1, 2020; 101- 455, effective August 23, 2019). On February 19, 2020, this office\nreceiv d Mr. McGrath's completed Request for Review contesting the City's partial denial. \n\nOn February 20, 2020, this office forwarded a copy of the Request for Review to\n\nthe City and asked it to provide unredacted copies of the responsive records for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\n\napplicability of the asserted exemptions. On February 27, 2020, this office received the\nrequested materials. On March 2, 2020, this office forwarded a copy of the City's response to\nMr. McGrath; he did not submit a reply. \n\nDETERMINATION\n\n1\n\nAll records in the custody or possession of a public body are presumed to be\n5 ILCS 140/ 1. 2 (West 2018); see also Southern Illinoisan v. \n\nopen to inspection or copying.\" \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nor redacts a record \" has the burden of proving by clear and convincing evidence\" that the\ninformation is exempt\n\n5 ILCS 140/ 1. 2 (West 2018). The exemptions from\n\nfrom disclosure. \n\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 (1997). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) exempts\n\nfrom disclosure \"[ p] ersonal\n\ninformationcontained within\n\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" as: \n\nT] he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\n\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\n\nconsidered an invasion of personal privacy. \n\nA public body's assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by- case basis. Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, 196 (1st Dist. \n2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\n\nthat standard has been met. Schessler v. Department ofConservation, 256 Ill. App. 3d 198, 202\n4th Dist. 1994). \n\nThe Public Access Bureau has consistently determined that records pertaining to\nfrom\n\ncomplaints or allegations of misconduct against public employees are generally not exempt\ndisclosure in their entireties under section 7(1)(c) because such information bears on the\n\nperformance of the employees' public duties. See, for example, Ill. Att' y Gen. PAC Req. Rev. \nLtr. 31045, issued Aprils 13, 2015; Ill. Att'y Gen. PAC Req. Rev. Ltr. 60991, issued March 12, \n2020. With respect\nto sexual misconduct or harassment complaints, this office! has recognized\nthat complainants have legitimate privacy interests in the information they subrnit, but\ndetermined that \"[ r] edacting the relatively minimal content\nsalacious and disclosing the remaining information concerning the alleged misconduct would\nstrike the appropriate balance between the public interest and the complainant's privacy interest.\" \nIll. Att' y Gen. PAC Req. Rev. Ltr. 52303, issued October 16, 2018, at 6. Additionally, this office\ndetermined that redacting personally -identifying information of any complainants and witnesses\nwould greatly reduce the impact on their personal privacy.\" \nIll. Att' y Gen. PAC Req. Rev. Ltr. \n52303, at 7. \n\nthat could be characterized as\n\nIn its response to this office, the City contended that it had redacted certain\n\ninformation concerning Mr. Elias and Ms. Fuller that was personal\nbearing on the public duties of those two employees. Specifically, the City stated that it redacted\na portion of an e- mail from Mr. Elias to several\nAdditionally, the City stated that it redacted a portion of a letter from Ms. Fuller that \" described\naccusations made against Fuller's sexual conduct, her friendships and status as an unmarried\n\nindividuals in which he discussed his family. \n\nin nature and did not have a\n\nwoman. \n\nThis office's review of an unredacted copy of the e- mail from Mr Elias confirmed\n\nthat the;City redacted most of a paragraph in which Mr. Elias discussed highly personal matters\nin nature and ldo not relate\nrelated t'o his immediate family. These details are highly personal\ndirectly oto public duties. This office has determined that Mr. Elias' right to privacy outweighs\nthe public interest in that particular information. See, for example, I11. Att'y Gen. PAC Req. Rev. \nLtr. 57449, issued December 31, 2019 (determining that discrete portions of a -mails concerning\na then -employee fell within the scope of section 7(1)(c) because the portions revealed details\nabout the employee that were highly personal\n\nin nature and did not relate directly to the\n\nemployee's work performance). However, a portion of the redacted information ' is general\n\nin\n\nnature and pertains to Mr. Elias' employment with the City and the misconduct allegation against\n\nLetter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria; Office of the\n\nhim. Because such information bears directly on the public duties of Mr. Elias', its disclosure\nwould not constitute a clearly unwarranted invasion of personal privacy. Accordingly, this office\nconcludes that the City has not demonstrated by clear and convincing evidence that all of the\nredacted information in the e- mail from Mr. Elias falls within the scope of section 7(1)(c). 2\n\nThis office's review of the letter from Ms. Fuller similarly confirmed that the City\n\nredacted portions in which Ms. Fuller discussed accusations made against her related to sexual\n\nconduct and her personal relationships and marital status. This office agrees that Ms. Fuller's\n\ndiscussion of her personal relationships do not pertain directly to her employment or work\nperformance. The discussion reveals specific details about Ms. Fuller's private ' life thatare\nhighly personal\nHowever, the information redacted from the fourth paragraph of the letter pertains to alleged\n\nin nature, the disclosure of which would be objectionable to a reasonable person. \n\nmisconduct\n\nat the workplace. Such information bears on Ms. Fuller's employment and public\n\nduties. Accordingly, this office concludes that the City has not demonstrated by clear and\nconvincing evidence that all of the redacted information in the letter from Ms. Fuller falls within\nthe scope of section 7(1)(c). \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) exempts from inspection and copying \"[ p] reliminary drafts, notes, \nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" Section\n7(1)(f) is \" intended to protect\ndiscussion among agency employees before a final decision is made.\" Harwood v. McDonough, \n344 Ill. App. 3d 242, 248 (1st Dist. 2003). \" The government\nthat reflect\n\nthe agency's give- and- take leading up to its final decisions.\" Chicago Tribune Co. v. \n\nthe communications process and encourage frank and open\n\nis entitled to withhold documents\n\nCook County Assessor's Office, 2018 IL App (1st) 170455, ¶ 29, 109 N. E. 3d 872; 880 (2018). \nThe 7(1)(f) exemption also encompasses \" communications between government', agencies and\noutside consultants whose analyses and recommendations ' played essentially the; same part in an\nagency's process of deliberation as documents prepared [ internal citation] by agency personnel\nmight have done.' Harwood, 344 Ill. App. 3d at 248 (quoting Department of the Interior v. \nKlamath, Water Users Protective Ass' n, 532 U. S. 1, 10, 121 S. Ct. 1060, 1067 (2091)). However, \n\nmaterial\n\npurely factual material\" is not exempt from disclosure under section 7(1)(f) unless the factual\ndeliberative discussions: Watkins v. \nMcCarthy, 2012 IL App (1st) 100632, ¶ 36, 980 N.E. 2d 733, 743 (2012) (quoting Enviro Tech\n\nis \" inextricably intertwined\" with predecisional\n\n2 The City also redacted an employee identification number in the provided records. Employee\nidentification numbers constitute \" private information\" under that term's definition in section 2(c- 5) of FOIA (5\nILCS 140/ 2(c- 5) (West 2018)). Accordingly, \n\nInternational, Inc. v. United States Environmental Protection Agency, 371 F. 3d 370, 374- 75 (7th\nCir. 2004)). \n\nWith regard to interview notes, the Public Access Bureau has previously\n\ndetermined that handwritten notes reflecting an evaluator's mental\nmay fall within the scope of section 7(1)(f). See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. \n48868, issued October 17, 2017, at 4 (handwritten notes reflecting mental\nmember about university president's job performance exempt\nPAC Req. Rev. Ltr. 58984, issued August\nrequest\nreflected the note - takers' mental\n\nimpressions of board\nfrom disclosure);' I11. Att'y Gen. \n1, 2019, at 2 (public body did not improperly deny a\n\nfor a copy of interview notes because they were preliminary to a hiring, decision and\nimpressions of a job applicant). But see Ill. Att' y Gen. PAC\n\nimpressions of an individual\n\nReq. Rev. Ltr. 50756, issued March 12, 2018, at 5 (handwritten notes that appeared to be factual\ndescriptions or summaries of a meeting not exempt from disclosure under section 7(1)(f) where\nthere was no evidence they were deliberative). \n\nThe City argued that it withheld certain preliminary notes and draft documents\n1) \n\nf). In particular, the City asserted that it withheld: (that fell within the scope of section 7(1)(personal notes taken by Human Resource Director, Mary Ann Stalcup\" related: to her interviews\nwith Mr. Elias and Ms. Fuller; (2) \" handwritten notes of Attorney [ Donald] Leist as well as the\nquestions he formulated to interview Elias\" and likewise handwritten notes and questions related\nto his interview of Ms. Fuller; and (3) documents \" drafted by Leist as part of his investigation\ninto the matter\" of the complaint involving Mr. Elias and Ms. Fuller that were not presented to\neither individuals or executed. 3 The City argued that most of the records constituted\npreliminary drafts, notes, recommendations, memoranda, and other records in which opinions\nwere expressed by Attorney Donald Leist[,]\" who served as the City's Corporation Counsel; the\nCity argued that those records are further exempt from disclosure under section 7(1)(m). 4\nAdditionally, the City contended that it had redacted one e- mail because it was protected by the\nattorney- client privilege. Specifically, the City stated that the \" communication was from\nAttorney Jill O' Brien (who provides employment\nLeist[.] 15\n\nlaw services to the City) to Attorney Donald\n\n3 Letter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria; Office of the\n\nCorporation Counsel, to Teresa Lim, Assistant Attorney General, Public Access Bureau[,] Office of the Attorney\nGeneral, State of Illinois (February 26, 2020), at 3- 4. \n\nCorporation Counsel, \n\nto Teresa Lim, Assistant Attorney General, Public Access Bureau[,] Office, of the Attorney\n\nLetter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria; Office of the\n\nGeneral, State of Illinois (February 26, 2020), at 4. \n\nLetter from Chrissie L. Peterson, Interim Corporation Counsel, City of Peoria,' Office of the\n\nThis office's review of the handwritten notes of Ms. Stalcup and Mr. Leist\n\ndetermined that the notes reflect their mental impressions of Mr. Elias and Ms. Fuller, as they\nquestioned the two individuals regarding the incident\nthat was the subject of a complaint. The\nnotes contain details reflecting the formulation of action and reveal opinions about the two\ninformation about the\nindividuals and the relevant\n\nincident. While the notes contain factual\n\nincident, the information is inextricably intertwined with the mental\nand Mr. Leist. This office's review of the documents prepared by Mr. Leist as part of the\ninvestigation also confirmed that the City withheld certain draft materials that had not been\nexecuted; the materials do not reflect final decisions. Further, there is no indication that the\n\nimpressions of Ms. Stalcup\n\ndocuments were disclosed to Mr. Elias or Ms. Fuller. This office has also reviewed the e- mail\n\nfrom Ms. O' Brien to Mr. Leist and determined that the e- mail reflects Ms. O' Brien acting as a\nconsultant to the City. Disclosure of the e- mail would provide insight into the City's deliberative\nprocess, as Ms. O' Brien advised the City on how to proceed with the investigation of the\ncomplaint. There is no indication that the handwritten notes, documents, and communication\nhave been publicly cited and identified by the head of the City. Because those records are\npreliminary and deliberative in nature, the City did not improperlywithhold the; records pursuant\nto section 7(1)(f).6\n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the City disclose the first, fifth, and sixth sentences of the last paragraph of the e- \nmail, dated February 23, 2017, from Mr. Elias. This office also requests that the City disclose\nthe entire fourth paragraph of the letter, dated February 23, 2017, from Ms. Fuller. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\nAssistant Attorney General\nPublic Access Bureau\n\n6 Because this determination concludes that the responsive records are exempt\n\nfrom disclosure\n\n61760 f 71c proper improper 71f proper mun"}
{"id":952,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-10-26","case_number":null,"request_numbers":["61964"],"title":"Lockport Police Department improperly withheld arrest records under 7(1)(d)(vii)","filename":"61964, issued October 26, 2020.pdf","rel_path":null,"word_count":1524,"summary":"The Lockport Police Department withheld police reports and video footage regarding an arrest, citing FOIA exemption 7(1)(d)(vii). The PAC determined the Department failed to meet its burden of proof to justify the exemption and improperly denied the request.","plain_summary":"The question was whether the Lockport Police Department properly withheld arrest narratives and video footage under FOIA's law-enforcement exemption for records that would obstruct an ongoing criminal investigation (5 ILCS 140/7(1)(d)(vii)). The Public Access Bureau held that the police department improperly denied the request because its explanation for invoking the exemption was conclusory and did not show how disclosure would interfere with a criminal investigation. The rule applied is that a public body cannot rely on the mere existence of an ongoing investigation or pending litigation to justify withholding law-enforcement records; it must provide specific, non-conclusory facts demonstrating actual interference. The police department was directed to disclose the withheld narrative and video recordings, subject only to permissible redactions such as private information and information identifying uninvolved third parties.","holding":"A public body invoking the section 7(1)(d)(vii) exemption must show with specific facts, not conclusory assertions, that disclosure would obstruct an ongoing criminal investigation, and merely citing pending litigation or an open case is insufficient.","legal_question":"Whether the Lockport Police Department properly invoked section 7(1)(d)(vii) of FOIA to withhold records related to an arrest.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(d)(vii)"],"public_body":"Lockport Police Department","requesting_party":"Mr. Felix Sarver (The Herald-News)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought police reports, supplementary reports, and dash camera footage concerning a specific arrest.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_vii/61964%2C%20issued%20October%2026%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","arrest records","video footage","FOIA denial","exemption 7(1)(d)(vii)"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nOctober 26,  2020\n\nI\n\n1\n\nVia electronic mail\n\nMr. Felix Sarver\n\nNews Reporter\n\nThe Herald -News\n\n2175 Oneida Street\n\nJoliet,  Illinois 604351\nfsarver@ shawmedia. com\n\nVia electronic mail\n\nMs.  Rita Tinker\n\nFOIA Officer\n\nLockport Police Department\n\n1212 Farrell Road\n\n[street address redacted for site publication -- see original PDF]\nrtinker@lockportpolice.\n\ninfo\n\nRE:  FOIA Request for Review — 2020 PAC 61964\n\nDear Mr.  Sarver and Ms.  Tinker: \n\nThis determination letter is issued pursuant to section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( 0 (West 2018)).  For the reasons that follow,  the\nPublic Access Bureau concludes that the Lockport Police Department ( Police Department) \n\nimproperly denied Mr. Felix Sarver's February 19,  2020, FOIA request. \n\nOn that date,  Mr.  Sarver,  on behalf of The Herald -News,  submitted a FOIA\n\nrequest\n\nto the Police Department seeking copies of any and all police reports,  supplementary\n\npolice reports,  dash camera footage, and any other video footage concerning the arrest of a\nnamed person on February 14,  2020.  On February 28,  2020,  the Police Department provided Mr. \nSarver with copies of a case report,  citations,  and what appears to be a booking photo,  but\nredacted certain information and withheld entire records pursuant\n\nto section 7( 1)( d)( vii)  of FOIA\n\n5 ILCS 140/ 7( 1)( d)( vii) ( West 2018),  as amended by Public Acts 101- 434,  effective January 1, \n2020;  101- 452,  effective January 1,  2020;  101- 455,  effective August 23,  2019).  Later that day, \n\n500 South Second Street,  Springfield, \n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Felix Sarver\n\nMs. Rita Tinker\n\nOctober 26,  2020\n\nPage 2\n\nMr. Sarver submitte4 the above -referenced Request for Review disputing the Police\nDepartment' s redactions of the arrest narratives and its withholding of requested video footage. \n\nOn March 9,  2020, this office sent a copy of the Request for Review to the Police\n\nDepartment and asked it to provide copies of the withheld records for this office' s confidential\n\nreview,  and a detailed explanation of the factual and legal bases for the applicability of section\n7( 1)( d)( vii)  of FOIA:  In particular,  this office asked the Police Department\ndisclosure of the responsive records would create a substantial likelihood that the accused person\nwould be deprived of a fair or impartial hearing.  On March 10,  2020,  the Police Department\nprovided this office with unredacted copies of the responsive paper records and a written\n\nto specify how\n\nresponse.  On June 3;  2020,  the Police Department provided this office with copies of the\n\nresponsive\n\nvideo recordings. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"  5 ILCS 140/ 1. 2 ( West 2018);  see also Southern Illinoisan v. \nIllinois Department of Public Health,  218 Ill. 2d 390,  415 ( 2006).  A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\"  that the records are exempt\nfrom disclosure.  5 ILCS 140/ 1. 2 ( West 2018).  The exemptions from disclosure are to be\n\nnarrowly construed.  Lieber v.  Board of Trustees of Southern Illinois University,  176 I11.  2d 401, \n407 ( 1997). \n\nSection 7( 1)( d)( vii) of FOIA\n\nSection 7( 1)( d)( vii) of FOIA exempts from disclosure: \n\nd) \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nvii) \n\nobstruct an ongoing criminal investigation by the\n\nagency that is the recipient of the request. \n\nConclusory statements that the disclosure of requested records would obstruct a law enforcement\nproceeding are insufficient to demonstrate that law enforcement records are exempt from\ndisclosure under FOIA.  See Day v.  City of Chicago,  388 Ill.  App.  3d 70,  74- 77 ( 1st Dist.  2009). \n\n\fMr. Felix Sarver\n\nMs. Rita Tinker\n\nOctober 26,  2020\n\nPage 3\n\nIn Day,  the court explained: \" Simply saying there is an ' ongoing criminal\nthe case has not been cleared,'  with little additional explanation,  is not ' objective indicia' \n\ninvestigation because\n\nsufficient\n\nto show the ongoing investigation exemption applies.\"  Day, 388 I11.  App. 3d at 76;  see\n\nalso Ill. Att'y Gen.  Pub.  Acc.  Op.  No.  17- 011,  issued August 14,  2017,  at 7- 8 ( public body\nimproperly withheld irecord under section 7( 1)( d)( vii) because it failed to demonstrate that\ndisclosure would interfere with law enforcement);  Baudin v.  City ofCrystal Lake,  192 Ill. App. \n3d 530,  536 ( 2nd Dist.  1989) (\" The classification of information as ' law enforcement'  or\ninvestigatory'  does not necessarily foreclose access unless it can be shown,  in a particular case, \nthat disclosure would interfere with law enforcement and would, therefore,  not be in the public\n\ninterest.\"). \n\nIn its response to this office,  the Police Department asserted that it partially\n\ndenied the request pursuant\n\nto section 7( 1)( d)( vii)  because of \" ongoing open litigation,\"  and that\n\nthe report would be made available in its entirety at the conclusion of court proceedings.' \nonly other explanation the Police Department provided is as follows: \n\nThe\n\nThe Defendant\n\nin this report was first chair to the Will\n\nCounty States Attorney and is now a criminal defense\nattorney. \nThere is a special prosecutor from DuPage County assigned\nto this case. \n\ni Judge has requested a Substitution of Judge\nThe Attorney Registration &  Disciplinary Commission\nARDC)  has sent a subpoena for all records and videos for\nreview. l\n\n1\n\nThe Police Department' s explanation for the applicability of the exemption is\n\nconclusory.  The Police Department did not provide facts from which this office could conclude\nthat any of the responsive records are exempt\nFurthermore,  the Police Department did not explain how the release of these records would\n\nfrom disclosure under section 7( 1)( d)( vii). \n\ninvestigation,  despite this office' s specific request\n\ninterfere with any criminal\ninformation.  As discussed above,  Illinois courts have made it clear that the mere existence of an\nongoing investigation is an inadequate basis for denying a request.  Therefore, this office\nconcludes that the Police Department improperly denied the responsive narratives and video\nrecordings pursuant\n\nto section 7( 1)( d)( vii)  of FOIA. \n\nfor that\n\nMcCullough ( March 10,  2020). \n\nE- mail from Rita Tinker,  FOIA Officer,  Lockport Police Department,  to [ Christina]  Lucente- \n\n2E -mail\n\nfrom Rita Tinker,  FOIA Officer,  Lockport Police Department, \n\nto [ Christina]  Lucente- \n\nMcCullough,  Assistant Attorney General,  Public Access Bureau ( March 10,  2020). \n\n\fMr. Felix Sarver\n\nMs.  Rita Tinker\n\nOctober 26,  2020\n\nPage 4\n\nTo remedy its improper denial,  this office requests that the Police Department\n\ndisclose to Mr. Sarver copies of the narrative and video recordings,  subject only to permissible\nredactions under section 7 of FOIA ( 5 ILCS 140/ 7 ( West 2018),  as amended by Public Acts 101- \n434,  effective January 1,  2020;  101- 452,  effective January 1,  2020;  101- 455,  effective August\n23,  2019).  Specifically,  the Police Department may properly redact information that meets the\ndefinition of \"private information\"  pursuant to section 7( 1)( b)  of FOIA ( 5 ILCS 140/ 7( 1)( b) \nWest 2018),  as amended by Public Acts 101- 434,  effective January 1,  2020;  101- 452,  effective\nJanuary 1,  2020;  101E455,  effective August 23,  2019), 3 and dates of birth and information that\nwould unavoidably identify third parties who were not arrested pursuant to section 7( 1)( c)  of\nFOIA ( 5 ILCS 140/ 7( 1)( c) ( West 2018),  as amended by Public Acts 101- 434,  effective January\n1,  2020;  101- 452,  effective January 1,  2020;  101- 455,  effective August 23,  2019).  If the Police\nDepartment\nmeets the requirements of section 9( a)  of FOIA ( 5 ILCS 140/ 9( a) ( West 2018)). \n\nredacts any such information,  it should issue to Mr.  Sarver a notice of denial\n\nthat\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this file.  Please contact\nme at ( 312)  814- 5383 or the Chicago address on the first page of this letter if you have any\n\nquestions. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE- MCCULLOUG> \n\nAssistant Attorney General\nPublic Access Bureau\n\n61964 f 71 dvii improper pd\n\n3\n\nSection 2( c- 5)  of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2018))  defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number,  driver' s license\nnumber;  employee identification number,  biometric identifiers,  personal\n\nfinancial\n\ninformation,  passwords or other access codes,  medical records,  home\n\nor personal telephone numbers,  and personal email addresses.  Private\n\ninformation also includes home address and personal\n\nlicense plates,  except as\n\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports and dash-camera footage of an arrest","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61964/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nOctober 26, 2020\n\nI\n\n1\n\nVia electronic mail\n\nMr. Felix Sarver\n\nNews Reporter\n\nThe Herald -News\n\n2175 Oneida Street\n\nJoliet, Illinois 604351\nfsarver@ shawmedia. com\n\nVia electronic mail\n\nMs. Rita Tinker\n\nFOIA Officer\n\nLockport Police Department\n\n1212 Farrell Road\n\n[street address redacted for site publication -- see original PDF]\nrtinker@lockportpolice.\n\ninfo\n\nRE: FOIA Request for Review — 2020 PAC 61964\n\nDear Mr. Sarver and Ms. Tinker: \n\nThis determination letter is issued pursuant to section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(0 (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Lockport Police Department (Police Department) \n\nimproperly denied Mr. Felix Sarver's February 19, 2020, FOIA request. \n\nOn that date, Mr. Sarver, on behalf of The Herald -News, submitted a FOIA\n\nrequest\n\nto the Police Department seeking copies of any and all police reports, supplementary\n\npolice reports, dash camera footage, and any other video footage concerning the arrest of a\nnamed person on February 14, 2020. On February 28, 2020, the Police Department provided Mr. \nSarver with copies of a case report, citations, and what appears to be a booking photo, but\nredacted certain information and withheld entire records pursuant\n\nto section 7(1)(d)(vii) of FOIA\n\n5 ILCS 140/ 7(1)(d)(vii) (West 2018), as amended by Public Acts 101- 434, effective January 1, \n2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). Later that day, \n\nMr. Sarver submitte4 the above -referenced Request for Review disputing the Police\nDepartment's redactions of the arrest narratives and its withholding of requested video footage. \n\nOn March 9, 2020, this office sent a copy of the Request for Review to the Police\n\nDepartment and asked it to provide copies of the withheld records for this office's confidential\n\nreview, and a detailed explanation of the factual and legal bases for the applicability of section\n7(1)(d)(vii) of FOIA: In particular, this office asked the Police Department\ndisclosure of the responsive records would create a substantial likelihood that the accused person\nwould be deprived of a fair or impartial hearing. On March 10, 2020, the Police Department\nprovided this office with unredacted copies of the responsive paper records and a written\n\nto specify how\n\nresponse. On June 3; 2020, the Police Department provided this office with copies of the\n\nresponsive\n\nvideo recordings. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1. 2 (West 2018); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1. 2 (West 2018). The exemptions from disclosure are to be\n\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 I11. 2d 401, \n407 (1997). \n\nSection 7(1)(d)(vii) of FOIA\n\nSection 7(1)(d)(vii) of FOIA exempts from disclosure: \n\nd) \n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nvii) \n\nobstruct an ongoing criminal investigation by the\n\nagency that is the recipient of the request. \n\nConclusory statements that the disclosure of requested records would obstruct a law enforcement\nproceeding are insufficient to demonstrate that law enforcement records are exempt from\ndisclosure under FOIA. See Day v. City of Chicago, 388 Ill. App. 3d 70, 74- 77 (1st Dist. 2009). \n\nIn Day, the court explained: \" Simply saying there is an ' ongoing criminal\nthe case has not been cleared,' with little additional explanation, is not ' objective indicia' \n\ninvestigation because\n\nsufficient\n\nto show the ongoing investigation exemption applies.\" Day, 388 I11. App. 3d at 76; see\n\nalso Ill. Att'y Gen. Pub. Acc. Op. No. 17- 011, issued August 14, 2017, at 7- 8 (public body\nimproperly withheld irecord under section 7(1)(d)(vii) because it failed to demonstrate that\ndisclosure would interfere with law enforcement); Baudin v. City ofCrystal Lake, 192 Ill. App. \n3d 530, 536 (2nd Dist. 1989) (\" The classification of information as ' law enforcement' or\ninvestigatory' does not necessarily foreclose access unless it can be shown, in a particular case, \nthat disclosure would interfere with law enforcement and would, therefore, not be in the public\n\ninterest.\"). \n\nIn its response to this office, the Police Department asserted that it partially\n\ndenied the request pursuant\n\nto section 7(1)(d)(vii) because of \" ongoing open litigation,\" and that\n\nthe report would be made available in its entirety at the conclusion of court proceedings.' \nonly other explanation the Police Department provided is as follows: \n\nThe\n\nThe Defendant\n\nin this report was first chair to the Will\n\nCounty States Attorney and is now a criminal defense\nattorney. \nThere is a special prosecutor from DuPage County assigned\nto this case. \n\ni Judge has requested a Substitution of Judge\nThe Attorney Registration & Disciplinary Commission\nARDC) has sent a subpoena for all records and videos for\nreview. l\n\n1\n\nThe Police Department's explanation for the applicability of the exemption is\n\nconclusory. The Police Department did not provide facts from which this office could conclude\nthat any of the responsive records are exempt\nFurthermore, the Police Department did not explain how the release of these records would\n\nfrom disclosure under section 7(1)(d)(vii). \n\ninvestigation, despite this office's specific request\n\ninterfere with any criminal\ninformation. As discussed above, Illinois courts have made it clear that the mere existence of an\nongoing investigation is an inadequate basis for denying a request. Therefore, this office\nconcludes that the Police Department improperly denied the responsive narratives and video\nrecordings pursuant\n\nto section 7(1)(d)(vii) of FOIA. \n\nfor that\n\nMcCullough (March 10, 2020). \n\nE- mail from Rita Tinker, FOIA Officer, Lockport Police Department, to [ Christina] Lucente- \n\nTo remedy its improper denial, this office requests that the Police Department\n\ndisclose to Mr. Sarver copies of the narrative and video recordings, subject only to permissible\nredactions under section 7 of FOIA (5 ILCS 140/ 7 (West 2018), as amended by Public Acts 101- \n434, effective January 1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August\n23, 2019). Specifically, the Police Department may properly redact information that meets the\ndefinition of \"private information\" pursuant to section 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) \nWest 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- 452, effective\nJanuary 1, 2020; 101E455, effective August 23, 2019), 3 and dates of birth and information that\nwould unavoidably identify third parties who were not arrested pursuant to section 7(1)(c) of\nFOIA (5 ILCS 140/ 7(1)(c) (West 2018), as amended by Public Acts 101- 434, effective January\n1, 2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). If the Police\nDepartment\nmeets the requirements of section 9(a) of FOIA (5 ILCS 140/ 9(a) (West 2018)). \n\nredacts any such information, it should issue to Mr. Sarver a notice of denial\n\nthat\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at (312) 814- 5383 or the Chicago address on the first page of this letter if you have any\n\nquestions. \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE- MCCULLOUG> \n\nAssistant Attorney General\nPublic Access Bureau\n\n61964 f 71 dvii improper pd\n\n3\n\nSection 2(c- 5) of FOIA (5 ILCS 140/ 2(c- 5) (West 2018)) defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber; employee identification number, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical records, home\n\nor personal telephone numbers, and personal email addresses. Private\n\ninformation also includes home address and personal\n\nlicense plates, except as\n\notherwise provided by law or when compiled without possibility of attribution to\nany person."}
{"id":953,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-11-18","case_number":null,"request_numbers":["61967"],"title":"Chicago Public Schools did not violate FOIA by refusing to create new records or answer interrogatories","filename":"61967, issued November 18, 2020.pdf","rel_path":null,"word_count":2491,"summary":"The requester sought selective enrollment test results and call logs from Chicago Public Schools, and the PAC determined that CPS did not violate FOIA because it was not required to create new records or answer interrogatories.","plain_summary":"A requester asked Chicago Public Schools for specific test data and phone call logs. The Attorney General's office found that the school district followed the law because FOIA only requires agencies to provide existing records, not to create new documents or answer general questions about their operations. The case was closed with no further action required.","holding":"Chicago Public Schools did not violate FOIA because it is not required to create new records or answer questions that do not identify specific existing documents.","legal_question":"Whether a public body is required under FOIA to create new records or answer interrogatories in response to a request for information.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Public Schools","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"records creation","subject_description":"The requester sought selective enrollment test data and phone call logs, which the public body argued would require the creation of new records.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Data-Requests/61967%2C%20issued%20November%2018%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["records creation","interrogatories","school records","FOIA request"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 18,  2020\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs.  Annie Righi\n\nFreedom of Information Act Officer\n\nChicago Public Schools\n\nOne North Dearborn Street,  9th Floor\n\nChicago,  Illinois 60602\n\narighi@cps. edu\n\nRE:  FOIA Request\n\nfor Review —  2020 PAC 61967\n\nDear\n\nand Ms.  Righi: \n\nThis determination is issued pursuant\n\nto section 9. 5( 1)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( f) (West 2018)).  For the reasons stated below,  the\n\nPublic Access Bureau concludes that the response by Chicago Public Schools ( CPS)  to\n\nDecember 20,  2019,  FOIA request did not violate FOIA. \n\nOn December 20,  2019, \n\nsubmitted a four- part FOIA request to CPS\n\nseeking: \n\n1.  The selective enrollment\ntest results ( Classical Reading, \nClassical Math,  and Gifted)  of each student enrolled in each\n\nselective enrollment school for Kindergarten and first grade\n\nanonymized to prevent the identification of individual students.  I\n\nam requesting data be provided to me in a spreadsheet -readable\nformat ( e. g.  csv,  xls,  xlxs,  tab -delimited txt,  tab -separated values) \nthat maintains the integrity of the data. \n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois 60601 • (\n\n312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 •-( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Annie Righi\n\nNovember 18,  2020\n\nPage 2\n\nsic 2.]  The complete list of test scores for each student that\ntesting ( Classical Reading, \n\n1. [\ncompleted the selective enrollment\nClassical Math,  and Gifted)  placement\ntests during the 2016- 2017, \n2017- 2018,  2018- 2019 testing periods ( ie the testing that is used to\ndetermine placement\n\nfor the 2018-- 2020 school years), \n\nanonymized to prevent the identification of individual students. \nThis shall include the non -identifying student information\nincluding the raw and normalized scores for the placement test, the\ndate of testing ( month and year), socioeconomic tier of the student, \nsex,  race[,]  ethnicity,  and IEP status of the tested student,  grade, \nthe school they enrolled the year after testing,  subsequent NWEA\nMAP test results for reading and math for those students ( for the\nbeginning,  middle,  and end of year scores and percentiles),  and\nTRC/ Dibels Next test results for those students ( for the beginning, \nmiddle,  and end -of -year scores and percentiles).  I am requesting\ndata be provided to me in a spreadsheet -readable format ( e. g.  csv, \nxls,  xlxs,  tab -delimited txt,  tab -separated values)  that maintains the\n\nintegrity of the data. \n\ninto a CPS school\n\nfor the 2017 through 2020 school\n\n2. [ sic 33 The anonymized data on students offered early\nenrollment\nyears.  Early enrollment students are those with birthdays after the\nconventional cutoff of being age five by September 1st Tor\nkindergarten or equivalent age by September 1st for higher grades. \nI am requesting each student' s placement testing results ( scores\nand percentiles),  socioeconomic tier of the student,  sex,  race, \n\nethnicity,  and IEP status of the tested student,  grade,  the school\nthey enrolled in,  subsequent NWEA MAP test results for reading\nand math for those students ( for the beginning,  middle,  and end of\nyear scores and percentiles),  and TRC/ Dibels Next test results for\n\nthose students ( for the beginning,  middle,  and end - of -year scores\nand percentiles). \nspreadsheet - readable format ( e. g.  csv,  xls,  xlxs,  tab -delimited txt, \ntab -separated values)  that maintains the integrity of the data. \n\nI am requesting data be provided to me in a\n\n3. [ sic 4.]  The dates and call times for all phone calls between\nboth the CPS Office of Diverse Learners and the CPS Office of\nAccess and Equity to and from phone numbers 312- 404- 1880,  773- \n\n\fMs.  Annie Righi\n\nNovember\n\n18,  2020\n\nPage 3\n\n968- 7128,  and 773- 275- 2455 from August 2017 through January\n31,  2020. 1'\n\n1\n\nOn February 20,  2020,  CPS responded that the request failed to cite a public\n\nrecord for review,  would require the manual creation of records not maintained by CPS in the\nnormal course of business,  would require CPS to conduct research, and that certain information\nwas exempt under section 7. 5( r)  of FOIA. 2 CPS further contended that part four of the request\n\nalso seeks answers to questions.  On February 28,  2020, \nReview contesting CPS' s response. \n\nsubmitted a Request\n\nfor\n\nasked it to provide this office with a detailed written response to the allegations in the Request\n\nOn March 16,  2020,  this office sent a copy of the Request\n\nfor Review to CPS and\n\nfor Review.  On April 17,  2020,  CPS provided a confidential\ncover letter notifying this office of its confidential\ncover letter to\n\nhe replied on May 11,  2020. \n\nresponse to this office,  along with a\n\nresponse.'  After this office forwarded the\n\nDETERMINATION\n\nUnder section 1. 2 of FOIA ( 5 ILCS 140/ 1. 2 ( West 2018)), \"[ a] 11 records in the\n\ncustody or possession of a public body are presumed to be open to inspection and copying.\" \nSection 3( a)  of FOIA ( 5 ILCS 140/ 3( a) ( West 2018),  as amended by Public Act 101- 081, \neffective July 12,  2019)  provides that \"[ e] ach public body shall make available to any person for\ninspection or copying all public records,  except as otherwise provided in Section 7 and 8. 5 of this\nAct.\" \n\n2019).  We refer to the numbered parts, as parts one through four, as indicated in the brackets above. \n\nFOIA request on Chicago Public Schools FOIA Center from\n\nDecember 20, \n\n25 ILCS 140/ 7. 5( r) ( West 2018),  as amended by Public Acts 101- 013,  effective June 12,  2019; \n101- 027,  effective June 25,  2019;  101- 081,  effective July 12,  2019;  101- 221,  effective January 1,  2020;  101- 236, \neffective January 1,  2020;  101- 375,  effective August 16; 2019;  101- 377,  effective August 16,  2019;  101- 452, \neffective January 1,  2020;  101- 466, effective January 1,  2020;  101- 600,  effective December 6,  2019;  101- 620, \neffective December 20,  2019;  101- 649,  effective July 7,  2020. \n\n3Because CPS claimed its entire response was confidential,  this office is not at liberty to reveal\n\nits\n\nin this determination. \n\nIn the future,  CPS should provide this office with an additional\n\ncontent\nforward to the requester with any confidential information redacted,  in accordance with section 9. 5( d)  of FOIA ( 5\nILCS 140/ 9. 5( d) ( West 2018) (\" The Public Access Counselor shall forward a copy of the answer to the person\nsubmitting the request for review, with any alleged confidential information to which the request pertains redacted\nfrom the copy.\")). \n\nresponse letter to\n\n\fMs.  Annie Righi\n\nNovember 18,  2020\n\nPage 4\n\nDatabase Records\n\nFOIA \" is not intended to create an obligation on the part of any public body to\n\n5 ILCS 140/ 1 ( West 2018).  Thus,  FOIA does not require a public body to compile data\n\nmaintain or prepare any public record which was not maintained or prepared by such public\nbody[.]\" \nthat\nit does not ordinarily keep.  Hiles v.  Waubonsee Community College,  2016 IL App ( 2d) \n150836, ¶ 75,  56 N. E. 3d 1049,  1065 ( 2016).  See also Chicago Tribune Co.  v.  Department of\nFinancial and Professional Regulation,  2014 IL App 4th 130427, ¶ 133- 34,  8 N. E. 3d 11,  19\n2014) (\"[\n\na]  request to inspect or copy must reasonably identify a public record and not general\ndata,  information,  or statistics.\");  Kenyon v.  Garrels,  184 I11.  App.  3d 28,  32 ( 4th Dist.  1989) ( a\npublic body is not required to create records in order to respond to a FOIA request).  However, \ndata kept in databases constitute public records subject to the requirements of FOIA.  See Hites, \n\n2016 IL App ( 2d)  150836, 180- 81,  56 N. E. 3d at 1066- 67. \n\nIn Hites,  the Illinois Appellate Court analyzed a series of requests for information\n\ncontained in multiple databases.  The Hites court distinguished requests for raw data maintained\n\nin a public body' s databases from requests seeking information about\nrequire the creation of new records.  The court analogized a database to a file cabinet and stated\n\nthe data,  which would\n\nthat \" the data that populates the database is like the files.  FOIA permits a proper request for a\n\nsingle file,  some of the files,  or all of the files.\"  Hiles,  2016 IL App ( 2d)  150836, ¶¶ 71,  56\nN. E. 3d at 1065.  The court held that compiling raw data already maintained in databases and\navailable through computerized searches of the public body's databases did not involve the\ncreation of new records,  even if the public body had to create and apply computer programming\nor coding to retrieve the information.  Hites,  2016 IL App ( 2d)  150836, 1175- 81,  56 N. E. 3d at\n1065- 67. \n\nThis office has reviewed\n\nRequest\n\nfor Review,  CPS' s confidential\n\nresponse,  and\nrequest,  CPS informed him that \" CPS does not maintain any one record or database that reflects\nthe testing and demographics data that you seek.  In order to respond to those portions of your\nrequest,  the CPS would be required to compile data from multiple sources and district\n\nreply.  In response to the first three parts of\n\nFOIA\n\ndepartments,  then combine the data,  creating new record( s)  not maintained by the District in the\nfor Review asserts that CPS should provide\nRequest\nnormal course of business.\" 4\nhim the records because it maintains the records in its systems.  However,  in contrast to Hites, \n\nthe available information indicates that CPS would need to do more than compile existing data in\norder to comply with the first three parts of\na public body to collect,  cross- reference,  match,  and collate various data scattered through its\ndepartments and multiple databases.  See Martinez v.  Cook Cty.  State' s Attorney' s Office,  2018 IL\nApp ( 1st)  163153, ¶ 25,  103 N. E. 3d 351,  357 ( 2018) ( request\n\nFOIA request.  FOIA does not require\n\nthat would have required public\n\n4FOIA response on Chicago Public Schools FOIA Center from Annie Righi,  Freedom of\n\nInformation Officer,  Chicago Public Schools, \n\nto\n\nFebruary 20,  2020). \n\n\fMs.  Annie Righi\n\nNovember 18,  2020\n\nPage 5\n\nbody to manually review its files and compile each \" instance\"  in which it \" used\"  specific\ninformation did not reasonably describe a record but instead was a general\nwas \" scattered throughout [\n\nthe public body' s]  records\").  This office has located no legal support\n\nfor data that\n\nrequest\n\nfor the notion that FOIA requires a public body to compile information from multiple sources\nand create a custom report\nresponse to the first three parts of\n\nfor a requester.  Accordingly,  this office concludes that CPS' s\n\nrequest did not violate FOIA. \n\nIn his reply, \n\nclarified that part one of his request was \" for the\n\nselective enrollment\nenrollment schools for the 2021 school year. * * * \n\ntesting that was completed this school year for admission into selective\n\nI am requesting just the scores for the\n\nrecently completed testing to examine anomalies in the data. i5 In the event that\nwishes to confer with CPS to clarify the information he is seeking and to discuss options for\nobtaining some of the information he requested,  this office asks that CPS consult with him about\nwhether the release of those records would be feasible. 6\n\nDates and Times of Phone Calls\n\nThe requirements of FOIA apply to \" public records,\"  which are existing records\nhaving been prepared by or for,  or having been or being used by,  received by,  in the possession\nof, or under the control of any public body.\"  5 ILCS 140/ 2( c) ( West 2018).  However,  a public\nbody is not required to answer questions or generate new records in response to a FOIA request. \nKenyon,  184 I11.  App.  3d at32. \n\nPart four of\n\nFOIA request sought the dates and call times for certain\n\nphone calls spanning nearly two and a half years.  CPS responded to\nfailed to request a record but asked questions about a large volume of records which it would\n\nthat his request\n\n2020). \n\nE- mail from\n\nto Senior Assistant Attorney General [ Edie]  Steinberg ( May 11, \n\n6Because we conclude that CPS did not improperly deny the first three parts of\n\nFOIA request,  it is not necessary to address the issue of whether the requested anonymized records were exempt\nfrom disclosure under section 7. 5( r)  of FOIA,  which exempts from inspection and copying information prohibited\nfrom being disclosed by the Illinois School Student Records Act ( ISSRA) ( 105 ILCS 10/ 1 et seq. ( West 2018)). \nHowever,  this office notes that while section 6( a)  of ISSRA ( 105 ILCS 10/ 6( a) ( West 2018))  provides that \"[ n] o\nschool student records or information contained therein may be released,  transferred, disclosed or otherwise\ndisseminated[,]\"  a masked record,  which deletes or redacts individual identifying information, is not exempt from\ndisclosure under ISSRA.  See Bowie v Evanston Community Consolidated School District 65,  128 111 2d 373,  379\n1989) ( records of aggregate test scores of a large number of student in multiple grades redacted of identifying\ninformation and scrambled not exempt as a school student record).  See also 111.  Att'y Gen.  PAC Req.  Rev.  Ltr. \n48297,  issued October 3,  2017 ( data regarding the names of grammar schools from which freshmen enrolled in\ncertain selective enrollment high schools did not identify individual students even though ten or less students\nenrolled from certain schools;  the data did not include additional details about the students,  such as demographic\n\ninformation or a description of a well- publicized event\n\ninvolving the students). \n\n\fMs.  Annie Righi\n\nNovember 18,  2020\n\nPage 6\n\nneed to review and then create a new record to answer his questions. \n\nIndeed, \n\ndid not\n\nidentify records which he wished to be made available to him,  and CPS was not obligated under\ninquiry questions regarding the dates and times of certain\nFOIA to answer\nphone calls.  See Kenyon,  184 Ill.  App.  3d at 32- 33.  Because\nfor Review\nlogs and suggested that he could provide a more narrow range of\nstated that he was seeking call\nfor the specific call\ndates for those records, \nlogs he seeks: \n\nmay wish to submit a new FOIA request\n\nRequest\n\ngeneral\n\nThe Public Access Counselor\n\nhas determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the bottom of the first\n\npage of this letter. \n\nVery truly yours, \n\nSTEINBERG\n\nSenior Assistant Attorney Cod\nPublic Access Bureau\n\n61967 f 3a proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Selective enrollment test data and phone call logs","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-61967/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nNovember 18, 2020\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Annie Righi\n\nFreedom of Information Act Officer\n\nChicago Public Schools\n\nOne North Dearborn Street, 9th Floor\n\nChicago, Illinois 60602\n\narighi@cps. edu\n\nRE: FOIA Request\n\nfor Review — 2020 PAC 61967\n\nDear\n\nand Ms. Righi: \n\nThis determination is issued pursuant\n\nto section 9. 5(1) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(f) (West 2018)). For the reasons stated below, the\n\nPublic Access Bureau concludes that the response by Chicago Public Schools (CPS) to\n\nDecember 20, 2019, FOIA request did not violate FOIA. \n\nOn December 20, 2019, \n\nsubmitted a four- part FOIA request to CPS\n\nseeking: \n\n1. The selective enrollment\ntest results (Classical Reading, \nClassical Math, and Gifted) of each student enrolled in each\n\nselective enrollment school for Kindergarten and first grade\n\nanonymized to prevent the identification of individual students. I\n\nam requesting data be provided to me in a spreadsheet -readable\nformat (e. g. csv, xls, xlxs, tab -delimited txt, tab -separated values) \nthat maintains the integrity of the data. \n\nsic 2.] The complete list of test scores for each student that\ntesting (Classical Reading, \n\n1. [\ncompleted the selective enrollment\nClassical Math, and Gifted) placement\ntests during the 2016- 2017, \n2017- 2018, 2018- 2019 testing periods (ie the testing that is used to\ndetermine placement\n\nfor the 2018-- 2020 school years), \n\nanonymized to prevent the identification of individual students. \nThis shall include the non -identifying student information\nincluding the raw and normalized scores for the placement test, the\ndate of testing (month and year), socioeconomic tier of the student, \nsex, race[,] ethnicity, and IEP status of the tested student, grade, \nthe school they enrolled the year after testing, subsequent NWEA\nMAP test results for reading and math for those students (for the\nbeginning, middle, and end of year scores and percentiles), and\nTRC/ Dibels Next test results for those students (for the beginning, \nmiddle, and end -of -year scores and percentiles). I am requesting\ndata be provided to me in a spreadsheet -readable format (e. g. csv, \nxls, xlxs, tab -delimited txt, tab -separated values) that maintains the\n\nintegrity of the data. \n\ninto a CPS school\n\nfor the 2017 through 2020 school\n\n2. [ sic 33 The anonymized data on students offered early\nenrollment\nyears. Early enrollment students are those with birthdays after the\nconventional cutoff of being age five by September 1st Tor\nkindergarten or equivalent age by September 1st for higher grades. \nI am requesting each student's placement testing results (scores\nand percentiles), socioeconomic tier of the student, sex, race, \n\nethnicity, and IEP status of the tested student, grade, the school\nthey enrolled in, subsequent NWEA MAP test results for reading\nand math for those students (for the beginning, middle, and end of\nyear scores and percentiles), and TRC/ Dibels Next test results for\n\nthose students (for the beginning, middle, and end - of -year scores\nand percentiles). \nspreadsheet - readable format (e. g. csv, xls, xlxs, tab -delimited txt, \n\n968- 7128, and 773- 275- 2455 from August 2017 through January\n31, 2020. 1'\n\n1\n\nOn February 20, 2020, CPS responded that the request failed to cite a public\n\nrecord for review, would require the manual creation of records not maintained by CPS in the\nnormal course of business, would require CPS to conduct research, and that certain information\nwas exempt under section 7. 5(r) of FOIA. 2 CPS further contended that part four of the request\n\nalso seeks answers to questions. On February 28, 2020, \nReview contesting CPS's response. \n\nsubmitted a Request\n\nfor\n\nasked it to provide this office with a detailed written response to the allegations in the Request\n\nOn March 16, 2020, this office sent a copy of the Request\n\nfor Review to CPS and\n\nfor Review. On April 17, 2020, CPS provided a confidential\ncover letter notifying this office of its confidential\ncover letter to\n\nhe replied on May 11, 2020. \n\nresponse to this office, along with a\n\nresponse.' After this office forwarded the\n\nDETERMINATION\n\nUnder section 1. 2 of FOIA (5 ILCS 140/ 1. 2 (West 2018)), \"[ a] 11 records in the\n\ncustody or possession of a public body are presumed to be open to inspection and copying.\" \nSection 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2018), as amended by Public Act 101- 081, \neffective July 12, 2019) provides that \"[ e] ach public body shall make available to any person for\ninspection or copying all public records, except as otherwise provided in Section 7 and 8. 5 of this\nAct.\" \n\n2019). We refer to the numbered parts, as parts one through four, as indicated in the brackets above. \n\nFOIA request on Chicago Public Schools FOIA Center from\n\nDecember 20, \n\n25 ILCS 140/ 7. 5(r) (West 2018), as amended by Public Acts 101- 013, effective June 12, 2019; \n101- 027, effective June 25, 2019; 101- 081, effective July 12, 2019; 101- 221, effective January 1, 2020; 101- 236, \neffective January 1, 2020; 101- 375, effective August 16; 2019; 101- 377, effective August 16, 2019; 101- 452, \neffective January 1, 2020; 101- 466, effective January 1, 2020; 101- 600, effective December 6, 2019; 101- 620, \neffective December 20, 2019; 101- 649, effective July 7, 2020. \n\n3 Because CPS claimed its entire response was confidential, this office is not at liberty to reveal\n\nits\n\nin this determination. \n\nIn the future, CPS should provide this office with an additional\n\ncontent\nforward to the requester with any confidential information redacted, in accordance with section 9. 5(d) of FOIA (5\nILCS 140/ 9. 5(d) (West 2018) (\" The Public Access Counselor shall forward a copy of the answer to the person\nsubmitting the request for review, with any alleged confidential information to which the request pertains redacted\n\nDatabase Records\n\nFOIA \" is not intended to create an obligation on the part of any public body to\n\n5 ILCS 140/ 1 (West 2018). Thus, FOIA does not require a public body to compile data\n\nmaintain or prepare any public record which was not maintained or prepared by such public\nbody[.]\" \nthat\nit does not ordinarily keep. Hiles v. Waubonsee Community College, 2016 IL App (2d) \n150836, ¶ 75, 56 N. E. 3d 1049, 1065 (2016). See also Chicago Tribune Co. v. Department of\nFinancial and Professional Regulation, 2014 IL App 4th 130427, ¶ 133- 34, 8 N. E. 3d 11, 19\n2014) (\"[\n\na] request to inspect or copy must reasonably identify a public record and not general\ndata, information, or statistics.\"); Kenyon v. Garrels, 184 I11. App. 3d 28, 32 (4th Dist. 1989) (a\npublic body is not required to create records in order to respond to a FOIA request). However, \ndata kept in databases constitute public records subject to the requirements of FOIA. See Hites, \n\n2016 IL App (2d) 150836, 180- 81, 56 N. E. 3d at 1066- 67. \n\nIn Hites, the Illinois Appellate Court analyzed a series of requests for information\n\ncontained in multiple databases. The Hites court distinguished requests for raw data maintained\n\nin a public body's databases from requests seeking information about\nrequire the creation of new records. The court analogized a database to a file cabinet and stated\n\nthe data, which would\n\nthat \" the data that populates the database is like the files. FOIA permits a proper request for a\n\nsingle file, some of the files, or all of the files.\" Hiles, 2016 IL App (2d) 150836, ¶¶ 71, 56\nN. E. 3d at 1065. The court held that compiling raw data already maintained in databases and\navailable through computerized searches of the public body's databases did not involve the\ncreation of new records, even if the public body had to create and apply computer programming\nor coding to retrieve the information. Hites, 2016 IL App (2d) 150836, 1175- 81, 56 N. E. 3d at\n1065- 67. \n\nThis office has reviewed\n\nRequest\n\nfor Review, CPS's confidential\n\nresponse, and\nrequest, CPS informed him that \" CPS does not maintain any one record or database that reflects\nthe testing and demographics data that you seek. In order to respond to those portions of your\nrequest, the CPS would be required to compile data from multiple sources and district\n\nreply. In response to the first three parts of\n\nFOIA\n\ndepartments, then combine the data, creating new record(s) not maintained by the District in the\nfor Review asserts that CPS should provide\nRequest\nnormal course of business.\" 4\nhim the records because it maintains the records in its systems. However, in contrast to Hites, \n\nthe available information indicates that CPS would need to do more than compile existing data in\norder to comply with the first three parts of\na public body to collect, cross- reference, match, and collate various data scattered through its\ndepartments and multiple databases. See Martinez v. Cook Cty. State's Attorney's Office, 2018 IL\nApp (1st) 163153, ¶ 25, 103 N. E. 3d 351, 357 (2018) (request\n\nFOIA request. FOIA does not require\n\nbody to manually review its files and compile each \" instance\" in which it \" used\" specific\ninformation did not reasonably describe a record but instead was a general\nwas \" scattered throughout [\n\nthe public body's] records\"). This office has located no legal support\n\nfor data that\n\nrequest\n\nfor the notion that FOIA requires a public body to compile information from multiple sources\nand create a custom report\nresponse to the first three parts of\n\nfor a requester. Accordingly, this office concludes that CPS's\n\nrequest did not violate FOIA. \n\nIn his reply, \n\nclarified that part one of his request was \" for the\n\nselective enrollment\nenrollment schools for the 2021 school year. * * * \n\ntesting that was completed this school year for admission into selective\n\nI am requesting just the scores for the\n\nrecently completed testing to examine anomalies in the data. i5 In the event that\nwishes to confer with CPS to clarify the information he is seeking and to discuss options for\nobtaining some of the information he requested, this office asks that CPS consult with him about\nwhether the release of those records would be feasible. 6\n\nDates and Times of Phone Calls\n\nThe requirements of FOIA apply to \" public records,\" which are existing records\nhaving been prepared by or for, or having been or being used by, received by, in the possession\nof, or under the control of any public body.\" 5 ILCS 140/ 2(c) (West 2018). However, a public\nbody is not required to answer questions or generate new records in response to a FOIA request. \nKenyon, 184 I11. App. 3d at32. \n\nPart four of\n\nFOIA request sought the dates and call times for certain\n\nphone calls spanning nearly two and a half years. CPS responded to\nfailed to request a record but asked questions about a large volume of records which it would\n\nthat his request\n\n2020). \n\nE- mail from\n\nto Senior Assistant Attorney General [ Edie] Steinberg (May 11, \n\n6 Because we conclude that CPS did not improperly deny the first three parts of\n\nFOIA request, it is not necessary to address the issue of whether the requested anonymized records were exempt\nfrom disclosure under section 7. 5(r) of FOIA, which exempts from inspection and copying information prohibited\nfrom being disclosed by the Illinois School Student Records Act (ISSRA) (105 ILCS 10/ 1 et seq. (West 2018)). \nHowever, this office notes that while section 6(a) of ISSRA (105 ILCS 10/ 6(a) (West 2018)) provides that \"[ n] o\nschool student records or information contained therein may be released, transferred, disclosed or otherwise\ndisseminated[,]\" a masked record, which deletes or redacts individual identifying information, is not exempt from\ndisclosure under ISSRA. See Bowie v Evanston Community Consolidated School District 65, 128 111 2d 373, 379\n1989) (records of aggregate test scores of a large number of student in multiple grades redacted of identifying\ninformation and scrambled not exempt as a school student record). See also 111. Att'y Gen. PAC Req. Rev. Ltr. \n48297, issued October 3, 2017 (data regarding the names of grammar schools from which freshmen enrolled in\ncertain selective enrollment high schools did not identify individual students even though ten or less students\nenrolled from certain schools; the data did not include additional details about the students, such as demographic\n\nneed to review and then create a new record to answer his questions. \n\nIndeed, \n\ndid not\n\nidentify records which he wished to be made available to him, and CPS was not obligated under\ninquiry questions regarding the dates and times of certain\nFOIA to answer\nphone calls. See Kenyon, 184 Ill. App. 3d at 32- 33. Because\nfor Review\nlogs and suggested that he could provide a more narrow range of\nstated that he was seeking call\nfor the specific call\ndates for those records, \nlogs he seeks: \n\nmay wish to submit a new FOIA request\n\nRequest\n\ngeneral\n\nThe Public Access Counselor\n\nhas determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at the Chicago address listed on the bottom of the first\n\npage of this letter. \n\nVery truly yours, \n\nSTEINBERG\n\nSenior Assistant Attorney Cod\nPublic Access Bureau\n\n61967 f 3a proper sd"}
{"id":954,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-06-24","case_number":null,"request_numbers":["62182"],"title":"Village of Tinley Park did not violate FOIA by providing YouTube link to meeting video","filename":"62182, issued June 24, 2024.pdf","rel_path":null,"word_count":1352,"summary":"The requester sought a copy of a Village Board meeting video, which the Village denied by providing a link to its YouTube page. The PAC determined that providing a link to a publicly available video on a hosting service satisfies the Village's obligations under FOIA.","plain_summary":"A citizen asked the Village of Tinley Park for a copy of a recorded board meeting, but the Village only provided a link to the video on YouTube. The citizen complained that this did not provide reasonable access to the record. The Attorney General's office ruled that directing a requester to a publicly available online video is a sufficient way to provide access under FOIA.","holding":"The Village of Tinley Park did not violate FOIA by providing a link to a YouTube video of a public meeting instead of a physical copy.","legal_question":"Does a public body satisfy its FOIA obligations by providing a link to a video of a public meeting hosted on a third-party platform rather than providing a direct copy of the file?","disposition":"no_violation","primary_statute":["5 ILCS 140/8.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Tinley Park","requesting_party":"Anonymous","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The requester sought a physical copy of a recorded Village Board meeting video that was already available online.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_d/62182%2C%20issued%20June%2024%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["video recording","public meeting","YouTube","access to records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"June 24, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Laura Godette\nDeputy Village Clerk\nVillage of Tinley Park\nlgodette@tinleypark. org\n\nRE:  FOIA Request for Review –  2020 PAC 62182\n\nDear\n\nand Ms. Godette: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (5 ILCS 140/ 9.5(f) (West 2022),  as amended by\nPublic Act 103- 069, effective January 1, 2024).   For the reasons that follow, the Public Access\nBureau concludes that the response by the Village of Tinley Park ( Village)  to\n\nFebruary 21, 2020,  request did not violate FOIA. \n\nOn February 21, 2020, \n\nsubmitted a FOIA request to the Village\n\nseeking a copy of the video of the February 18, 2020 Village Board meeting.  On February 28, \n2020,  the Village denied the video pursuant to section 8.5 of FOIA ( 5 ILCS 140/ 8.5 (West\n2018))  and directed him to a recording of the meeting on the Village' s YouTube page.  \n\nOn March 4, 2020, \n\nsubmitted a follow- up request to the Village, \nnoting that he was unable to copy the video from the referenced web page and requested a copy\nof the recording.   On March 12, 2020,  the Village denied this request,  stating that it was a\n\n\fMs. Laura Godette\nJune 24, 2024\nPage 2\n\nrepeated request for a record that was properly denied and thus unduly burdensome pursuant to\nsection 3(g) of FOIA ( 5 ILCS 140/ 3(g) (West 2018),  as amended by Public Act 101- 081, \neffective July 12, 2019).  \n\nOn March 13, 2020, \n\nsubmitted the above- referenced Request for\n\nReview disputing the Village' s denial of his request.  He argued that the Village' s \" failure to\nprovide a copy of the video denies [ him]  reasonable access to the document as required by\nFOIA[,]\"  as it would require him to have an \" internet capable device as well as access to the\ninternet and the Village' s web page at any time [ he]  and others need to access and review the\nmeeting for various purposes.\" 1\n\nOn March 19, 2024,  this office forwarded a copy of this Request for Review to\n\nVillage,  requesting an explanation of the legal and factual bases for section 8.5 and section 3(g).   \nWhile this office never received a formal response,  this office and the Village exchanged\ncorrespondence over the next two years.  Within these communications involved questions\nregarding whether the issue had been incorporated into a lawsuit and as a result,  would render\nthis matter moot under section 11 of FOIA.  5 ILCS 140/ 11 (West 2018).   This office withdraws\nits request that the Village address the merits of the Request for Review as we have determined it\nis unnecessary for the reasons explained below. \n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with this Act.\"  5 ILCS\n140/ 1 (West 2018).   Section 8.5(a) of FOIA ( 5 ILCS 140/ 8.5(a)) ( West 2018))  provides that \" a\npublic body is not required to copy a public record that is published on the public body' s website.  \nThe public body shall notify the requester that the public record is available online and direct the\nrequester to the website where the record can be reasonably accessed.\"  ( Emphasis added.)  \nSection 8.5(b) of FOIA ( 5 ILCS 140/ 8.5(b) (West 2018))  further provides: \n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant to subsection ( a)  of this Section,  the requester\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online,  and the public\nbody shall make the requested record available for inspection and\ncopying as provided in Section 3 of this Act. \n\nGeneral ( March 13, 2020),  at 2-3.  \n\n1Letter from\n\nto Sarah Pratt,  Public Access Counselor,  Office of the Attorney\n\n\fMs. Laura Godette\nJune 24, 2024\nPage 3\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly.   DeLuna v. Burciaga,  223 Ill. 2d 49, 59\n2006).  \" The most reliable indicator of legislative intent is the statutory language,  given its plain\nand ordinary meaning.\"   Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶  56.  Where the language of a statute is clear and unambiguous,  a reviewing body\nmay not depart from the plain language by reading into the statute exceptions,  limitations,  or\nconditions that the legislature did not express.\"   Hayashi v. Illinois Department of Financial & \nProfessional Regulation,  2014 IL 116023, ¶  16.  A reviewing body \" has a duty to avoid a\nconstruction of the statute that would defeat the statute' s purpose[.]\"   People v. Latona, 184 Ill. \n2d 260, 269 ( 1998).   \n\nThe information provided to this office and a viewing of the Village' s website\n\ndemonstrates that the recording of the February 18, 2020,  meeting can be accessed on the\nVillage' s YouTube channel through an internet link posted on the Village' s website. 2 3 The plain\nlanguage of section 8.5 of FOIA relieves a public body of the obligation to provide copies of\nrecords if the requester can reasonably access the records on the public body' s website.   \n\ncontends that the requested recording was not reasonably\n\naccessible because he was unable to download and save a copy of the recording and because he\nand others who may wish to review the recording do not have continuous and uninterrupted\naccess to the internet.   Construing section 8.5 in that manner would establish an impossible\nstandard that would defeat its purpose and be contrary to its plain language.  \" Access\"  is defined\nas \" to open or load ( a computer file, an Internet site, etc.)[.]\" 4  \" Copy\"  is defined as \"[ t]o make a\nduplicate of[.]\" 5 If the General Assembly had intended to require public bodies to publish\n\nrecords on their websites in formats that may be copied and saved,  it would have said so\nexpressly.   Instead,  section 8.5 provides merely provides that a requester must able to\nreasonably access the record online[.]\"  \ndid not assert that he is unable to use a\ncomputer or access the Village' s website,  and the Village has no means or obligation to ensure\n\n2Village of Tinley Park,  Village Board Meetings and Agendas,  \n\nhttps:// tinleypark. org/ government/ minutes_ and_ agendas/ village_ board_ minutes_ and_ agendas. php ( last visited June\n22, 2024). \n\n3This office has previously determined that recording that may be accessed clicking on an internet\n\nLink on a public body' s website to recordings posted on another website such as Youtube are \" published\"  on the\npublic body' s website for purposes of section 8.5(a) of FOIA.   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 55627,  issued\nDecember 13, 2021,  at 3) (\" It would be unreasonable to construe FOIA as requiring a public body to embed a video\non its website in order to rely on section 8.5(a), rather than allowing a website link directly to a video hosting service\nsuch as YouTube.\"). \n\n4Merriam- Webster Dictionary,  https:// www.merriam- webster. com/ dictionary/ access ( last visited\n\nJune 22, 2024). \n\nJune 22, 2024).  \n\n5Merriam- Webster Dictionary,  https:// www.merriam- webster. com/ dictionary/ access ( last visited\n\n\fMs. Laura Godette\nJune 24, 2024\nPage 4\n\nthat he has continuous and uninterrupted access to the internet.   Accordingly,  this office\nconcludes that the Village did not improperly deny\nrecording. 6\n\nrequest for a copy of the\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  you may contact me at (312)  814- 3180 or at Matthew. Rogina@ilag. gov\n\nVery truly yours, \n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n\n62182 f 8.5 proper mun\n\nmatter has is moot due to litigation.  \n\n6As a result,  this office does not need to address section 3(g) nor the Village' s assertion that this\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A recorded village board meeting video","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62182/","full_text":"June 24, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Laura Godette\nDeputy Village Clerk\nVillage of Tinley Park\nlgodette@tinleypark. org\n\nRE: FOIA Request for Review – 2020 PAC 62182\n\nDear\n\nand Ms. Godette: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (5 ILCS 140/ 9.5(f) (West 2022), as amended by\nPublic Act 103- 069, effective January 1, 2024). For the reasons that follow, the Public Access\nBureau concludes that the response by the Village of Tinley Park (Village) to\n\nFebruary 21, 2020, request did not violate FOIA. \n\nOn February 21, 2020, \n\nsubmitted a FOIA request to the Village\n\nseeking a copy of the video of the February 18, 2020 Village Board meeting. On February 28, \n2020, the Village denied the video pursuant to section 8.5 of FOIA (5 ILCS 140/ 8.5 (West\n2018)) and directed him to a recording of the meeting on the Village's YouTube page. \n\nOn March 4, 2020, \n\nsubmitted a follow- up request to the Village, \nnoting that he was unable to copy the video from the referenced web page and requested a copy\nof the recording. On March 12, 2020, the Village denied this request, stating that it was a\n\nrepeated request for a record that was properly denied and thus unduly burdensome pursuant to\nsection 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2018), as amended by Public Act 101- 081, \neffective July 12, 2019). \n\nOn March 13, 2020, \n\nsubmitted the above- referenced Request for\n\nReview disputing the Village's denial of his request. He argued that the Village's \" failure to\nprovide a copy of the video denies [ him] reasonable access to the document as required by\nFOIA[,]\" as it would require him to have an \" internet capable device as well as access to the\ninternet and the Village's web page at any time [ he] and others need to access and review the\nmeeting for various purposes.\" 1\n\nOn March 19, 2024, this office forwarded a copy of this Request for Review to\n\nVillage, requesting an explanation of the legal and factual bases for section 8.5 and section 3(g). \nWhile this office never received a formal response, this office and the Village exchanged\ncorrespondence over the next two years. Within these communications involved questions\nregarding whether the issue had been incorporated into a lawsuit and as a result, would render\nthis matter moot under section 11 of FOIA. 5 ILCS 140/ 11 (West 2018). This office withdraws\nits request that the Village address the merits of the Request for Review as we have determined it\nis unnecessary for the reasons explained below. \n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/ 1 (West 2018). Section 8.5(a) of FOIA (5 ILCS 140/ 8.5(a)) (West 2018)) provides that \" a\npublic body is not required to copy a public record that is published on the public body's website. \nThe public body shall notify the requester that the public record is available online and direct the\nrequester to the website where the record can be reasonably accessed.\" (Emphasis added.) \nSection 8.5(b) of FOIA (5 ILCS 140/ 8.5(b) (West 2018)) further provides: \n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant to subsection (a) of this Section, the requester\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online, and the public\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56. Where the language of a statute is clear and unambiguous, a reviewing body\nmay not depart from the plain language by reading into the statute exceptions, limitations, or\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial & \nProfessional Regulation, 2014 IL 116023, ¶ 16. A reviewing body \" has a duty to avoid a\nconstruction of the statute that would defeat the statute's purpose[.]\" People v. Latona, 184 Ill. \n2d 260, 269 (1998). \n\nThe information provided to this office and a viewing of the Village's website\n\ndemonstrates that the recording of the February 18, 2020, meeting can be accessed on the\nVillage's YouTube channel through an internet link posted on the Village's website. 2 3 The plain\nlanguage of section 8.5 of FOIA relieves a public body of the obligation to provide copies of\nrecords if the requester can reasonably access the records on the public body's website. \n\ncontends that the requested recording was not reasonably\n\naccessible because he was unable to download and save a copy of the recording and because he\nand others who may wish to review the recording do not have continuous and uninterrupted\naccess to the internet. Construing section 8.5 in that manner would establish an impossible\nstandard that would defeat its purpose and be contrary to its plain language. \" Access\" is defined\nas \" to open or load (a computer file, an Internet site, etc.)[.]\" 4 \" Copy\" is defined as \"[ t]o make a\nduplicate of[.]\" 5 If the General Assembly had intended to require public bodies to publish\n\nrecords on their websites in formats that may be copied and saved, it would have said so\nexpressly. Instead, section 8.5 provides merely provides that a requester must able to\nreasonably access the record online[.]\" \ndid not assert that he is unable to use a\ncomputer or access the Village's website, and the Village has no means or obligation to ensure\n\n2 Village of Tinley Park, Village Board Meetings and Agendas, \n\nhttps:// tinleypark. org/ government/ minutes_ and_ agendas/ village_ board_ minutes_ and_ agendas. php (last visited June\n22, 2024). \n\n3 This office has previously determined that recording that may be accessed clicking on an internet\n\nLink on a public body's website to recordings posted on another website such as Youtube are \" published\" on the\npublic body's website for purposes of section 8.5(a) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 55627, issued\nDecember 13, 2021, at 3) (\" It would be unreasonable to construe FOIA as requiring a public body to embed a video\non its website in order to rely on section 8.5(a), rather than allowing a website link directly to a video hosting service\nsuch as YouTube.\"). \n\n4 Merriam- Webster Dictionary, https:// www.merriam- webster. com/ dictionary/ access (last visited\n\nJune 22, 2024). \n\nJune 22, 2024). \n\n5 Merriam- Webster Dictionary, https:// www.merriam- webster. com/ dictionary/ access (last visited\n\nthat he has continuous and uninterrupted access to the internet. Accordingly, this office\nconcludes that the Village did not improperly deny\nrecording. 6\n\nrequest for a copy of the\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, you may contact me at (312) 814- 3180 or at Matthew. Rogina@ilag. gov\n\nVery truly yours, \n\nMATTHEW C. ROGINA\nSenior Assistant Attorney General\nPublic Access Bureau\n\n62182 f 8.5 proper mun\n\nmatter has is moot due to litigation. \n\n6 As a result, this office does not need to address section 3(g) nor the Village's assertion that this"}
{"id":955,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-11-21","case_number":null,"request_numbers":["62344"],"title":"Peoria Police Department improperly withheld arrestee names from 1992 murder case records","filename":"62344, issued November.  21, 2024.pdf","rel_path":null,"word_count":2499,"summary":"The requester sought records related to a 1992 murder case, which the Peoria Police Department partially redacted; the PAC determined the Department properly redacted witness and third-party information but improperly redacted the names of arrestees.","plain_summary":"A requester asked for police records from a 1992 murder case, but the police department blacked out several names. The Attorney General's office reviewed the records and decided that while the police were allowed to hide the names of witnesses and third parties, they were not allowed to hide the names of the people who were arrested. The police have been asked to provide a new copy of the records with the arrestees' names visible.","holding":"The Peoria Police Department improperly redacted the names of arrestees from the requested records.","legal_question":"Whether the Peoria Police Department properly applied FOIA exemptions 7(1)(b) and 7(1)(c) to redact the names of witnesses, third parties, and arrestees from investigative records.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Peoria Police Department","requesting_party":"Ms. Celeste Stack","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought investigative records and photographs related to a 1992 murder case.","ocr_status":"ok","ocr_quality":93.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iv/62344%2C%20issued%20November.%20%2021%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","redaction","arrestee names","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"November 21, 2024\n\nVia electronic mail\nMs. Celeste Stack\nAttorney\nHale &  Monico\n[street address redacted for site publication -- see original PDF]\ncelestestewartstack@gmail. com\n\nVia electronic mail\nMs. Rebecca Boland\nFOIA Officer\nPeoria Police Department\n600 Southwest Adams Street\nPeoria,  Illinois 61602\nrboland@peoriagov. org\n\nRE:  FOIA Request for Review –  2020 PAC 62344\n\nDear Ms. Stack and Ms. Boland: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)).   For the reasons that follow, the\nPublic Access Bureau concludes that the Peoria Police Department ( Department)  did not\nimproperly redact information that would identify witnesses or third parties from the records\nresponsive to Ms. Celeste Stack' s FOIA request,  but improperly redacted references to the\narrestees.  \n\nOn January 15, 2020,  Ms. Stack submitted a FOIA request to the Department\n\nseeking copies of all records,  including photographs and investigative reports,  related to a\nmurder case against a named person from 1992.   On January 30, 2020,  the Department\nresponded by providing Ms. Stack with copies of records but redacted certain information\n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 2\n\npursuant to sections 7(1)( b) and 7(1)(c) of FOIA. 1 On March 27, 2020,  Ms. Stack submitted the\nabove- referenced Request for Review contesting the Department' s partial denial of her FOIA\nrequest.  \n\nOn April 7, 2020,  this office forwarded a copy of Ms. Stack' s Request for Review\n\nto the Department and asked it to furnish unredacted copies of the responsive records for this\noffice' s confidential review,  together with a detailed explanation of the factual and legal bases for\nthe asserted exemptions.   On April 17, 2020,  the Department\nStack with copies of the records with considerably fewer redactions and a written response\nstating that it had redacted certain information pursuant to sections 7(1)(a),  7(1)(b), 7(1)( c), \n7(1)(d)( iv), and 7(1)( d)( vi) of FOIA. 2 In conjunction with section 7(1)(a),  the Department cited\nsection 1-7 of the Juvenile Court Act of 1987 ( JCA). 3 On April 30, 2020,  Ms. Stack confirmed\nreceipt of the Department' s supplemental\n\nresponse and responded by stating:  \n\ninstead elected to provide Ms. \n\nUnfortunately,  the revised production is also impossible to\ndecipher as all the names of the witnesses,  etc have been erased.  \nAgain,  these records were produced in court in discovery,  were\npart of a public trial and the records from the trial and multiple\nappeals are all in the public domain.   Peoria has added the claim\nthat some juveniles were interviewed but fails to designate which\nerased materials are actually from juveniles.   In sum,  Peoria' s\nrevisions do nothing to improve the situation as the materials are\nstill impossible to decipher.[ 4] \n\nBefore proceeding,  this office notes that section 7(1)(a) and the JCA are inapplicable because the\nrecords do not concern minors suspected of criminal offenses;  rather,  as explained below,  a\nminor witness'  identity falls within the scope of other exemptions the Department cited. \n\nOn May 1, 2020,  this office received from the Department unredacted copies of\nthe records sent to Ms. Stack on April 17, 2020.   Later,  on March 18, 2021,  when an Assistant\nAttorney General ( AAG) in the Public Access Bureau followed up with Ms. Stack,  she advised\nthat she was still seeking unredacted copies of the records because:  \" The case file is 20 years\nold, no investigation is ongoing.   In fact, someone was convicted and served an entire sentence.  \n\n15 ILCS 140/7(1)(b), (1)(c) (West 2019 Supp.). \n\n25 ILCS 140/7(1)( a), ( 1)(b), (1)(c), ( 1)(d)(iv), (1)(d)(vi) (West 2019 Supp.).  \n\n3705 ILCS 405/ 1-7 (West 2018). \n\n4E- mail from Celeste Stewart Stack to Ms. [ Sarah]  Pratt ( April 30, 2020).  \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 3\n\nPeoria redacted factual details so that the documents are worthless as they cannot be followed or\nunderstood.   This violates the purpose of FOIA.\" 5\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/ 1.2 (West 2022).   The exemptions from disclosure are to be narrowly construed.   Lieber v. \nBoard of Trustees of Southern Illinois University,  176 Ill. 2d 401, 407 ( 1997).   \n\nIn its revised response to the request,  the Department explained that it redacted\n\nthe names and private information of persons who provided information to the police and other\npersons mentioned in the reports pursuant to sections 7(1)(b) and 7(1)(d)( iv) of FOIA, and that it\nalso redacted information that would constitute a clearly unwarranted invasion of personal\nprivacy pursuant to section 7(1)(c).  As discussed in further detail below,  the Department\nprimarily redacted discrete information pertaining to witnesses and third parties,  leaving in a\nlarge volume of intelligible information.   Accordingly,  it is not evident why Ms. Stack alleges\nthat the redacted records are indecipherable and worthless. \n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"  \nSection 2(c-5) of FOIA 6 defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number, \ndriver' s license number,  employee identification number,  biometric\nidentifiers,  personal financial\naccess codes,  medical records,  home or personal telephone\nnumbers,  and personal email addresses.  Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person.   \n\ninformation,  passwords or other\n\nlicense plates,  except as\n\nThis office' s review confirmed that many of the redactions are of \"unique\nidentifiers\"  that are expressly defined as \" private information,\"  including social security\nnumbers,  home or personal telephone numbers,  and home addresses.   Although Ms. Stack\nappears to argue that the asserted exemptions,  which include section 7(1)( b),  cannot apply\nbecause the homicide occurred decades ago and the police reports were part of the prosecution\n\n5E- mail from Celeste Stack to Ms. [ Suzanne]  Borland ( March 18, 2021).  \n\n65 ILCS 140/2(c-5) (West 2018). \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 4\n\nand appeals,  there is no basis in FOIA from which this office could conclude that the protections\nof section 7(1)(b) expire under such circumstances.   Therefore,  the Department did not\nimproperly redact private information pursuant to section 7(1)(b).  \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal information\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy,  unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"   Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject' s right to privacy outweighs any legitimate public interest in obtaining\nthe information.\"   Section 7(1)(c) also contains an exception providing that \"[ t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"   \n\nIn contrast to the identities of arrestees,  which generally are not exempt from\n\nin an underlying incident but\n\ndisclosure under section 7(1)(c), 7 this office has consistently determined that the disclosure of\nthe identities of third parties who have no direct involvement\nwhose names appear incidentally in a police report constitutes a clearly unwarranted invasion of\npersonal privacy.   See,  e.g., Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 26558,  issued January 7, 2014,  at\n3; see also Mays v. Drug Enforcement Administration,  234 F.3d 1324,  1327 ( D.C. Cir. 2000) \nAbsent exceptional circumstances,  the balance [ between the public interest in disclosure and\nthe right to privacy]  categorically favors withholding the names and addresses of third parties as\" \nsuch information does not provide insight into the conduct or performance of a government\nagency);  Ill. Att'y Gen.  Pub.  Acc. Op. No. 22-005, issued March 24, 2022,  at 10 (\" The\ncomplainants,  as well as witnesses and third parties described incidentally in the complaints, \nhave legitimate privacy interests in the disclosure of their identities.\").    \n\nAdditionally,  section 7(1)(d)(iv) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would:  \n\n7See 5 ILCS 140/ 2.15(a) ( West 2020) ( requiring public disclosure of information that identifies\n\neach arrestee within 72 hours after arrest);  see also Ill. Att'y Gen.  Pub.  Acc. Op. No. 12- 006,  issued March 16, 2012, \nat 7 (concluding that the disclosure of the identities of arrestees and basic facts about their arrests and the related\ninvestigations would not constitute a clearly unwarranted invasion of personal privacy). \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 5\n\nunavoidably disclose the identity of a confidential\n\niv) \nsource,  confidential\nconfidential source,  or persons who file complaints with or\nprovide information to administrative,  investigative,  law\nenforcement,  or penal agencies[.]  ( Emphasis added.)  \n\ninformation furnished only by the\n\nThis provision allows police departments to protect the anonymity of both confidential\ninformants and other persons who provide them with information.   Chicago Alliance for\nNeighborhood Safety v. City of Chicago,  348 Ill. App. 3d 188, 200-01 (2004) ( names and\naddresses of beat meeting participants properly redacted because they provided information to\npolice department).   Witness statements may be withheld in their entireties only if disclosure of\nthe contents \" would necessarily result in the disclosure of the identity of that source\"  of\ninformation and,  therefore, \" redaction of the [ records]  cannot be meaningfully accomplished.\"  \nCopley Press, Inc. v. City of Springfield,  266 Ill. App. 3d 421, 426 ( 1994). \n\nThis office' s review of the responsive records confirmed that the Department\nredacted the names of witnesses who provided information to the police.   The names of the\nwitnesses who provided information to the Department fall within the scope of section\n7(1)(d)(iv), and the names of other witnesses and third parties mentioned in the reports fall\nwithin the scope of section 7(1)(c) of FOIA.  The Department also redacted dates of birth, which\nare exempt from disclosure under section 7(1)( c). 8 This office' s review of the redacted material\nfurther confirmed that much of the information the Department redacted from the witness\nstatements is exempt under section 7(1)(d)(iv) because it would unavoidably identify those\nwitnesses even after their names are redacted.   For instance,  the disclosure of descriptions of\nwitnesses'  familial connections to involved parties would expose their identities.   Although Ms. \nStack contends that the witnesses'  identities are not exempt because the records were produced in\ncourt in discovery and were part of a public trial where a person was convicted and then served a\nprison sentence,  the exemptions set forth in sections 7(1)(c) and 7(1)( d)(iv) of FOIA do not cease\nto protect the identities of witnesses in the context of police reports merely because discovery\noccurs,  a trial is held, or a case ends.   Henareh v. United States,  No. 1:17-cv-00630,  2018 U.S. \nDist. LEXIS 207234,  at * 8-9 (S.D.N.Y. Dec. 6, 2018) ( disclosure of recordings \" during criminal\ndiscovery does not warrant public disclosure pursuant to FOIA if the recordings otherwise fall\nwithin an applicable exemption.\").   The applicability of law enforcement exemptions for records\nthat would interfere with or obstruct criminal\nwhen the investigations and proceedings end,  but the Department\n\ninvestigations and legal proceedings 9 do expire\n\nis not relying on those\n\n8\" An individual' s birth date is highly personal by its very nature and the subject' s right to privacy\noutweighs any legitimate public interest in disclosing this information.\"   Ill. Att'y Gen. Pub.  Acc. Op. No 16-009, \nissued November 7, 2016,  at 12. \n\n95 ILCS 140/7(1)(d)(i), (1)(d)(vii) (West 2019 Supp.).  \n\n\fMs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 6\n\nexemptions in this matter.   Thus,  the age and status of the prosecution related to this\ninvestigation is immaterial here. \n\nAdditionally,  Ms. Stack argues that the witness identities are not exempt because\n\nrecords from the trial and appeals are already in the public domain.   A requester seeking\notherwise exempt records carries \" the burden of pointing to specific information in the public\ndomain that appears to duplicate that being withheld.\"   Afshar v. Department of State, 702 F.2d\n1125,  1130 ( D.C. Cir. 1983).  \" That is so because the task of proving the negative-- that\ninformation has not been revealed-- might require the government\npotentially limitless search.\"   Davis v. United States Department of Justice,  968 F.2d 1276,  1279\nD.C. Cir. 1992).   In the absence of supporting evidence such as trial transcripts,  the assertion\nthat recordings were played in a criminal trial fails to demonstrate that \" specific information\nidentical to that being withheld that has been placed in the permanent public record.\"   Black v. \nUnited States Department of Justice, 69 F. Supp.  3d 26, 30 (D.C. Cir. 2014).   \n\nto undertake an exhaustive, \n\nThis office has received no specific evidence showing what if any witness\n\nidentities were revealed in open court and preserved in a permanent public record.   Nothing in\nsections 7(1)( c) and 7(1)( d)(iv) expressly or impliedly requires a law enforcement agency to\nascertain whether otherwise exempt information in its possession has been disclosed in a judicial\nproceeding.   Accordingly,  there is no basis for this office to conclude that Ms. Stack is entitled to\nunredacted copies of the records at issue because they are in the public domain. \n\nNonetheless,  this office' s review found that the Department redacted references to\nthe arrestees from some of the witness statements.   The arrestees'  identities are not exempt under\nsection 7(1)( c) as noted above,  and the Department did not demonstrate that disclosing the\narrestees'  names in the witness statements would unavoidably identify the witnesses.   Under\nthese circumstances,  this office concludes that the Department\nnames. 10 If Ms. Stack is interested in obtaining a new copy of the record without the redaction\nof the arrestee names,  this office asks her to confirm that;  if she does,  this office asks the\nDepartment to provide Ms. Stack with a new copy of the records without redacting the arrestees' \nnames. \n\nimproperly redacted the arrestees' \n\n10Sections 7(1)(a) and 7(1)(d)(vi) do not apply to the arrestees'  names because they were not\n\njuveniles at the time of the incident,  rendering the JCA inapplicable,  and because the Department did not explain\nhow or why disclosing the arrestees'  names would endanger the life or physical safety of any person.  \n\n\fs. Celeste Stack\nMs. Rebecca Boland\nNovember 21, 2024\nPage 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (773)  590- 6840 or matthew. goodman@ilag. gov. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n62344 f 71b proper 71c proper improper 71div proper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Investigative records and photos of a 1992 murder case","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62344/","full_text":"November 21, 2024\n\nVia electronic mail\nMs. Celeste Stack\nAttorney\nHale & Monico\n[street address redacted for site publication -- see original PDF]\ncelestestewartstack@gmail. com\n\nVia electronic mail\nMs. Rebecca Boland\nFOIA Officer\nPeoria Police Department\n600 Southwest Adams Street\nPeoria, Illinois 61602\nrboland@peoriagov. org\n\nRE: FOIA Request for Review – 2020 PAC 62344\n\nDear Ms. Stack and Ms. Boland: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2023 Supp.)). For the reasons that follow, the\nPublic Access Bureau concludes that the Peoria Police Department (Department) did not\nimproperly redact information that would identify witnesses or third parties from the records\nresponsive to Ms. Celeste Stack's FOIA request, but improperly redacted references to the\narrestees. \n\nOn January 15, 2020, Ms. Stack submitted a FOIA request to the Department\n\nseeking copies of all records, including photographs and investigative reports, related to a\n\npursuant to sections 7(1)(b) and 7(1)(c) of FOIA. 1 On March 27, 2020, Ms. Stack submitted the\nabove- referenced Request for Review contesting the Department's partial denial of her FOIA\nrequest. \n\nOn April 7, 2020, this office forwarded a copy of Ms. Stack's Request for Review\n\nto the Department and asked it to furnish unredacted copies of the responsive records for this\noffice's confidential review, together with a detailed explanation of the factual and legal bases for\nthe asserted exemptions. On April 17, 2020, the Department\nStack with copies of the records with considerably fewer redactions and a written response\nstating that it had redacted certain information pursuant to sections 7(1)(a), 7(1)(b), 7(1)(c), \n7(1)(d)(iv), and 7(1)(d)(vi) of FOIA. 2 In conjunction with section 7(1)(a), the Department cited\nsection 1-7 of the Juvenile Court Act of 1987 (JCA). 3 On April 30, 2020, Ms. Stack confirmed\nreceipt of the Department's supplemental\n\nresponse and responded by stating: \n\ninstead elected to provide Ms. \n\nUnfortunately, the revised production is also impossible to\ndecipher as all the names of the witnesses, etc have been erased. \nAgain, these records were produced in court in discovery, were\npart of a public trial and the records from the trial and multiple\nappeals are all in the public domain. Peoria has added the claim\nthat some juveniles were interviewed but fails to designate which\nerased materials are actually from juveniles. In sum, Peoria's\nrevisions do nothing to improve the situation as the materials are\nstill impossible to decipher.[ 4] \n\nBefore proceeding, this office notes that section 7(1)(a) and the JCA are inapplicable because the\nrecords do not concern minors suspected of criminal offenses; rather, as explained below, a\nminor witness' identity falls within the scope of other exemptions the Department cited. \n\nOn May 1, 2020, this office received from the Department unredacted copies of\nthe records sent to Ms. Stack on April 17, 2020. Later, on March 18, 2021, when an Assistant\nAttorney General (AAG) in the Public Access Bureau followed up with Ms. Stack, she advised\nthat she was still seeking unredacted copies of the records because: \" The case file is 20 years\nold, no investigation is ongoing. In fact, someone was convicted and served an entire sentence. \n\nPeoria redacted factual details so that the documents are worthless as they cannot be followed or\nunderstood. This violates the purpose of FOIA.\" 5\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2022). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). \n\nIn its revised response to the request, the Department explained that it redacted\n\nthe names and private information of persons who provided information to the police and other\npersons mentioned in the reports pursuant to sections 7(1)(b) and 7(1)(d)(iv) of FOIA, and that it\nalso redacted information that would constitute a clearly unwarranted invasion of personal\nprivacy pursuant to section 7(1)(c). As discussed in further detail below, the Department\nprimarily redacted discrete information pertaining to witnesses and third parties, leaving in a\nlarge volume of intelligible information. Accordingly, it is not evident why Ms. Stack alleges\nthat the redacted records are indecipherable and worthless. \n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA 6 defines \" private information\" as: \n\nunique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\nidentifiers, personal financial\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\ninformation, passwords or other\n\nlicense plates, except as\n\nThis office's review confirmed that many of the redactions are of \"unique\nidentifiers\" that are expressly defined as \" private information,\" including social security\nnumbers, home or personal telephone numbers, and home addresses. Although Ms. Stack\nappears to argue that the asserted exemptions, which include section 7(1)(b), cannot apply\nbecause the homicide occurred decades ago and the police reports were part of the prosecution\n\nand appeals, there is no basis in FOIA from which this office could conclude that the protections\nof section 7(1)(b) expire under such circumstances. Therefore, the Department did not\nimproperly redact private information pursuant to section 7(1)(b). \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) also contains an exception providing that \"[ t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\" \n\nIn contrast to the identities of arrestees, which generally are not exempt from\n\nin an underlying incident but\n\ndisclosure under section 7(1)(c), 7 this office has consistently determined that the disclosure of\nthe identities of third parties who have no direct involvement\nwhose names appear incidentally in a police report constitutes a clearly unwarranted invasion of\npersonal privacy. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 26558, issued January 7, 2014, at\n3; see also Mays v. Drug Enforcement Administration, 234 F.3d 1324, 1327 (D.C. Cir. 2000) \nAbsent exceptional circumstances, the balance [ between the public interest in disclosure and\nthe right to privacy] categorically favors withholding the names and addresses of third parties as\" \nsuch information does not provide insight into the conduct or performance of a government\nagency); Ill. Att'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 10 (\" The\ncomplainants, as well as witnesses and third parties described incidentally in the complaints, \nhave legitimate privacy interests in the disclosure of their identities.\"). \n\nAdditionally, section 7(1)(d)(iv) of FOIA exempts from disclosure: \n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\n7 See 5 ILCS 140/ 2.15(a) (West 2020) (requiring public disclosure of information that identifies\n\neach arrestee within 72 hours after arrest); see also Ill. Att'y Gen. Pub. Acc. Op. No. 12- 006, issued March 16, 2012, \nat 7 (concluding that the disclosure of the identities of arrestees and basic facts about their arrests and the related\n\nunavoidably disclose the identity of a confidential\n\niv) \nsource, confidential\nconfidential source, or persons who file complaints with or\nprovide information to administrative, investigative, law\nenforcement, or penal agencies[.] (Emphasis added.) \n\ninformation furnished only by the\n\nThis provision allows police departments to protect the anonymity of both confidential\ninformants and other persons who provide them with information. Chicago Alliance for\nNeighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200-01 (2004) (names and\naddresses of beat meeting participants properly redacted because they provided information to\npolice department). Witness statements may be withheld in their entireties only if disclosure of\nthe contents \" would necessarily result in the disclosure of the identity of that source\" of\ninformation and, therefore, \" redaction of the [ records] cannot be meaningfully accomplished.\" \nCopley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421, 426 (1994). \n\nThis office's review of the responsive records confirmed that the Department\nredacted the names of witnesses who provided information to the police. The names of the\nwitnesses who provided information to the Department fall within the scope of section\n7(1)(d)(iv), and the names of other witnesses and third parties mentioned in the reports fall\nwithin the scope of section 7(1)(c) of FOIA. The Department also redacted dates of birth, which\nare exempt from disclosure under section 7(1)(c). 8 This office's review of the redacted material\nfurther confirmed that much of the information the Department redacted from the witness\nstatements is exempt under section 7(1)(d)(iv) because it would unavoidably identify those\nwitnesses even after their names are redacted. For instance, the disclosure of descriptions of\nwitnesses' familial connections to involved parties would expose their identities. Although Ms. \nStack contends that the witnesses' identities are not exempt because the records were produced in\ncourt in discovery and were part of a public trial where a person was convicted and then served a\nprison sentence, the exemptions set forth in sections 7(1)(c) and 7(1)(d)(iv) of FOIA do not cease\nto protect the identities of witnesses in the context of police reports merely because discovery\noccurs, a trial is held, or a case ends. Henareh v. United States, No. 1:17-cv-00630, 2018 U.S. \nDist. LEXIS 207234, at * 8-9 (S.D.N.Y. Dec. 6, 2018) (disclosure of recordings \" during criminal\ndiscovery does not warrant public disclosure pursuant to FOIA if the recordings otherwise fall\nwithin an applicable exemption.\"). The applicability of law enforcement exemptions for records\nthat would interfere with or obstruct criminal\nwhen the investigations and proceedings end, but the Department\n\ninvestigations and legal proceedings 9 do expire\n\nis not relying on those\n\n8\" An individual's birth date is highly personal by its very nature and the subject's right to privacy\noutweighs any legitimate public interest in disclosing this information.\" Ill. Att'y Gen. Pub. Acc. Op. No 16-009, \n\nexemptions in this matter. Thus, the age and status of the prosecution related to this\ninvestigation is immaterial here. \n\nAdditionally, Ms. Stack argues that the witness identities are not exempt because\n\nrecords from the trial and appeals are already in the public domain. A requester seeking\notherwise exempt records carries \" the burden of pointing to specific information in the public\ndomain that appears to duplicate that being withheld.\" Afshar v. Department of State, 702 F.2d\n1125, 1130 (D.C. Cir. 1983). \" That is so because the task of proving the negative-- that\ninformation has not been revealed-- might require the government\npotentially limitless search.\" Davis v. United States Department of Justice, 968 F.2d 1276, 1279\nD.C. Cir. 1992). In the absence of supporting evidence such as trial transcripts, the assertion\nthat recordings were played in a criminal trial fails to demonstrate that \" specific information\nidentical to that being withheld that has been placed in the permanent public record.\" Black v. \nUnited States Department of Justice, 69 F. Supp. 3d 26, 30 (D.C. Cir. 2014). \n\nto undertake an exhaustive, \n\nThis office has received no specific evidence showing what if any witness\n\nidentities were revealed in open court and preserved in a permanent public record. Nothing in\nsections 7(1)(c) and 7(1)(d)(iv) expressly or impliedly requires a law enforcement agency to\nascertain whether otherwise exempt information in its possession has been disclosed in a judicial\nproceeding. Accordingly, there is no basis for this office to conclude that Ms. Stack is entitled to\nunredacted copies of the records at issue because they are in the public domain. \n\nNonetheless, this office's review found that the Department redacted references to\nthe arrestees from some of the witness statements. The arrestees' identities are not exempt under\nsection 7(1)(c) as noted above, and the Department did not demonstrate that disclosing the\narrestees' names in the witness statements would unavoidably identify the witnesses. Under\nthese circumstances, this office concludes that the Department\nnames. 10 If Ms. Stack is interested in obtaining a new copy of the record without the redaction\nof the arrestee names, this office asks her to confirm that; if she does, this office asks the\nDepartment to provide Ms. Stack with a new copy of the records without redacting the arrestees' \nnames. \n\nimproperly redacted the arrestees' \n\n10 Sections 7(1)(a) and 7(1)(d)(vi) do not apply to the arrestees' names because they were not\n\njuveniles at the time of the incident, rendering the JCA inapplicable, and because the Department did not explain\nhow or why disclosing the arrestees' names would endanger the life or physical safety of any person. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590- 6840 or matthew. goodman@ilag. gov. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n62344 f 71b proper 71c proper improper 71div proper pd"}
{"id":956,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-09-14","case_number":null,"request_numbers":["62833"],"title":"Village of Orland Park improperly withheld work-from-home records under 7(1)(kk)","filename":"62833, issued September 14, 2021.pdf","rel_path":null,"word_count":2452,"summary":"The requester sought various records regarding Village of Orland Park employees' work-from-home status during the COVID-19 pandemic. The PAC determined that the Village complied with FOIA regarding the first four parts of the request but improperly withheld records responsive to the fifth part.","plain_summary":"A citizen requested information from the Village of Orland Park about which employees were allowed to work from home during the COVID-19 pandemic. The Attorney General's office found that the Village followed the law for most of the request but wrongly refused to provide the records for the fifth part of the request. The Village improperly withheld those specific records.","holding":"The Village of Orland Park improperly withheld records responsive to part five of the FOIA request.","legal_question":"Whether the Village of Orland Park properly withheld records under section 7(1)(kk) of FOIA, which exempts certain personal account information from disclosure.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(kk)"],"public_body":"Village of Orland Park","requesting_party":"Michael F. Henry","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned Village of Orland Park employee work-from-home policies and lists of employees approved for remote work during the COVID-19 pandemic.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_u/62833%2C%20issued%20September%2014%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","COVID-19","work from home","FOIA exemption","Village of Orland Park"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 14,  2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Mallory A. Milluzzi\n\nPartner/ Attorney\n\nKlein,  Thorpe and Jenkins,  Ltd\n\n20 North Wacker Drive,  Suite 1660\n\n[street address redacted for site publication -- see original PDF]\nmamilluzzi@ktjlaw.\n\ncom\n\nRE:   FOIA Request for Review –  2020 PAC 62833;  N007633- 040920\n\nDear\n\nand Ms.  Milluzzi: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5( f) (West 2020)).   For the reasons that follow,  the\n\nPublic Access Bureau concludes that the response by the Village of Orland Park ( Village)  to the\n\nfirst four parts of\n\nApril 9, 2020,  FOIA request did not violate FOIA,  but\n\nthe Village improperly withheld records responsive to part five. \n\nOn that date, \n\nsubmitted a FOIA request to the Village asking: \n\n1]  Please provide the criteria used to determine if an\n\nemployee of the Village of Orland Park was being allowed to work\n\nfrom home due to the Covidl9 pandemic. [ 2]  Please provide a list\n\nof each and every employee of the Village who was approved to\n\nwork from home and the reason they were approved to work from\n\nhome. [ 3]  Please provide a list of all the employes [ sic]  who were\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: (877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street, Chicago,  Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 2\n\nrequired to come to work at the Village offices and the reason they\n\nwere required to work from the Village Office. [ 4]  Please provide\n\nthe information on\n\nand how she can do her job as\n\nadministrative\n\nassistant\n\nto the Mayor and how she can answer calls\n\nto the Mayors [ sic] Office when she is working from home. [ 5] \n\nPlease provide the list of employees who have remote computer\n\naccess to the Villages [ sic] Systems and networks to perform their\n\nJobs remotely[.][\n\n1]  \n\nOn May 4, 2020,  the Village responded,  denying part five of\n\nrequest pursuant\n\nto\n\nsections 7(1)(u) and 7(1)(v) of FOIA (5 ILCS 140/7(1)(u), (1)(v) (West 2020)).   Additionally, \n\nthe Village informed\n\nthat it located no records responsive to parts two and three of his\n\nFOIA request.  The Village further asserted that parts one and four of the request did not fall\n\nwithin the scope of FOIA,  as they posed questions rather than reasonably describing any public\n\nrecords.  Later that afternoon, \n\nsubmitted the above-referenced Request for Review\n\ndisputing the Village' s response to his FOIA request. \n\nOn May 8, 2020,  this office sent a copy of the Request\n\nfor Review to the Village\n\nand asked it to provide unredacted copies of any and all records that were withheld for this\n\noffice's confidential review, together with a detailed explanation of the legal and factual bases for\n\nthe applicability of the section 7(1)( u) and 7(1)( v) of FOIA.   This office also asked the Village to\n\nprovide a detailed written explanation for its responses to parts one and four of\n\nFOIA request.   Specifically, \n\nthis office asked the Village to explain whether\n\nit possesses any\n\nrecords pertaining to the criteria used to determine if a Village employee could work from home\n\ndue to the COVID- 19 pandemic.   On May 19,  2020,  counsel\n\nfor the Village submitted the\n\nrequested materials and additionally asserted the applicability of section 7(1)(kk) of FOIA (5\n\nILCS 140/ 7(1)( kk) ( West 2020)).   The Village provided a complete version of its written answer\n\nfor this office's confidential review and a redacted version for forwarding to .  \n\nSee 5\n\nILCS 140/ 9.5(d) ( West 2020).   On May 20,  2020,  this office forwarded the redacted copy of the\n\nVillage's response to ; \n\nhe did not submit a written reply. \n\nDETERMINATION\n\nParts One through Four of the FOIA Request\n\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2020))  provides that \"[ a]ll records in\n\nthe custody or possession of a public body are presumed to be open to inspection or copying.\"  \n\n1FOIA Request submitted by\n\nto the Village of Orland Park FOIA Center\n\nApril 9, 2020). \n\n\fMs.  Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 3\n\nHowever, \"[ a]  request to inspect or copy must reasonably identify a public record[.]\"   Chicago\n\nTribune Co.  v. Department of Financial and Professional Regulation,  2014 IL App ( 4th) \n\n130427, ¶33, 8 N.E.3d 11, 19 (2014).  A FOIA request \" reasonably describes records if 'the\n\nagency is able to determine precisely what records are being requested.'\"   Kowalczyk v. \n\nDepartment of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement\n\nAdmin.,  678 F. 2d 315,  326 ( D. C.  Cir.  1982)).   Public bodies are not required to search beyond\n\nthe four corners of a FOIA request, nor are they required to divine the requester's intent.  Manna\n\nv. U.S.  Dep' t of Justice,  106 F.  Supp.  3d 16,  19 ( D.D.C.  2015).   Further,  a public body is not\n\nrequired to answer questions or generate new records in response to a FOIA request.  Kenyon v. \n\nGarrels,  184 Ill. App.  3d 28,  32 ( 4th Dist.  1989) \n\nIn its response to this office,  the Village argued that asking for the \" criteria\"  for\nworking from home \" is not a request for records\"  subject to FOIA.2 If the Village possessed a\n\ndocument\n\nlaying out the requirements or factors involved in deciding who was eligible to work\n\nfrom home, asking for the \" criteria\"  was sufficient to identify such a record.  The Village's\n\nattorney advised,  however, \nlaying out the criteria for staying or working from home.\" 3 The Village provided information\n\nconfirmed that it did not have a document\n\nthat \" the Village * * * \n\nsupporting its assertion on a confidential basis.   This office has not received information\n\nsuggesting that the Village did possess a record listing the criteria.   \n\nThe Village next argued that part four of the request\n\nimproperly \" asks the Village\n\nto provide general information about\n\nemployment and to explain * * *  how she\n\ndoes her job.\"\n\n4\n\nThis office agrees that part four of\n\nrequest did not reasonably\n\nidentify public records but instead sought an explanation, which the Village was not required to\n\nprovide under FOIA.   \n\nAs to parts two and three of the request,  the Village argued that asking \" the reason\n\nwhy\" employees were approved to work from home or required to come to work \" is clearly\n\nasking the Village to interpret or advise requesters as to the meaning or significance of the public\nrecords, which is not allowed or required under FOIA.\" 5 See 5 ILCS 140/3.3 (West 2020) ( FOIA\n\nChristina Lucente- McCullough,  Public Access Bureau,  Office of the Attorney General ( May 19,  2020),  at [ 2]. \n\n2Letter\n\nfrom Mallory A. Milluzzi,  Assistant Village Attorney,  Klein,  Thorpe,  and Jenkins,  Ltd.,  to\n\nChristina Lucente- McCullough,  Public Access Bureau,  Office of the Attorney General ( May 19,  2020),  at [ 2].  \n\n3Letter\n\nfrom Mallory A. Milluzzi,  Assistant Village Attorney,  Klein,  Thorpe,  and Jenkins,  Ltd.,  to\n\nChristina Lucente- McCullough,  Public Access Bureau,  Office of the Attorney General ( May 19,  2020),  at [ 2]. \n\n4Letter\n\nfrom Mallory A. Milluzzi,  Assistant Village Attorney,  Klein,  Thorpe,  and Jenkins,  Ltd.,  to\n\nChristina Lucente- McCullough,  Public Access Bureau,  Office of the Attorney General ( May 19,  2020),  at [ 2].  \n\n5Letter\n\nfrom Mallory A. Milluzzi,  Assistant Village Attorney,  Klein,  Thorpe,  and Jenkins,  Ltd.,  to\n\n\fMs.  Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 4\n\nis not intended to compel public bodies to interpret or advise requesters as to the meaning or\n\nsignificance of the public records.\").   Regardless, \n\nthe Village asserted,  it possessed no lists\n\nresponsive to those two parts of the request, nor did it have a record indicating the reasons why\n\neach employee was working remotely or not.   This office has not received information indicating\n\nthat the Village did possess lists responsive to parts two and three of\n\nrequest naming\n\neach employee and the rationales for their ability to work remotely.   Under the circumstances of\n\nthis matter, this office concludes that the Village's response to the first four parts of\n\nrequest did not violate FOIA. \n\nPart Five of FOIA Request\n\nUnder FOIA,  a public body \" has the burden of proving by clear and convincing\n\nevidence\"  that information it withholds is exempt from disclosure.  5 ILCS 140/1.2 (West 2020).  \n\nIn its confidential\n\nresponse to this office,  the Village argued that the record responsive to part\n\nfive of\n\nrequest is exempt under sections 7(1)(u), 7(1)(v), and 7(1)(kk) of FOIA\n\nbecause disclosing a list of employees who have remote access to the Village' s computer\n\nnetwork could result in a security breach.    \n\nSection 7(1)(u) of FOIA\n\nSection 7(1)( u) of FOIA exempts from disclosure \"[\n\ni]nformation that would\n\ndisclose or might lead to the disclosure of secret or confidential information, codes, algorithms, \n\nprograms,  or private keys intended to be used to create electronic or digital signatures under\n\nthe Electronic Commerce Security Act.\"  (Emphasis added.)  Section 5-105 of the Electronic\n\nCommerce Security Act ( 5 ILCS 175/ 5-105 ( West 2020))  defined an \" electronic signature\"  as \" a\nsignature in electronic form attached to or logically associated with an electronic record.\" 6 The\n\nsame section defines a \" digital signature\"  as: \n\nA] type of electronic signature created by transforming an\n\nelectronic record using a message digest function and encrypting\n\nthe resulting transformation with an asymmetric\n\ncryptosystem\n\nusing the signer's private key such that any person having the\n\ninitial untransformed\n\nelectronic record,  the encrypted\n\ntransformation,  and the signer's corresponding public key can\n\naccurately determine whether\n\nthe transformation was created using\n\nthe private key that corresponds to the signer's public key and\n\nwhether\n\nthe initial electronic record has been altered since the\n\nElectronic Transactions Act ( 815 ILCS 333/ 1 et seq. ( West 2020),  added by Public Act 102- 038,  effective June 25, \n\n6The Electronic Commerce Security Act has since been repealed and replaced by the Uniform\n\n2021). \n\n\fMs.  Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 5\n\ntransformation was made. A digital signature is a security\n\nprocedure. \n\nThe Village did not articulate how the language of the section 7(1)( u) exemption, \n\nwhich is narrow and highly technical in nature, could apply to the basic information at issue in\n\nthe responsive record.   Therefore, \n\nthe Village improperly withheld the employee list pursuant\n\nto\n\nsection 7(1)(u) of FOIA. \n\nSection 7(1)(v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments,  security measures,  and response\n\npolicies or plans that are designed to identify,  prevent,  or respond\n\nto potential attacks upon a community's population or systems, \n\nfacilities,  or installations, \n\nthe destruction or contamination of\n\nwhich would constitute a clear and present danger to the health or\n\nsafety of the community,  but only to the extent\n\nthat disclosure\n\ncould reasonably be expected to jeopardize the effectiveness of the\n\nmeasures or the safety of the personnel who implement them or the\n\npublic.  Information exempt under this item may include such\n\nthings as details pertaining to the mobilization or deployment of\n\npersonnel or equipment, \n\nto the operation of communication\n\nsystems or protocols, or to tactical operations.  \n\nBy its plain language, section 7(1)(v) applies to \"[ v]ulnerability assessments, \n\nsecurity measures,  and response policies or plans * * * \n\nthe destruction or contamination of which\n\nwould constitute a clear and present danger to the health or safety of the community[.]\"   The\n\nresponsive record is not a vulnerability\n\nassessment or response policy or plan,  and it does not\n\ndiscuss or reflect security measures designed to deal with potential attacks.  Thus, the document\n\nsimply is not among the types of homeland security records that fall within the plain language of\n\nthe section 7(1)(v) exemption. \n\nSection 7(1)(kk) of FOIA\n\nSection 7(1)(kk) of FOIA permits a public body to withhold \"[ t]he public body's\n\ncredit card numbers,  debit card numbers,  bank account numbers,  Federal Employer\n\nIdentification\n\nNumber, security code numbers, passwords, and similar account information, the disclosure of\n\nwhich could result\n\nin identity theft or impression or defrauding of a governmental entity or a\n\nperson.\"  ( Emphasis added.) \n\n\fMs.  Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 6\n\nIn construing statutes such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly.   See Southern Illinoisan v. Illinois Dep' t of Public\n\nHealth, 218 Ill. 2d 390, 415 (2006).  \"[ W]hen a statute lists several classes of persons or things\n\nbut provides that the list is not exhaustive, \n\nthe class of unarticulated persons or things will be\n\ninterpreted as those 'others such like' the named persons or things.\"   Board of Trustees of\n\nSouthern Illinois Univ.  v. Illinois Dep' t of Human Rights,  159 Ill. 2d 206,  211 ( 1994).   In other\n\nwords, the listed terms are examples of what the General Assembly intended the statute to cover.  \n\nSee Duffy v. Illinois Dep' t of Human Rights,  354 Ill. App.  3d 236,  239 ( 4th Dist.  2004). \n\nIn analyzing the language of section 7(1)(kk), this office has determined that the\n\nexemption concerns \"\n\ntypes of account\n\ninformation that could be exploited to gain unauthorized\n\naccess to accounts.\"   Ill. Att'y Gen. PAC Req. Rev. Ltr. 64908 66410, issued January 28, 2021, at\n\n2.   In that matter,  this office explained that such account access information \"\n\nis not akin to basic\n\nidentifying information,\"  such as the names and badge numbers of police officers.  Ill. Att'y Gen. \n\nPAC Req.  Rev.  Ltr.  64908,  at 2.   \n\nThis office' s review of the withheld information confirmed that it is not \" similar\n\naccount information\"  to credit card numbers,  bank account numbers, passwords,  and the like.  \n\nTherefore, \n\nthe Village improperly withheld the employee list pursuant\n\nto section 7(1)( kk)  of\n\nFOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Village provide\n\nwith a copy of the record responsive to part five of his\n\nrequest. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter shall serve to close this matter.   If you\n\nhave any questions, please contact me at clucentemccullough@atg. state.il.us or the Chicago\n\naddress listed on the first page of this letter.   \n\nVery truly yours, \n\nCHRISTINA M. LUCENTE-MCCULLOUGH\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n62833 f 3d response complete 71u improper 71v 71kk improper improper mun\n\n\fMr. Michael F. Henry\n\nMs. Mallory A. Milluzzi\n\nSeptember 14, 2021\n\nPage 7\n\ncc: \n\nVia electronic mail\n\nMs.  Alexandra Snodsmith\n\nAssistant Freedom of Information Officer\n\nVillage of Orland Park\n\n14700 South Ravinia Avenue\n\nOrland Park,  Illinois 60462\n\nclerk@orlandpark. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Employee work-from-home policies and remote-work approval lists","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-62833/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nSeptember 14, 2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Mallory A. Milluzzi\n\nPartner/ Attorney\n\nKlein, Thorpe and Jenkins, Ltd\n\n20 North Wacker Drive, Suite 1660\n\n[street address redacted for site publication -- see original PDF]\nmamilluzzi@ktjlaw.\n\ncom\n\nRE: FOIA Request for Review – 2020 PAC 62833; N007633- 040920\n\nDear\n\nand Ms. Milluzzi: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the response by the Village of Orland Park (Village) to the\n\nfirst four parts of\n\nApril 9, 2020, FOIA request did not violate FOIA, but\n\nthe Village improperly withheld records responsive to part five. \n\nOn that date, \n\nsubmitted a FOIA request to the Village asking: \n\n1] Please provide the criteria used to determine if an\n\nemployee of the Village of Orland Park was being allowed to work\n\nfrom home due to the Covidl9 pandemic. [ 2] Please provide a list\n\nof each and every employee of the Village who was approved to\n\nwork from home and the reason they were approved to work from\n\nhome. [ 3] Please provide a list of all the employes [ sic] who were\n\nrequired to come to work at the Village offices and the reason they\n\nwere required to work from the Village Office. [ 4] Please provide\n\nthe information on\n\nand how she can do her job as\n\nadministrative\n\nassistant\n\nto the Mayor and how she can answer calls\n\nto the Mayors [ sic] Office when she is working from home. [ 5] \n\nPlease provide the list of employees who have remote computer\n\naccess to the Villages [ sic] Systems and networks to perform their\n\nJobs remotely[.][\n\n1] \n\nOn May 4, 2020, the Village responded, denying part five of\n\nrequest pursuant\n\nto\n\nsections 7(1)(u) and 7(1)(v) of FOIA (5 ILCS 140/7(1)(u), (1)(v) (West 2020)). Additionally, \n\nthe Village informed\n\nthat it located no records responsive to parts two and three of his\n\nFOIA request. The Village further asserted that parts one and four of the request did not fall\n\nwithin the scope of FOIA, as they posed questions rather than reasonably describing any public\n\nrecords. Later that afternoon, \n\nsubmitted the above-referenced Request for Review\n\ndisputing the Village's response to his FOIA request. \n\nOn May 8, 2020, this office sent a copy of the Request\n\nfor Review to the Village\n\nand asked it to provide unredacted copies of any and all records that were withheld for this\n\noffice's confidential review, together with a detailed explanation of the legal and factual bases for\n\nthe applicability of the section 7(1)(u) and 7(1)(v) of FOIA. This office also asked the Village to\n\nprovide a detailed written explanation for its responses to parts one and four of\n\nFOIA request. Specifically, \n\nthis office asked the Village to explain whether\n\nit possesses any\n\nrecords pertaining to the criteria used to determine if a Village employee could work from home\n\ndue to the COVID- 19 pandemic. On May 19, 2020, counsel\n\nfor the Village submitted the\n\nrequested materials and additionally asserted the applicability of section 7(1)(kk) of FOIA (5\n\nILCS 140/ 7(1)(kk) (West 2020)). The Village provided a complete version of its written answer\n\nfor this office's confidential review and a redacted version for forwarding to. \n\nSee 5\n\nILCS 140/ 9.5(d) (West 2020). On May 20, 2020, this office forwarded the redacted copy of the\n\nVillage's response to; \n\nhe did not submit a written reply. \n\nDETERMINATION\n\nParts One through Four of the FOIA Request\n\nSection 1.2 of FOIA (5 ILCS 140/1.2 (West 2020)) provides that \"[ a]ll records in\n\nthe custody or possession of a public body are presumed to be open to inspection or copying.\" \n\nHowever, \"[ a] request to inspect or copy must reasonably identify a public record[.]\" Chicago\n\nTribune Co. v. Department of Financial and Professional Regulation, 2014 IL App (4th) \n\n130427, ¶33, 8 N.E.3d 11, 19 (2014). A FOIA request \" reasonably describes records if 'the\n\nagency is able to determine precisely what records are being requested.'\" Kowalczyk v. \n\nDepartment of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement\n\nAdmin., 678 F. 2d 315, 326 (D. C. Cir. 1982)). Public bodies are not required to search beyond\n\nthe four corners of a FOIA request, nor are they required to divine the requester's intent. Manna\n\nv. U.S. Dep' t of Justice, 106 F. Supp. 3d 16, 19 (D.D.C. 2015). Further, a public body is not\n\nrequired to answer questions or generate new records in response to a FOIA request. Kenyon v. \n\nGarrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989) \n\nIn its response to this office, the Village argued that asking for the \" criteria\" for\nworking from home \" is not a request for records\" subject to FOIA.2 If the Village possessed a\n\ndocument\n\nlaying out the requirements or factors involved in deciding who was eligible to work\n\nfrom home, asking for the \" criteria\" was sufficient to identify such a record. The Village's\n\nattorney advised, however, \nlaying out the criteria for staying or working from home.\" 3 The Village provided information\n\nconfirmed that it did not have a document\n\nthat \" the Village * * * \n\nsupporting its assertion on a confidential basis. This office has not received information\n\nsuggesting that the Village did possess a record listing the criteria. \n\nThe Village next argued that part four of the request\n\nimproperly \" asks the Village\n\nto provide general information about\n\nemployment and to explain * * * how she\n\ndoes her job.\"\n\n4\n\nThis office agrees that part four of\n\nrequest did not reasonably\n\nidentify public records but instead sought an explanation, which the Village was not required to\n\nprovide under FOIA. \n\nAs to parts two and three of the request, the Village argued that asking \" the reason\n\nwhy\" employees were approved to work from home or required to come to work \" is clearly\n\nasking the Village to interpret or advise requesters as to the meaning or significance of the public\nrecords, which is not allowed or required under FOIA.\" 5 See 5 ILCS 140/3.3 (West 2020) (FOIA\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General (May 19, 2020), at [ 2]. \n\n2 Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General (May 19, 2020), at [ 2]. \n\n3 Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General (May 19, 2020), at [ 2]. \n\n4 Letter\n\nfrom Mallory A. Milluzzi, Assistant Village Attorney, Klein, Thorpe, and Jenkins, Ltd., to\n\nChristina Lucente- McCullough, Public Access Bureau, Office of the Attorney General (May 19, 2020), at [ 2]. \n\nis not intended to compel public bodies to interpret or advise requesters as to the meaning or\n\nsignificance of the public records.\"). Regardless, \n\nthe Village asserted, it possessed no lists\n\nresponsive to those two parts of the request, nor did it have a record indicating the reasons why\n\neach employee was working remotely or not. This office has not received information indicating\n\nthat the Village did possess lists responsive to parts two and three of\n\nrequest naming\n\neach employee and the rationales for their ability to work remotely. Under the circumstances of\n\nthis matter, this office concludes that the Village's response to the first four parts of\n\nrequest did not violate FOIA. \n\nPart Five of FOIA Request\n\nUnder FOIA, a public body \" has the burden of proving by clear and convincing\n\nevidence\" that information it withholds is exempt from disclosure. 5 ILCS 140/1.2 (West 2020). \n\nIn its confidential\n\nresponse to this office, the Village argued that the record responsive to part\n\nfive of\n\nrequest is exempt under sections 7(1)(u), 7(1)(v), and 7(1)(kk) of FOIA\n\nbecause disclosing a list of employees who have remote access to the Village's computer\n\nnetwork could result in a security breach. \n\nSection 7(1)(u) of FOIA\n\nSection 7(1)(u) of FOIA exempts from disclosure \"[\n\ni]nformation that would\n\ndisclose or might lead to the disclosure of secret or confidential information, codes, algorithms, \n\nprograms, or private keys intended to be used to create electronic or digital signatures under\n\nthe Electronic Commerce Security Act.\" (Emphasis added.) Section 5-105 of the Electronic\n\nCommerce Security Act (5 ILCS 175/ 5-105 (West 2020)) defined an \" electronic signature\" as \" a\nsignature in electronic form attached to or logically associated with an electronic record.\" 6 The\n\nsame section defines a \" digital signature\" as: \n\nA] type of electronic signature created by transforming an\n\nelectronic record using a message digest function and encrypting\n\nthe resulting transformation with an asymmetric\n\ncryptosystem\n\nusing the signer's private key such that any person having the\n\ninitial untransformed\n\nelectronic record, the encrypted\n\ntransformation, and the signer's corresponding public key can\n\naccurately determine whether\n\nthe transformation was created using\n\nthe private key that corresponds to the signer's public key and\n\nwhether\n\nthe initial electronic record has been altered since the\n\nElectronic Transactions Act (815 ILCS 333/ 1 et seq. (West 2020), added by Public Act 102- 038, effective June 25, \n\ntransformation was made. A digital signature is a security\n\nprocedure. \n\nThe Village did not articulate how the language of the section 7(1)(u) exemption, \n\nwhich is narrow and highly technical in nature, could apply to the basic information at issue in\n\nthe responsive record. Therefore, \n\nthe Village improperly withheld the employee list pursuant\n\nto\n\nsection 7(1)(u) of FOIA. \n\nSection 7(1)(v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments, security measures, and response\n\npolicies or plans that are designed to identify, prevent, or respond\n\nto potential attacks upon a community's population or systems, \n\nfacilities, or installations, \n\nthe destruction or contamination of\n\nwhich would constitute a clear and present danger to the health or\n\nsafety of the community, but only to the extent\n\nthat disclosure\n\ncould reasonably be expected to jeopardize the effectiveness of the\n\nmeasures or the safety of the personnel who implement them or the\n\npublic. Information exempt under this item may include such\n\nthings as details pertaining to the mobilization or deployment of\n\npersonnel or equipment, \n\nto the operation of communication\n\nsystems or protocols, or to tactical operations. \n\nBy its plain language, section 7(1)(v) applies to \"[ v]ulnerability assessments, \n\nsecurity measures, and response policies or plans * * * \n\nthe destruction or contamination of which\n\nwould constitute a clear and present danger to the health or safety of the community[.]\" The\n\nresponsive record is not a vulnerability\n\nassessment or response policy or plan, and it does not\n\ndiscuss or reflect security measures designed to deal with potential attacks. Thus, the document\n\nsimply is not among the types of homeland security records that fall within the plain language of\n\nthe section 7(1)(v) exemption. \n\nSection 7(1)(kk) of FOIA\n\nSection 7(1)(kk) of FOIA permits a public body to withhold \"[ t]he public body's\n\ncredit card numbers, debit card numbers, bank account numbers, Federal Employer\n\nIdentification\n\nNumber, security code numbers, passwords, and similar account information, the disclosure of\n\nIn construing statutes such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Dep' t of Public\n\nHealth, 218 Ill. 2d 390, 415 (2006). \"[ W]hen a statute lists several classes of persons or things\n\nbut provides that the list is not exhaustive, \n\nthe class of unarticulated persons or things will be\n\ninterpreted as those 'others such like' the named persons or things.\" Board of Trustees of\n\nSouthern Illinois Univ. v. Illinois Dep' t of Human Rights, 159 Ill. 2d 206, 211 (1994). In other\n\nwords, the listed terms are examples of what the General Assembly intended the statute to cover. \n\nSee Duffy v. Illinois Dep' t of Human Rights, 354 Ill. App. 3d 236, 239 (4th Dist. 2004). \n\nIn analyzing the language of section 7(1)(kk), this office has determined that the\n\nexemption concerns \"\n\ntypes of account\n\ninformation that could be exploited to gain unauthorized\n\naccess to accounts.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 64908 66410, issued January 28, 2021, at\n\n2. In that matter, this office explained that such account access information \"\n\nis not akin to basic\n\nidentifying information,\" such as the names and badge numbers of police officers. Ill. Att'y Gen. \n\nPAC Req. Rev. Ltr. 64908, at 2. \n\nThis office's review of the withheld information confirmed that it is not \" similar\n\naccount information\" to credit card numbers, bank account numbers, passwords, and the like. \n\nTherefore, \n\nthe Village improperly withheld the employee list pursuant\n\nto section 7(1)(kk) of\n\nFOIA. \n\nIn accordance with the conclusions expressed in this letter, this office requests\n\nthat the Village provide\n\nwith a copy of the record responsive to part five of his\n\nrequest. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at clucentemccullough@atg. state.il.us or the Chicago\n\naddress listed on the first page of this letter. \n\nVery truly yours, \n\ncc: \n\nVia electronic mail\n\nMs. Alexandra Snodsmith\n\nAssistant Freedom of Information Officer\n\nVillage of Orland Park\n\n14700 South Ravinia Avenue\n\nOrland Park, Illinois 60462\n\nclerk@orlandpark. org"}
{"id":957,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2025-12-02","case_number":null,"request_numbers":["64491"],"title":"Homewood Police Department properly withheld lineup recordings but not photo array under FOIA","filename":"64491, issued December 2, 2025.pdf","rel_path":null,"word_count":1829,"summary":"The requester sought audio and video recordings of a photo array and related police reports, which the Homewood Police Department denied under section 7(1)(d)(v). The PAC determined the denial was improper and directed the Department to provide the records, subject to appropriate redactions.","plain_summary":"A citizen requested audio and video recordings of a police photo lineup, as well as the photo array and lineup report, from the Homewood Police Department. The department denied the audio and video recordings under a state law that keeps lineup recordings confidential, and denied the photo array and report under a FOIA exemption for investigative techniques. The Illinois Attorney General's office reviewed the request and found that the audio and video recordings were properly withheld, but the photo array and lineup report were not exempt and must be provided to the requester, subject to any lawful redactions.","holding":"The Homewood Police Department properly withheld the requested audio and video recordings under section 7(1)(a) of FOIA, but improperly withheld the photo array and lineup report under section 7(1)(d)(v).","legal_question":"Whether the Homewood Police Department properly invoked section 7(1)(d)(v) of FOIA to withhold audio and video recordings of a photo array.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(d)(v)"],"public_body":"Homewood Police Department","requesting_party":"Christina Lucente-McCullough (on behalf of requester)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The request concerned audio and video recordings of a police-administered photo array and associated lineup reports.","ocr_status":"ok","ocr_quality":97.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/64491%2C%20issued%20December%202%2C%202025.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","photo array","video recording","FOIA denial","redaction"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"December 2, 2025\n\nVia electronic mail\n\nVia electronic mail\nDeputy Chief McGrath\nHomewood Police Department\n[street address redacted for site publication -- see original PDF]\ndmcgrath@homewoodil. gov\n\nRE:   FOIA Request for Review –  2020 PAC 64491\n\nDear\n\nand Mr. McGrath: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). \n\nOn August 18, 2020, \n\nsubmitted a FOIA request to the\n\nHomewood Police Department ( Police Department)  seeking copies of: \n\n1.  Any audio and/ or video recording of viewing of [ the]  photo\narray administered by independent administrator, Detective\nNeitzel,  on [ April 17, 2018],  at approximately 1533 hours[,] \n2.  The recording from the E-Lineup computer, the photo array, \nincluding [ a named individual]  and the five fillers[,]  and\n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 2\n\n3.  The demographics and line- up report that was placed into\nevidence, as well as any other corresponding reports.[1] \n\nOn August 25, 2020, the Police Department provided\nH18- 04521,  but redacted certain information pursuant to sections 7(1)( b) and 7(1)( c) of FOIA. 2\nrequest for the remaining video and audio\nHowever, the Police Department denied\nrecords pursuant to section 7(1)( d)( v) of FOIA. 3 On August 26, 2020,  this office received\n\nwith a copy of police report\n\nRequest for Review contesting the Police Department's denial of the requested audio\n\nand/ or video recordings.  \n\nOn September 9, 2020,  this office sent a copy of this Request for Review to the\nPolice Department and asked it to provide this office with unredacted copies of any responsive\nrecords for this office' s confidential review,  together with a detailed description of the\napplicability of section 7(1)(d)(v).  On September 29, 2020, this office received the Police\nDepartment' s written response and the requested materials.   In its written response,  the Police\nDepartment claimed that responsive records involved a law enforcement lineup, which are\nprohibited from being disclosed pursuant\nProcedure of 1963 (Criminal Code).4 On October 1, 2020, this office forwarded a copy of the\nPolice Department' s response to\n\nto section 107A- 2(k) of the Code of Criminal\n\nhe replied on October 2, 2020.  \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/1.2 (West 2024); see also Southern Illinoisan v. \nIllinois Dept.  of Public Health,  218 Ill. 2d 390,  415 ( 2006).   A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1.2 (West 2024). \n\nSection 7(1)( a) of FOIA and the Code of Criminal Procedure\n\nSection 7(1)( a)  of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\n\n2020). \n\n1Public Records Request submitted by\n\nto Village of Homewood (August 18, \n\n2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n25 ILCS 140/7(1)(b), (1)(c) (West 2018), as amended by Public Acts 101-434, effective January 1, \n\n2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n35 ILCS 140/7(1)(d)(v) (West 2018), as amended by Public Acts 101-434, effective January 1, \n\n4725 ILCS 5/107A-2(k) (West 2020). \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 3\n\nor State law.\" 5 In connection with section 7(1)( a),  the Police Department quoted the section\n107A-2(k) of the Criminal Code, which provides: \n\nAny electronic recording made during a lineup that is\n\ncompiled by any law enforcement agency as required by this\nSection for the purposes of fulfilling the requirements of this\nSection shall be confidential and exempt from public inspection\nand copying, as provided under Section 7 of the Freedom of\nInformation Act, and the recording shall not be transmitted to any\nperson except as necessary to comply with this Section. (Emphasis\nadded). \n\nSection 107A- 2(a)  of the Criminal Code requires law enforcement agencies to use one of four\nspecified methods when conducting a line-up.6 In pertinent part, these methods include the use\nof \" independent administrator\"  or an \" automated computer program or other device that can\nautomatically display a photo lineup to an eyewitness in a manner that prevents the lineup\nadministrator\nafter the lineup is completed.\" ( Emphasis added)  \n\nfrom seeing which photograph or photographs the eyewitness is viewing until\n\nSection 107A-0.1 of the Criminal Code7 defines an independent administrator as\na line up administrator who is not participating in the investigation of the criminal offense and\nis unaware of which person in the lineup is the suspected perpetrator.\"  Further, section 107A-0.1\nsimply defines a lineup administrator as \" the person who conducts a lineup.\" \n\nThe Police Department withheld the photo arrays and the recordings of\n\nreviewing electronic line-up software on a Police Department computer.  \ndisputed the Police Department' s assertion that section 107A- 2(k) of the Criminal Code\nprohibited disclosure of those records.  \nclassified as an independent administrator because \" he was an actively investigating detective\nthat interviewed the offender[.]\" 8\n\nclaimed that Detective Neitzel cannot be\n\nThe plain language of section 107A-2(k) of the Criminal Code prohibits\ndisclosure of any electronic recording made during a lineup that is compiled by any law\n\n101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n55 ILCS 140/7(1)(a) ( West 2018), as amended by Public Acts 101-434, effective January 1, 2020; \n\n6725 ILCS 5/107A-2(a) ( West 2020). \n\n7725 ILCS 5/107A-0.1 (West 2020). \n\nPublic Access Bureau ( October 2, 2020). \n\n8E- mail from\n\nto Christina Lucente- McCullough,  Assistant Attorney General, \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 4\n\nenforcement agency for the purpose of complying with the requirements of section 107A- 2.  An\nindependent administrator is not required to be present when an individual uses an automated\ncomputer program,  and the prohibition against disclosure of any recordings made during a lineup\napplies regardless of whether an independent administrator oversees the lineup.  You also\nasserted that you are entitled to the recording because it will demonstrate that the Police\nDepartment did not comply with the requirements of section 107A-2 of the Criminal Code.  \nHowever,  the consequences for alleged noncompliance do not include waiving the ability to\nwithhold a recording within the scope of section 107A-2(k).  See 725 ILCS 5/107A-2(j) (West\nto disclose the\n2020).   Nor do you fall under the exception that permits the Police Department\nrecording because it is \"necessary to comply with this Section.\"  725 ILCS 5/107A-2(k) (West\n2020).   Therefore,  the Police Department demonstrated by clear and convincing evidence that\nsection 107A-2(k) the Criminal Code specifically prohibits it from disclosing the requested\nrecordings. \n\nOn the other hand,  this office determines that the requested photo array and line-\n\nup report do not fall within the scope of section 107A-2(k) of the Criminal Code.  The plain\nlanguage of that provision prohibits disclosure of any electronic recordings made during a lineup.  \nDespite the fact that the photo array was used during the line-up in question, it is not an\nelectronic recording of the lineup and neither is the corresponding report.   The narrowly tailored\ndisclosure prohibition in section 107A-2(k) is further supported by corresponding language in\nsection 107A- 2(i),9 which distinguishes three types of records prepared in connection with a\nlineup: \n\nThe photographs, recordings, and the official report of the lineup\nrequired by this Section shall be disclosed to counsel for the\naccused as provided by the Illinois Supreme Court Rules regarding\ndiscovery.  All photographs of suspected perpetrators shown to an\neyewitness during a lineup shall be disclosed to counsel for the\naccused as provided by the Illinois Supreme Court Rules regarding\ndiscovery. (Emphasis added). \n\nBecause the plain language of section 107A-2(k) of the Criminal Code only applies to electronic\nrecordings,  the Police Department has not sustained its burden of demonstrating by clear and\nconvincing evidence that photo arrays and lineup report are exempt from disclosure under\nsection 7(1)( a)  of FOIA. \n\nSection 7(1)( d)(v) of FOIA\n\nSection 7(1)( d)( v) of FOIA exempts from disclosure: \n\n9725 ILCS 5/107A-2(i) (West 2020). \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 5\n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nv) disclose unique or specialized investigative\n\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\nto detection,  observation or investigation of incidents of\ncrime or misconduct, and disclosure would result in\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.]   \n\nIn its response, the Police Department asserted that it properly withheld the\n\nto section 7(1)( d)( v) to\nrequested records,  including the photo arrays and line- up report,  pursuant\nprotect the disclosure of \"special investigative techniques.\" 10 Bare assertions without a detailed\nrationale do not satisfy a public body' s burden of explaining how exemptions are applicable.   See\nRockford Police Benevolent &  Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 151 (2010) \nciting Illinois Education Ass' n v. Illinois State Board of Education,  204 Ill. 2d 456,  464 ( 2003)).  \nThe public body satisfies its burden when it provides a detailed justification for the claimed\nexemption which addresses the specific documents requested and allows for adequate adversarial\ntesting.\"  Turner v. Joliet Police Department, 2019 IL App (3d) 170819, ¶ 10. \n\nThe Police Department's sparse explanation for the section 7(1)(d)(v) exemption\nis generalized and conclusory.   The Police Department did not set forth facts suggesting that any\nunique or specialized techniques are depicted in the withheld records.  The use of photographs\nand lineups during a law enforcement\ninvestigation is a common and generally- known technique.  \nFurther, the Police Department did not explain how or why disclosure of the photographs and the\nlineup report would cause it to endure demonstrable harm.     Accordingly,  the Police Department\nfailed to prove by clear and convincing evidence that the withheld photo array and lineup report\nare exempt from disclosure under section 7(1)( d)( v). \n\nAccordingly,  this office requests that the Police Department provide\nwith copies of the photo array and line-up report, subject to the redaction of any discrete portions\n\n10Letter from Deputy Chief McGrath, Homewood Police Department, to Christina Lucente-\n\nMcCullough, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (September 17, \n2020). \n\n\fDeputy Chief McGrath\nDecember 2, 2025\nPage 6\n\nthat fall within the scope of exemptions listed in section 7 of FOIA. 11 If the Police Department\nwith a notice of partial denial\ndoes elect to redact any information, it shall provide\nthat meets the requirements of section 9 of FOIA. 12\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n64491 f 71a proper improper 71dv improper pd\n\n115 ILCS 140/7 (West 2024). \n\n125 ILCS 140/9 (West 2024). \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Audio and video recordings of a police photo array","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-64491/","full_text":"December 2, 2025\n\nVia electronic mail\n\nVia electronic mail\nDeputy Chief McGrath\nHomewood Police Department\n[street address redacted for site publication -- see original PDF]\ndmcgrath@homewoodil. gov\n\nRE: FOIA Request for Review – 2020 PAC 64491\n\nDear\n\nand Mr. McGrath: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2024)). \n\nOn August 18, 2020, \n\nsubmitted a FOIA request to the\n\nHomewood Police Department (Police Department) seeking copies of: \n\n3. The demographics and line- up report that was placed into\nevidence, as well as any other corresponding reports.[1] \n\nOn August 25, 2020, the Police Department provided\nH18- 04521, but redacted certain information pursuant to sections 7(1)(b) and 7(1)(c) of FOIA. 2\nrequest for the remaining video and audio\nHowever, the Police Department denied\nrecords pursuant to section 7(1)(d)(v) of FOIA. 3 On August 26, 2020, this office received\n\nwith a copy of police report\n\nRequest for Review contesting the Police Department's denial of the requested audio\n\nand/ or video recordings. \n\nOn September 9, 2020, this office sent a copy of this Request for Review to the\nPolice Department and asked it to provide this office with unredacted copies of any responsive\nrecords for this office's confidential review, together with a detailed description of the\napplicability of section 7(1)(d)(v). On September 29, 2020, this office received the Police\nDepartment's written response and the requested materials. In its written response, the Police\nDepartment claimed that responsive records involved a law enforcement lineup, which are\nprohibited from being disclosed pursuant\nProcedure of 1963 (Criminal Code).4 On October 1, 2020, this office forwarded a copy of the\nPolice Department's response to\n\nto section 107A- 2(k) of the Code of Criminal\n\nhe replied on October 2, 2020. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2024); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2024). \n\nSection 7(1)(a) of FOIA and the Code of Criminal Procedure\n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\n\n2020). \n\n1 Public Records Request submitted by\n\nto Village of Homewood (August 18, \n\n2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n25 ILCS 140/7(1)(b), (1)(c) (West 2018), as amended by Public Acts 101-434, effective January 1, \n\n2020; 101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n35 ILCS 140/7(1)(d)(v) (West 2018), as amended by Public Acts 101-434, effective January 1, \n\nor State law.\" 5 In connection with section 7(1)(a), the Police Department quoted the section\n107A-2(k) of the Criminal Code, which provides: \n\nAny electronic recording made during a lineup that is\n\ncompiled by any law enforcement agency as required by this\nSection for the purposes of fulfilling the requirements of this\nSection shall be confidential and exempt from public inspection\nand copying, as provided under Section 7 of the Freedom of\nInformation Act, and the recording shall not be transmitted to any\nperson except as necessary to comply with this Section. (Emphasis\nadded). \n\nSection 107A- 2(a) of the Criminal Code requires law enforcement agencies to use one of four\nspecified methods when conducting a line-up.6 In pertinent part, these methods include the use\nof \" independent administrator\" or an \" automated computer program or other device that can\nautomatically display a photo lineup to an eyewitness in a manner that prevents the lineup\nadministrator\nafter the lineup is completed.\" (Emphasis added) \n\nfrom seeing which photograph or photographs the eyewitness is viewing until\n\nSection 107A-0.1 of the Criminal Code7 defines an independent administrator as\na line up administrator who is not participating in the investigation of the criminal offense and\nis unaware of which person in the lineup is the suspected perpetrator.\" Further, section 107A-0.1\nsimply defines a lineup administrator as \" the person who conducts a lineup.\" \n\nThe Police Department withheld the photo arrays and the recordings of\n\nreviewing electronic line-up software on a Police Department computer. \ndisputed the Police Department's assertion that section 107A- 2(k) of the Criminal Code\nprohibited disclosure of those records. \nclassified as an independent administrator because \" he was an actively investigating detective\nthat interviewed the offender[.]\" 8\n\nclaimed that Detective Neitzel cannot be\n\nThe plain language of section 107A-2(k) of the Criminal Code prohibits\ndisclosure of any electronic recording made during a lineup that is compiled by any law\n\n101-452, effective January 1, 2020; 101-455, effective August 23, 2019. \n\n55 ILCS 140/7(1)(a) (West 2018), as amended by Public Acts 101-434, effective January 1, 2020; \n\nenforcement agency for the purpose of complying with the requirements of section 107A- 2. An\nindependent administrator is not required to be present when an individual uses an automated\ncomputer program, and the prohibition against disclosure of any recordings made during a lineup\napplies regardless of whether an independent administrator oversees the lineup. You also\nasserted that you are entitled to the recording because it will demonstrate that the Police\nDepartment did not comply with the requirements of section 107A-2 of the Criminal Code. \nHowever, the consequences for alleged noncompliance do not include waiving the ability to\nwithhold a recording within the scope of section 107A-2(k). See 725 ILCS 5/107A-2(j) (West\nto disclose the\n2020). Nor do you fall under the exception that permits the Police Department\nrecording because it is \"necessary to comply with this Section.\" 725 ILCS 5/107A-2(k) (West\n2020). Therefore, the Police Department demonstrated by clear and convincing evidence that\nsection 107A-2(k) the Criminal Code specifically prohibits it from disclosing the requested\nrecordings. \n\nOn the other hand, this office determines that the requested photo array and line-\n\nup report do not fall within the scope of section 107A-2(k) of the Criminal Code. The plain\nlanguage of that provision prohibits disclosure of any electronic recordings made during a lineup. \nDespite the fact that the photo array was used during the line-up in question, it is not an\nelectronic recording of the lineup and neither is the corresponding report. The narrowly tailored\ndisclosure prohibition in section 107A-2(k) is further supported by corresponding language in\nsection 107A- 2(i),9 which distinguishes three types of records prepared in connection with a\nlineup: \n\nThe photographs, recordings, and the official report of the lineup\nrequired by this Section shall be disclosed to counsel for the\naccused as provided by the Illinois Supreme Court Rules regarding\ndiscovery. All photographs of suspected perpetrators shown to an\neyewitness during a lineup shall be disclosed to counsel for the\naccused as provided by the Illinois Supreme Court Rules regarding\ndiscovery. (Emphasis added). \n\nBecause the plain language of section 107A-2(k) of the Criminal Code only applies to electronic\nrecordings, the Police Department has not sustained its burden of demonstrating by clear and\n\nRecords in the possession of any public body created in the\n\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nv) disclose unique or specialized investigative\n\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\nto detection, observation or investigation of incidents of\ncrime or misconduct, and disclosure would result in\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.] \n\nIn its response, the Police Department asserted that it properly withheld the\n\nto section 7(1)(d)(v) to\nrequested records, including the photo arrays and line- up report, pursuant\nprotect the disclosure of \"special investigative techniques.\" 10 Bare assertions without a detailed\nrationale do not satisfy a public body's burden of explaining how exemptions are applicable. See\nRockford Police Benevolent & Protective Ass'n v. Morrissey, 398 Ill. App. 3d 145, 151 (2010) \nciting Illinois Education Ass' n v. Illinois State Board of Education, 204 Ill. 2d 456, 464 (2003)). \nThe public body satisfies its burden when it provides a detailed justification for the claimed\nexemption which addresses the specific documents requested and allows for adequate adversarial\ntesting.\" Turner v. Joliet Police Department, 2019 IL App (3d) 170819, ¶ 10. \n\nThe Police Department's sparse explanation for the section 7(1)(d)(v) exemption\nis generalized and conclusory. The Police Department did not set forth facts suggesting that any\nunique or specialized techniques are depicted in the withheld records. The use of photographs\nand lineups during a law enforcement\ninvestigation is a common and generally- known technique. \nFurther, the Police Department did not explain how or why disclosure of the photographs and the\nlineup report would cause it to endure demonstrable harm. Accordingly, the Police Department\nfailed to prove by clear and convincing evidence that the withheld photo array and lineup report\nare exempt from disclosure under section 7(1)(d)(v). \n\nAccordingly, this office requests that the Police Department provide\nwith copies of the photo array and line-up report, subject to the redaction of any discrete portions\n\n10 Letter from Deputy Chief McGrath, Homewood Police Department, to Christina Lucente-\n\nMcCullough, Assistant Attorney General, Office of the Attorney General, Public Access Bureau (September 17, \n\nthat fall within the scope of exemptions listed in section 7 of FOIA. 11 If the Police Department\nwith a notice of partial denial\ndoes elect to redact any information, it shall provide\nthat meets the requirements of section 9 of FOIA. 12\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n64491 f 71a proper improper 71dv improper pd\n\n115 ILCS 140/7 (West 2024). \n\n125 ILCS 140/9 (West 2024)."}
{"id":958,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-01-13","case_number":null,"request_numbers":["64820"],"title":"Chicago Public Schools properly withheld records under Rule 766 and 7(1)(a)","filename":"64820, issued January 13, 2023.pdf","rel_path":null,"word_count":1313,"summary":"The requester sought records regarding complaints, lawsuits, and investigative files concerning the Chicago Public Schools' General Counsel, which the district denied citing Illinois Supreme Court Rule 766. The PAC determined that the district's reliance on the rule to withhold the records was proper under FOIA.","plain_summary":"A requester asked Chicago Public Schools for legal records and complaints involving their General Counsel. The school district refused to release the documents, arguing that a specific Illinois Supreme Court rule requires these types of records to remain confidential. The Attorney General's office agreed with the district, concluding that the records were properly withheld.","holding":"Chicago Public Schools did not violate FOIA by withholding records protected from disclosure by Illinois Supreme Court Rule 766.","legal_question":"Whether records protected by Illinois Supreme Court Rule 766 are exempt from disclosure under FOIA section 7(1)(a) as information specifically prohibited from disclosure by federal or state law.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Chicago Public Schools","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought complaints, lawsuits, and investigative files concerning the General Counsel of the Chicago Public Schools.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/Waiver/64820%2C%20issued%20January%2013%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","legal records","confidentiality","Supreme Court Rule 766"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJanuary 13, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Andrew Mason\nFreedom of Information Act Officer\nChicago Public Schools\n42 West Madison,  3rd Floor\nChicago, Illinois 60602\namason19@cps. edu\n\nRE:   FOIA Request for Review –  2020 PAC 64820\n\nDear\n\nand Mr. Mason: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  For the reasons stated below, the\nPublic Access Bureau concludes that the response by the Chicago Public Schools ( CPS)  to Mr. \n\nMay 8, 2020, FOIA request did not violate the requirements of FOIA. \n\nOn May 8, 2020, \n\nsubmitted a three-part FOIA request seeking in part\n\none:  \" Complaints and lawsuits against and investigative files of Joseph Moriarty General\nCounsel) along with any letters to the ARDC on his behalf and any legal bills to represent him to\nthe ARDC or in any other complaint( s)  or lawsuit( s).\"   On September 11,  2020,  CPS denied part\none of\nFOIA request pursuant to section 7(1)(a) of FOIA (5ILCS 140/7(1)(a) \nWest 2020)),  citing Illinois Supreme Court Rule 766 ( Rule 766) ( Ill. S. Ct. R. 766 ( effective\nJune 14, 2006)).  On September 16, 2020, \ncontesting the denial of part one of his FOIA request. \n\nsubmitted a Request for Review\n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Andrew Mason\nJanuary 13,  2023\nPage 2\n\nOn October 13, 2020,  this office sent a copy of the Request for Review to CPS\n\nand asked it to provide copies of any withheld records responsive to part one of\nFOIA request for this office' s confidential review,  together with a detailed explanation of the\nfactual and legal bases for withholding the requested records.  On December 4, 2020, CPS\nprovided this office its response.   On December 10, 2020,  this office forwarded the written\nresponse to\n\nOn December 16, 2020, \n\nsubmitted a reply.   \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/1.2 (West 2020).  Exemptions to disclosure are to be narrowly construed.  Lieber v. Board of\nTrustees of Southern Illinois Univ.,  176 Ill. 2d 401,  408 ( 1997). \n\nSection 7(1)( a)  of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\"   In its response to the Request for Review,  CPS asserted that any responsive\nrequests are exempt from disclosure pursuant to section 7(1)(a) of FOIA Rule 766 as the law\nprohibiting disclosure.   Rule 766 pertains to the confidentiality and privacy of proceedings\nbefore the Attorney Registration and Disciplinary Commission (ARDC) and states, in part: \n\na) Public Proceedings.  Proceedings under Rules 751 through 780\nshall be public with the exception of the following matters,  which\nshall be private and confidential: \n\ninvestigations conducted by the Administrator [of the ARDC] * * *. \n\nIllinois Supreme Court rules \"have the force of law, and the presumption must\n\nbe that they will be obeyed and enforced as written.\"   Bright v. Dicke,  166 Ill. 2d 204,  210\n1995).  The Illinois Supreme Court has explained:  \" When interpreting supreme court rules, our\ncourt is guided by the same principles applicable to the construction of statutes.  [ Citations.]  \nWith rules, as with statutes, our goal is to ascertain and give effect to the drafters' intention.  \nCitation.]\"   People v. Marker,  233 Ill. 2d 158,  164– 65 ( 2009). \n\nSection ( a)  of Rule 766 expressly provides that investigations conducted by the\nAdministrator of the ARDC (Administrator) are \" private and confidential[.]\"   As explained by\nthe Court in In re Mitan,  119 Ill. 2d 229,  256 ( 1987): \n\nThe purpose underlying the general rule of privacy and\nconfidentiality is to protect an attorney's reputation for honesty and\n\n\fMr. Andrew Mason\nJanuary 13,  2023\nPage 3\n\nintegrity from the irreparable harm that might result if a publicly\nannounced disciplinary investigation or charge later proved to be\nwithout substance. \n\nRule 766 does not specify who is bound by this confidentiality requirement.   Its\npurpose as explained by the Court in Mitan, however, can only be served if the confidentiality\napplies broadly.   Rule 766 does not contain an exception for investigations of attorneys who are\npublic employees or officials.  If it did, FOIA could be used to circumvent the confidentiality\nrequirements of Rule 766. 1 Accordingly,  this office has previously determined that records\nrelating to a matter that is private and confidential pursuant to Rule 766 are exempt pursuant to\nsection 7(1)( a)  of FOIA.   See Ill. Att'y Gen.  PAC Rev.  Ltr. 67547,  issued December 6, 2021,  at\n3-4. \n\nThe Public Access Bureau has reviewed the materials submitted by\n\ntreatment by selectively disclosing names and addresses of\n\nas well as CPS.  A review of those materials establishes that CPS properly withheld any\nresponsive records because they relate to a matter that is private and confidential pursuant to\nargued that because CPS previously provided similar types of documents\nRule 766.  \nin response to prior FOIA requests for records concerning other CPS employees,  he is entitled to\nreceive these records as well.  Yet there is no indication that CPS waived the ability to deny the\nrecords at issue here by disclosing the same records concerning the same individual\nparty.  See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 413\n1997) ( providing preferential\ncolleges students to certain requesters while withholding the same information sought by another\nrequester waived the ability to deny the information under FOIA).   Further, \"[ t]he waiver rule\nmust not be mechanically applied whenever there is disclosure of information but, rather, \nrequires consideration of the circumstances related to the disclosure,  including the purpose and\nextent of the disclosure as well as the confidentiality surrounding the disclosure.\"  Chicago\nAlliance for Neighborhood Safety v. City of Chicago,  348 Ill. App.  3d 188,  202 ( 1st Dist.  2004).  \nCPS explained that when it learned about Rule 766 it began to apply the 7(1)(a) exemption.  \nRequiring disclosure of the records at issue because CPS previously was unaware of Rule 766\nwould be contrary to the rule's express intent of keeping such records confidential.  Thus, CPS's\nchoice to disclose similar types of records in the past does not preclude CPS from relying on\nRule 766 to withhold records in this instance.  Accordingly, this office concludes that CPS did\nnot improperly withhold records at issue here under section 7(1)( a)  of FOIA. \n\nto another\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\n1There is no conflict between FOIA and Rule 766, but even if there was, we note that, \"[ i]t is well\n\nsettled in Illinois that where a supreme court rule conflicts with a statute on the same subject, 'the rule will prevail.'\"  \nDalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper &  Kramer, Inc., 372 Ill. App. 3d 362, 370 (1st\nDist. 2007) (quoting O'Connell v. St. Francis Hospital, 112 Ill. 2d 273, 281 (1986)).    \n\n\fMr. Andrew Mason\nJanuary 13,  2023\nPage 4\n\nrequire the issuance of a binding opinion.   This file is closed.   Please contact me at ( 312)  814-\n5201 or at the Chicago address on the first page of this letter if you have questions.  \n\nVery truly yours, \n\nSenior Assistant Attorney General\nPublic Access Bureau\n\n64820 f 71a proper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Complaints and investigative files about a school district's general counsel","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-64820/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJanuary 13, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Andrew Mason\nFreedom of Information Act Officer\nChicago Public Schools\n42 West Madison, 3rd Floor\nChicago, Illinois 60602\namason19@cps. edu\n\nRE: FOIA Request for Review – 2020 PAC 64820\n\nDear\n\nand Mr. Mason: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons stated below, the\nPublic Access Bureau concludes that the response by the Chicago Public Schools (CPS) to Mr. \n\nMay 8, 2020, FOIA request did not violate the requirements of FOIA. \n\nOn May 8, 2020, \n\nsubmitted a three-part FOIA request seeking in part\n\none: \" Complaints and lawsuits against and investigative files of Joseph Moriarty General\nCounsel) along with any letters to the ARDC on his behalf and any legal bills to represent him to\nthe ARDC or in any other complaint(s) or lawsuit(s).\" On September 11, 2020, CPS denied part\none of\nFOIA request pursuant to section 7(1)(a) of FOIA (5ILCS 140/7(1)(a) \nWest 2020)), citing Illinois Supreme Court Rule 766 (Rule 766) (Ill. S. Ct. R. 766 (effective\nJune 14, 2006)). On September 16, 2020, \ncontesting the denial of part one of his FOIA request. \n\nsubmitted a Request for Review\n\nOn October 13, 2020, this office sent a copy of the Request for Review to CPS\n\nand asked it to provide copies of any withheld records responsive to part one of\nFOIA request for this office's confidential review, together with a detailed explanation of the\nfactual and legal bases for withholding the requested records. On December 4, 2020, CPS\nprovided this office its response. On December 10, 2020, this office forwarded the written\nresponse to\n\nOn December 16, 2020, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2020). Exemptions to disclosure are to be narrowly construed. Lieber v. Board of\nTrustees of Southern Illinois Univ., 176 Ill. 2d 401, 408 (1997). \n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" In its response to the Request for Review, CPS asserted that any responsive\nrequests are exempt from disclosure pursuant to section 7(1)(a) of FOIA Rule 766 as the law\nprohibiting disclosure. Rule 766 pertains to the confidentiality and privacy of proceedings\nbefore the Attorney Registration and Disciplinary Commission (ARDC) and states, in part: \n\na) Public Proceedings. Proceedings under Rules 751 through 780\nshall be public with the exception of the following matters, which\nshall be private and confidential: \n\ninvestigations conducted by the Administrator [of the ARDC] * * *. \n\nIllinois Supreme Court rules \"have the force of law, and the presumption must\n\nbe that they will be obeyed and enforced as written.\" Bright v. Dicke, 166 Ill. 2d 204, 210\n1995). The Illinois Supreme Court has explained: \" When interpreting supreme court rules, our\ncourt is guided by the same principles applicable to the construction of statutes. [ Citations.] \nWith rules, as with statutes, our goal is to ascertain and give effect to the drafters' intention. \nCitation.]\" People v. Marker, 233 Ill. 2d 158, 164– 65 (2009). \n\nSection (a) of Rule 766 expressly provides that investigations conducted by the\nAdministrator of the ARDC (Administrator) are \" private and confidential[.]\" As explained by\n\nintegrity from the irreparable harm that might result if a publicly\nannounced disciplinary investigation or charge later proved to be\nwithout substance. \n\nRule 766 does not specify who is bound by this confidentiality requirement. Its\npurpose as explained by the Court in Mitan, however, can only be served if the confidentiality\napplies broadly. Rule 766 does not contain an exception for investigations of attorneys who are\npublic employees or officials. If it did, FOIA could be used to circumvent the confidentiality\nrequirements of Rule 766. 1 Accordingly, this office has previously determined that records\nrelating to a matter that is private and confidential pursuant to Rule 766 are exempt pursuant to\nsection 7(1)(a) of FOIA. See Ill. Att'y Gen. PAC Rev. Ltr. 67547, issued December 6, 2021, at\n3-4. \n\nThe Public Access Bureau has reviewed the materials submitted by\n\ntreatment by selectively disclosing names and addresses of\n\nas well as CPS. A review of those materials establishes that CPS properly withheld any\nresponsive records because they relate to a matter that is private and confidential pursuant to\nargued that because CPS previously provided similar types of documents\nRule 766. \nin response to prior FOIA requests for records concerning other CPS employees, he is entitled to\nreceive these records as well. Yet there is no indication that CPS waived the ability to deny the\nrecords at issue here by disclosing the same records concerning the same individual\nparty. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 413\n1997) (providing preferential\ncolleges students to certain requesters while withholding the same information sought by another\nrequester waived the ability to deny the information under FOIA). Further, \"[ t]he waiver rule\nmust not be mechanically applied whenever there is disclosure of information but, rather, \nrequires consideration of the circumstances related to the disclosure, including the purpose and\nextent of the disclosure as well as the confidentiality surrounding the disclosure.\" Chicago\nAlliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 202 (1st Dist. 2004). \nCPS explained that when it learned about Rule 766 it began to apply the 7(1)(a) exemption. \nRequiring disclosure of the records at issue because CPS previously was unaware of Rule 766\nwould be contrary to the rule's express intent of keeping such records confidential. Thus, CPS's\nchoice to disclose similar types of records in the past does not preclude CPS from relying on\nRule 766 to withhold records in this instance. Accordingly, this office concludes that CPS did\nnot improperly withhold records at issue here under section 7(1)(a) of FOIA. \n\nto another\n\nThe Public Access Bureau has determined that resolution of this matter does not\n\n1 There is no conflict between FOIA and Rule 766, but even if there was, we note that, \"[ i]t is well\n\nsettled in Illinois that where a supreme court rule conflicts with a statute on the same subject, 'the rule will prevail.'\" \nDalan/Jupiter, Inc. ex rel. JRC Midway Marketplace, L.P. v. Draper & Kramer, Inc., 372 Ill. App. 3d 362, 370 (1st\n\nrequire the issuance of a binding opinion. This file is closed. Please contact me at (312) 814-\n5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nSenior Assistant Attorney General\nPublic Access Bureau\n\n64820 f 71a proper sd"}
{"id":959,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-01-28","case_number":null,"request_numbers":["64908","66410"],"title":"Village of Elmwood Park closed FOIA case on employee records denied due to requester's criminal history","filename":"64908 66410, issued January 28, 2021.pdf","rel_path":null,"word_count":1163,"summary":"The requester sought employee records including names, salaries, and badge numbers from the Village of Elmwood Park, which the Village denied citing the requester's history of impersonating officers. The PAC closed the files without issuing a binding opinion, noting the Village had responded to the requests.","plain_summary":"A requester asked the Village of Elmwood Park for employee records including names, salaries, and badge numbers. The Village denied the request, citing a FOIA exemption for account-related information, and noted the requester had a prior conviction for impersonating a police officer. The Illinois Attorney General's office found the exemption did not apply and requested the Village provide the information, except for employee identification numbers, but closed the case without issuing a binding opinion.","holding":"The Public Access Counselor determined that resolution of this matter does not require the issuance of a binding opinion; the file is closed.","legal_question":"Whether the Village of Elmwood Park properly denied a FOIA request for employee information based on the requester's criminal history.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Village of Elmwood Park","requesting_party":null,"pac_outcome":"Closed with no further action","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought names, salaries, hiring dates, and badge numbers for Village police, fire, and water department employees.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_kk/64908%2066410%2C%20issued%20January%2028%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","employee salary","FOIA request","Village of Elmwood Park"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 28,  2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr.  Peter A.  Pacione\n\nStorino,  Ramello &  Durkin\n\n9501 West Devon Avenue\n\nRosemont,  Illinois 60018\n\nppacione@srd- law. com\n\nRE:  FOIA Request\n\nfor Review — 2020 PAC 64908;  2021 PAC 66331 and 66410\n\nDear\n\nand Mr. Pacione: \n\nOn January 4,  2021,  the Public Access Bureau received a Request for Review\n2021 PAC 66331)  alleging that the Village of Elmwood Park ( Village)  had not responded to\n\nDecember 27,  2020,  Freedom of Information Act ( FOIA) ( 5 ILCS 140/ 1 et seq. \nWest 2018))  request seeking names,  employee numbers,  hiring dates,  and salaries for all Village\nemployees as well as badge numbers for police officers and firefighters ( if firefighters have\n\nbadge numbers).  On the same day,  the Village responded that it had no records to provide\nbecause\nPAC 64908. \nthe January 4,  2021,  response. \n\nrequest for the same information was under review by this office in 2020\nthen filed another Request for Review ( 2021 PAC 66410)  contesting\n\nThe Village' s January 4,  2021,  response resolves the allegation,  in 2021 PAC\n\n66331,  that the Village failed to respond to\nWith respect to the January 4,  2021,  response,  the underlying request in 2020 PAC 64908 sought\nthe names,  ranks,  badge numbers or employee numbers,  and hiring dates and salaries of the\nVillage' s Police Department and Fire Department personnel; \nnames,  titles, employee numbers, hiring dates,  and salaries of Water Department personnel.  On\nSeptember 14,  2020, the Village denied the request,  stating that\nhad been\nconvicted of impersonating a Village police officer on numerous occasions.  The Village\n\nDecember 27,  2020, FOIA request. \n\nalso requested the\n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois 60601 • (\n\n312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr.  Peter A.  Pacione\n\nJanuary 28,  2021\nPage 2\n\nsubsequently responded to this office by asserting that the requested information is exempt from\ndisclosure pursuant to section 7( 1)( kk) of FOIA,'  which permits a public body to withhold \"[ t] he\npublic body' s credit card numbers,  debit card numbers,  bank account numbers,  Federal Employer\ninformation,  the\nIdentification Number,  security code numbers,  passwords,  and similar account\ndisclosure of which could result\nentity or a person.\" ( Emphasis added.)  Alternatively,  the Village requested that\nbe asked to \" to assert or certify that he will not use the information for dishonorable or criminal\nstated that he is seeking information that is available to\npurposes.\" 2\nthe public and has no criminal purpose.  Because the underlying requests in 2020 PAC 64908 and\n2021 PAC 66410 seek overlapping information that the Village denied for the same reason,  we\nare consolidating those files for determination in this matter. \n\nin identity theft or impression or defrauding of a governmental\n\nIn his reply, \n\nIn construing statutes such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly.  See Southern Illinoisan v.  Illinois Department of\nPublic Health,  218 Ill.  2d 390,  415 ( 2006). \"[ W] hen a statute lists several classes of persons or\n\nthings but provides that the list is not exhaustive,  the class of unarticulated persons or things will\n\nbe interpreted as those ' others such like'  the named persons or things.\"  Board of Trustees of\nSouthern Illinois Univ.  v.. Illinois Dept of Human Rights,  159 Ill.  2d 206,  211 ( 1994). \nwords,  the listed terms are examples of what the General Assembly intended the statute to cover. \nSee Duffy v.  Illinois Dept of Human Rights,  354 Ill. App.  3d 236,  239 ( 4th Dist.  2004). \n\nIn other\n\nThe terms listed in section 7( 1)( kk)  of FOIA above—\" credit card numbers,  debit\n\ncard numbers,  bank account numbers, Federal Employer Identification Number,  security code\ninformation that\n\ninformation\"— are types of account\n\nnumbers,  passwords,  and similar account\n\ncould be exploited to gain unauthorized access to accounts.  Those terms are not akin to basic\n\nidentifying information such as names or badge numbers that are publicly - displayed when police\nofficers and firefighters appear in public.  Nor are they similar to ranks,  hiring dates,  or salary\ninformation,  which pertains to the Village' s use of public funds and is expressly subject to\ndisclosure under section 2. 5 of FOIA. 3 Although the Village' s concerns about misuse of the\nrequested information are understandable in light of the criminal history described in its response\nto this office in 2020 PAC 64098,  we are unable to conclude that the requested information is\n\n2020;  101- 452,  effective January 1,  2020;  101- 455,  effective August 23,  2019. \n\n5 ILCS 140/ 7( 1)( kk) ( West 2018),  as amended by Public Acts 101- 434,  effective January 1, \n\nLetter from Peter A. Pacione,  Storino,  Ramello &  Durkin,  to Steve Silverman,  Office of the\n\nAttorney General,  Assistant Attorney General,  Bureau Chief,  Public Access Bureau ( November 4,  2020),  at 2. \n\nSection 2. 5 of FOIA ( 5 ILCS 140/ 2. 5 ( West 2018))  provides that \"[ a] II records relating to the\nobligation,  receipt,  and use of public funds of the State,  units of local government,  and school districts are public\n\nrecords subject\n\nto inspection and copying by the public.\" \n\n\fMr. Peter A. Pacione\n\nJanuary 28,  2021\nPage 3\n\nfrom disclosure pursuant\n\nexempt\nFOIA4 exempts from disclosure \" private information\",  and that the Act defines that term to\n5 Accordingly,  with the exception of employee\ninclude \" employee identification number[.]\" \nwith the\n\nto section 7( 1)( kk).  We note,  however,  that section 7( 1)( b)  of\n\nidentification numbers, this office requests that the Village provide\ninformation he requested. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have questions, \nyou may contact me at ( 312)  814- 6756 or ssilverman@atg. state. il.us\n\nVery truly yours, \n\nSTEVE SILVERMAN\nBureau Chief\n\nPublic Access Bureau\n\n66331 f pb resp mun 64908 66410 f 71kk improper mun\n\n452,  effective January 1,  2020;  101- 455, effective August 23,  2019. \n\n5 ILCS 140/ 7 ( West 2018),  as amended by Public Acts 101- 434,  effective January 1,  2020;  101- \n\nSection 2. 5( c)  of FOIA ( 5 ILCS 140/ 2( c- 5) ( West 2018))  defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number,  driver' s license\nnumber,  employee identification number,  biometric identifiers,  personal\n\nfinancial\n\ninformation,  passwords or other access codes,  medical\n\nrecords,  home\n\nor personal\n\ntelephone numbers,  and personal email addresses.  Private\n\ninformationalso includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\nlicense plates,  except as\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Personnel records of police, fire, and water department employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-64908/","full_text":"FFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJanuary 28, 2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Peter A. Pacione\n\nStorino, Ramello & Durkin\n\n9501 West Devon Avenue\n\nRosemont, Illinois 60018\n\nppacione@srd- law. com\n\nRE: FOIA Request\n\nfor Review — 2020 PAC 64908; 2021 PAC 66331 and 66410\n\nDear\n\nand Mr. Pacione: \n\nOn January 4, 2021, the Public Access Bureau received a Request for Review\n2021 PAC 66331) alleging that the Village of Elmwood Park (Village) had not responded to\n\nDecember 27, 2020, Freedom of Information Act (FOIA) (5 ILCS 140/ 1 et seq. \nWest 2018)) request seeking names, employee numbers, hiring dates, and salaries for all Village\nemployees as well as badge numbers for police officers and firefighters (if firefighters have\n\nbadge numbers). On the same day, the Village responded that it had no records to provide\nbecause\nPAC 64908. \nthe January 4, 2021, response. \n\nrequest for the same information was under review by this office in 2020\nthen filed another Request for Review (2021 PAC 66410) contesting\n\nThe Village's January 4, 2021, response resolves the allegation, in 2021 PAC\n\n66331, that the Village failed to respond to\nWith respect to the January 4, 2021, response, the underlying request in 2020 PAC 64908 sought\nthe names, ranks, badge numbers or employee numbers, and hiring dates and salaries of the\nVillage's Police Department and Fire Department personnel; \nnames, titles, employee numbers, hiring dates, and salaries of Water Department personnel. On\nSeptember 14, 2020, the Village denied the request, stating that\nhad been\nconvicted of impersonating a Village police officer on numerous occasions. The Village\n\nDecember 27, 2020, FOIA request. \n\nalso requested the\n\nsubsequently responded to this office by asserting that the requested information is exempt from\ndisclosure pursuant to section 7(1)(kk) of FOIA,' which permits a public body to withhold \"[ t] he\npublic body's credit card numbers, debit card numbers, bank account numbers, Federal Employer\ninformation, the\nIdentification Number, security code numbers, passwords, and similar account\ndisclosure of which could result\nentity or a person.\" (Emphasis added.) Alternatively, the Village requested that\nbe asked to \" to assert or certify that he will not use the information for dishonorable or criminal\nstated that he is seeking information that is available to\npurposes.\" 2\nthe public and has no criminal purpose. Because the underlying requests in 2020 PAC 64908 and\n2021 PAC 66410 seek overlapping information that the Village denied for the same reason, we\nare consolidating those files for determination in this matter. \n\nin identity theft or impression or defrauding of a governmental\n\nIn his reply, \n\nIn construing statutes such as FOIA, the primary goal is to ascertain and\n\neffectuate the intent of the General Assembly. See Southern Illinoisan v. Illinois Department of\nPublic Health, 218 Ill. 2d 390, 415 (2006). \"[ W] hen a statute lists several classes of persons or\n\nthings but provides that the list is not exhaustive, the class of unarticulated persons or things will\n\nbe interpreted as those ' others such like' the named persons or things.\" Board of Trustees of\nSouthern Illinois Univ. v.. Illinois Dept of Human Rights, 159 Ill. 2d 206, 211 (1994). \nwords, the listed terms are examples of what the General Assembly intended the statute to cover. \nSee Duffy v. Illinois Dept of Human Rights, 354 Ill. App. 3d 236, 239 (4th Dist. 2004). \n\nIn other\n\nThe terms listed in section 7(1)(kk) of FOIA above—\" credit card numbers, debit\n\ncard numbers, bank account numbers, Federal Employer Identification Number, security code\ninformation that\n\ninformation\"— are types of account\n\nnumbers, passwords, and similar account\n\ncould be exploited to gain unauthorized access to accounts. Those terms are not akin to basic\n\nidentifying information such as names or badge numbers that are publicly - displayed when police\nofficers and firefighters appear in public. Nor are they similar to ranks, hiring dates, or salary\ninformation, which pertains to the Village's use of public funds and is expressly subject to\ndisclosure under section 2. 5 of FOIA. 3 Although the Village's concerns about misuse of the\nrequested information are understandable in light of the criminal history described in its response\nto this office in 2020 PAC 64098, we are unable to conclude that the requested information is\n\n2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019. \n\n5 ILCS 140/ 7(1)(kk) (West 2018), as amended by Public Acts 101- 434, effective January 1, \n\nLetter from Peter A. Pacione, Storino, Ramello & Durkin, to Steve Silverman, Office of the\n\nAttorney General, Assistant Attorney General, Bureau Chief, Public Access Bureau (November 4, 2020), at 2. \n\nSection 2. 5 of FOIA (5 ILCS 140/ 2. 5 (West 2018)) provides that \"[ a] II records relating to the\nobligation, receipt, and use of public funds of the State, units of local government, and school districts are public\n\nfrom disclosure pursuant\n\nexempt\nFOIA4 exempts from disclosure \" private information\", and that the Act defines that term to\n5 Accordingly, with the exception of employee\ninclude \" employee identification number[.]\" \nwith the\n\nto section 7(1)(kk). We note, however, that section 7(1)(b) of\n\nidentification numbers, this office requests that the Village provide\ninformation he requested. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, \nyou may contact me at (312) 814- 6756 or ssilverman@atg. state. il.us\n\nVery truly yours, \n\nSTEVE SILVERMAN\nBureau Chief\n\nPublic Access Bureau\n\n66331 f pb resp mun 64908 66410 f 71kk improper mun\n\n452, effective January 1, 2020; 101- 455, effective August 23, 2019. \n\n5 ILCS 140/ 7 (West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; 101- \n\nSection 2. 5(c) of FOIA (5 ILCS 140/ 2(c- 5) (West 2018)) defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\n\nfinancial\n\ninformation, passwords or other access codes, medical\n\nrecords, home\n\nor personal\n\ntelephone numbers, and personal email addresses. Private\n\ninformationalso includes home address and personal\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\nlicense plates, except as"}
{"id":960,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-04-19","case_number":null,"request_numbers":["65306"],"title":"Chicago Public Schools must redact student images from security footage under 7(1)(c)","filename":"65306, issued April 19, 2022.pdf","rel_path":null,"word_count":1936,"summary":"The requester sought security video footage from Chicago Public Schools, which the district denied citing student privacy exemptions; the PAC determined the district must release the footage with student images redacted.","plain_summary":"This determination addresses whether Chicago Public Schools (CPS) properly withheld security video footage under FOIA sections 7.5(r) (incorporating the Illinois School Student Records Act), 7(1)(j)(iii) (school disciplinary adjudications), and 7(1)(c) (personal privacy). The Public Access Bureau held that CPS failed to meet its clear-and-convincing-evidence burden under any of the three exemptions to withhold the entire recording: CPS did not confirm the footage became part of a student's educational record under 7.5(r), did not show a formal disciplinary hearing occurred under 7(1)(j)(iii), and could not withhold the whole video under 7(1)(c) because footage of a public employee performing public duties bears on that employee's public duties. However, images identifying students captured in the footage remain highly personal and their privacy interest outweighs the public interest in disclosure. The Bureau therefore requested that CPS provide the recording with student images redacted, without issuing a binding opinion, and the file was closed.","holding":"A public body may not withhold an entire security recording under FOIA sections 7.5(r), 7(1)(j)(iii), or 7(1)(c) absent clear and convincing evidence the footage became part of a student's educational record, that a formal disciplinary hearing occurred, or that the recording is entirely personal/private, but images identifying students within such footage may be redacted under section 7(1)(c) to protect their privacy.","legal_question":"Whether Chicago Public Schools properly denied a FOIA request for security footage in its entirety based on student privacy exemptions under section 7(1)(c).","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Chicago Public Schools","requesting_party":"EB","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request concerns security camera footage from a school event that the district withheld to protect student privacy.","ocr_status":"ok","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_r/Own-children-individual-student-incidents/65306%2C%20issued%20April%2019%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["security video","student privacy","redaction","FOIA denial"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 19, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Annie Righi\n\nFreedom of Information Act Officer\nChicago Public Schools\n\n[street address redacted for site publication -- see original PDF]\narighi@cps.edu\n\nRE: FOIA Request for Review — 2020 PAC 65306; CPS No. N008658-082520\n\nDear EB and Ms. Righi:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).\n\nOn August 25, 2020, submitted a FOIA request to Chicago\nPublic Schools (CPS) seeking \"[t]he security video for CPS Event Detail Report #678534,\nsubmitted on Thursday, January 13, 2011 for an event on either Tuesday, January 11, 2011 or\nWednesday January 12, 2011.\"' On October 13, 2020, CPS denied his request pursuant to\nsections 7(1)(j)(iii)” and 7.5(r)? of FOIA. CPS' response to EB asserted that the\nrecording fell within the scope of those exemptions because, \"[t]he video footage you seek\n\n'Chicago Public Schools' online FOIA center FOTIA request submitted by (August\n25, 2020).\n\n°5 ILCS 140/7(i)(j)Gii) (West 2020).\n\n35 ILCS 140/7.5(r) (West 2020).\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMs. Annie Righi\nApril 19, 2022\nPage 2\n\ncontains images of students, and was likely used in student disciplinary proceedings.\"* On\nOctober 20, 2020, submitted this Request for Review disputing CPS' denial of his\nrequest. In his Request for Review, aa alleged that the video footage he secks captures\na physical altercation involving a then-assistant principal and a student, which led to the then-\nassistant principal being charged for assaulting the student.’ He also asserted that the student\nreceived a $10,000 settlement from CPS because of the incident in question.\n\nOn October 28, 2020, the Pubic Access Bureau sent a copy of the Request for\nReview to CPS and asked it to provide a copy of the responsive video footage, for this office's\nconfidential review, along with a detailed explanation of the factual and legal bases for\nwithholding the recording pursuant to the above-stated sections of FOIA. On December 10,\n2020, CPS provided a written response that was submitted under a claim of confidentiality\npursuant to section 9.5(d) of FOIA,‘ and a separate, non-confidential, response for this office to\nforward oii” On December 17, 2020, this office <n a copy of the CPS's\nnon-confidential response. On January 7, 2022, this office requested additional information from\nCPS. On March 3, 2022, CPS responded to this office's inquiry.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 \\ll. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v.\nBoard of Trustees of Southern Illinois Univ., 176 Il. 2d 401, 408 (1997).\n\nSection 7.5(r) of FOIA\n\nSection 7.5(r) of FOIA exempts from inspection and copying \"[i]nformation\nprohibited from being disclosed by the Illinois School Student Records Act [ISSRA].\" Section\n\n4Letter from Annie Righi, Freedom of Information Act Officer, Chicago Public Schools, to\n\nBB (October 13, 2020).\n\nHEE 2!s0 submitted with his Request for Review a copy of CPS' investigative\nmemorandum concerning the underlying incident, which he appears to have obtained in response to a previous\nFOIA request. Identifiable student information has been redacted from this memorandum, but the un-redacted\nportion contains a very detailed description of the incident reflected in the responsive video footage.\n\n65 ILCS 140/9.5(d) (West 2020).\n\nMs. Annie Righi\nApril 19, 2022\nPage 3\n\n6(a) of ISSRA’ provides that \"[nJo school student records or information contained therein may\nbe released, transferred, disclosed or otherwise disseminated[.]\" Section 2(d) of ISSRA® broadly\ndefines \"school student record\" as \"any writing or other recorded information concerning a\nstudent and by which a student may be individually identified, maintained by a school or at its\ndirection or by an employee of a school, regardless of how or where the information is stored.\"\n(Emphasis added.)\n\nIt is undisputed that the recording in question captures former students in a\nhallway while those students were attending school. Some of the materials ii filed\nwith his Request for Review include Cook County Circuit Court records and settlement\ninformation naming a student who was involved in a civil suit concerning the underlying\nincident. | also submitted copies of police records which provide a physical\ndescription of a student involved in the incident and a CPS memorandum providing a detailed\ndescription of the video recording of the incident. When combined with this other information,\nthe responsive recording could be used to individually identify at least one student captured on\nthe footage.\n\nAn administrative rule implementing ISSRA, however, generally excludes from\nthe \"school student record\" definition, \"[v]ideo or other electronic recordings created and\nmaintained * * * for security or safety reasons or purposes, provided the information was\ncreated at least in part for law enforcement or security or safety reasons or purposes[.|\nThe rule also provides:\n\nnd\n\nThe content of a video or other electronic recording may\nbecome part of a student's school student record to the extent\nschool officials use and maintain this content for a particular\nreason (e.g., disciplinary action, compliance with a student's\nIndividualized Education Program) regarding that specific student.\nVideo or other electronic recordings that become part of a student's\nschool record shall not be a public record and shall be released\nonly in conformance with Section 6(a) of the Act and the federal\nFamily Educational Rights and Privacy Act (citation omitted)!!!\n\n7105 ILCS 10/6(a)(West 2020).\n8105 ILCS 10/2(d) (West 2020).\n\n°23 Ill. Adm. Code §375.10 (2020), last amended at 44 Ill. Reg. 13364, effective July 28, 2020\n(Emphasis added.)\n\n'°23 Ill. Adm. Code §375.10 (2020), last amended at 44 Ill. Reg. 13364, effective July 28, 2020.\n\nMs. Annie Righi\nApril 19, 2022\nPage 4\n\nBased on the plain language of the above-quoted rule, if the requested recording\nhas become a part of the former-student's educational record—because CPS used or maintained\nthat recording for a particular reason regarding that student—then the recording would constitute\na \"school student record,\" pursuant to ISSRA, and would be exempt from disclosure pursuant to\nsection 7.5(r) of FOIA. On January 7, 2022, this office asked CPS whether the responsive\nfootage became part of any student's record. On March 3, 2022, CPS maintained that the video\nwas exempt, but did not confirm that the footage had been made part of any student's record. In\nthe absence of this information, the Public Access Bureau is unable to conclude that the\nrecording constitutes a \"school student record,\" and therefore, CPS did not sustain its burden of\ndemonstrating by clear and convincing evidence that the recording is exempt in its entirety under\nsection 7.5(r) of FOIA.\n\nSection 7(1)(j)(iii) of FOIA\n\nCPS also withheld the recording under section 7(1)(j)(iii), which exempts\nfrom disclosure \"information concerning a school or university's adjudication of student\ndisciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of\nthe student[.]\" (Emphasis added.) Black's Law Dictionary defines \"adjudication\" as meaning\n\"[t]he legal process of resolving a dispute; the process of judicially deciding a case.\" Black's\nLaw Dictionary 47 (9th ed. 2020). Similarly, an \"adjudication hearing\" is defined as an\n\"[a]gency proceeding in which a person's rights and duties are decided after notice and an\nopportunity to be heard.\" Black's Law Dictionary 788 (9th ed. 2009).\n\nBased on the plain language of the exemption, the Public Access Bureau has\npreviously determined that \"to apply [s]ection 7(1)(j)(iii), a school's adjudication of a\ndisciplinary matter should include, at the very least, the commencement of some type of formal\nhearing to determine the rights of the students.\" [I]. Att'y Gen. PAC Req. Rev. Ltr. 11072, issued\nFebruary 9, 2011, at 2. Here, CPS has not demonstrated that any formal hearing was held to\ndetermine the rights of a student. Accordingly, this office concludes that CPS has not sustained\nits burden of demonstrating that the records are exempt from disclosure under section 7(1)(j)(iil)\nof FOIA.\n\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA! exempts from disclosure \"[p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\n\n\"'5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\n\nMs. Annie Righi\nApril 19, 2022\nPage 5\n\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Section 7(1)(c) further provides that \"disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an\ninvasion of personal privacy.\" (Emphasis added.)\n\nA public body's assertion that the release of information would constitute an\n‘unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130, UA. v. Department of Public Health, 327 Ul. App. 3d\n192, 19& 1st Dist. 2001). The phrase \"clearly unwarranted invasion of personal privacy\"\nevinces a strict standard to claim the exemption, and the burden is on the public body having\ncharge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994).\n\nBecause the video footage involves a public employee's actions while he was\nperforming his public duties as an assistant principal, the recording unequivocally bears on the\nperformance of that employee, and therefore, the disclosure of the footage would not constitute\nan unwarranted invasion of the assistant principal's personal privacy. See Ill. Att'y Gen. Pub.\nAcc. Op. No. 18-018, issued December 31, 2018, at 6 (complaints or allegations of misconduct\nagainst public employees are generally not exempt from disclosure in whole under section\n7(1)(c) because such information bears on the performance of the employees' public duties).\n\nFurther, there is a strong public interest in monitoring how public employees\nperform their public duties, including disclosure of records concerning a public employee's\nalleged misconduct. See Ill. Att'y Gen. Pub. Acc. Op. No. 21-007, issued July 27, 2021, at 7\n(noting a \"broad public interest in monitoring the affairs of local government to hold public\nofficials accountable.\"). However, images that identify the former student, as well as any other\nstudents that happened to be captured in the footage, are highly personal by their very nature, and\ntheir disclosure would be objectionable to a reasonable person. These students' right to privacy\noutweighs any legitimate public interest in disclosure of their images on those recordings.\n\nTherefore, this office concludes that CPS has not sustained its burden of\ndemonstrating that the recoding is exempt in its entirety pursuant to section 7(1)(c) of FOIA.\nAccordingly, this office requests that CPS provide aa with a copy of the responsiye\nrecoding, with the students! images redacted.\n\nMs. Annie Righi\nApril 19, 2022\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon.Barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON —\n\nAssistant Attorney General\nPublic Access Bureau\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Security camera footage from a school event","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65306/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 19, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Annie Righi\n\nFreedom of Information Act Officer\nChicago Public Schools\n\n[street address redacted for site publication -- see original PDF]\narighi@cps.edu\n\nRE: FOIA Request for Review — 2020 PAC 65306; CPS No. N008658-082520\n\nDear EB and Ms. Righi:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).\n\nOn August 25, 2020, submitted a FOIA request to Chicago\nPublic Schools (CPS) seeking \"[t]he security video for CPS Event Detail Report #678534,\nsubmitted on Thursday, January 13, 2011 for an event on either Tuesday, January 11, 2011 or\nWednesday January 12, 2011.\"' On October 13, 2020, CPS denied his request pursuant to\nsections 7(1)(j)(iii)” and 7.5(r)? of FOIA. CPS' response to EB asserted that the\n\ncontains images of students, and was likely used in student disciplinary proceedings.\"* On\nOctober 20, 2020, submitted this Request for Review disputing CPS' denial of his\nrequest. In his Request for Review, aa alleged that the video footage he secks captures\na physical altercation involving a then-assistant principal and a student, which led to the then-\nassistant principal being charged for assaulting the student.’ He also asserted that the student\nreceived a $10,000 settlement from CPS because of the incident in question.\n\nOn October 28, 2020, the Pubic Access Bureau sent a copy of the Request for\nReview to CPS and asked it to provide a copy of the responsive video footage, for this office's\nconfidential review, along with a detailed explanation of the factual and legal bases for\nwithholding the recording pursuant to the above-stated sections of FOIA. On December 10,\n2020, CPS provided a written response that was submitted under a claim of confidentiality\npursuant to section 9.5(d) of FOIA,‘ and a separate, non-confidential, response for this office to\nforward oii” On December 17, 2020, this office <n a copy of the CPS's\nnon-confidential response. On January 7, 2022, this office requested additional information from\nCPS. On March 3, 2022, CPS responded to this office's inquiry.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 \\ll. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v.\nBoard of Trustees of Southern Illinois Univ., 176 Il. 2d 401, 408 (1997).\n\nSection 7.5(r) of FOIA\n\nSection 7.5(r) of FOIA exempts from inspection and copying \"[i]nformation\nprohibited from being disclosed by the Illinois School Student Records Act [ISSRA].\" Section\n\n4 Letter from Annie Righi, Freedom of Information Act Officer, Chicago Public Schools, to\n\nBB (October 13, 2020).\n\nHEE 2!s0 submitted with his Request for Review a copy of CPS' investigative\nmemorandum concerning the underlying incident, which he appears to have obtained in response to a previous\nFOIA request. Identifiable student information has been redacted from this memorandum, but the un-redacted\nportion contains a very detailed description of the incident reflected in the responsive video footage.\n\n6(a) of ISSRA’ provides that \"[nJo school student records or information contained therein may\nbe released, transferred, disclosed or otherwise disseminated[.]\" Section 2(d) of ISSRA® broadly\ndefines \"school student record\" as \"any writing or other recorded information concerning a\nstudent and by which a student may be individually identified, maintained by a school or at its\ndirection or by an employee of a school, regardless of how or where the information is stored.\"\n(Emphasis added.)\n\nIt is undisputed that the recording in question captures former students in a\nhallway while those students were attending school. Some of the materials ii filed\nwith his Request for Review include Cook County Circuit Court records and settlement\ninformation naming a student who was involved in a civil suit concerning the underlying\nincident. | also submitted copies of police records which provide a physical\ndescription of a student involved in the incident and a CPS memorandum providing a detailed\ndescription of the video recording of the incident. When combined with this other information,\nthe responsive recording could be used to individually identify at least one student captured on\nthe footage.\n\nAn administrative rule implementing ISSRA, however, generally excludes from\nthe \"school student record\" definition, \"[v]ideo or other electronic recordings created and\nmaintained * * * for security or safety reasons or purposes, provided the information was\ncreated at least in part for law enforcement or security or safety reasons or purposes[.|\nThe rule also provides:\n\nnd\n\nThe content of a video or other electronic recording may\nbecome part of a student's school student record to the extent\nschool officials use and maintain this content for a particular\nreason (e.g., disciplinary action, compliance with a student's\nIndividualized Education Program) regarding that specific student.\nVideo or other electronic recordings that become part of a student's\nschool record shall not be a public record and shall be released\nonly in conformance with Section 6(a) of the Act and the federal\nFamily Educational Rights and Privacy Act (citation omitted)!!!\n\n7105 ILCS 10/6(a)(West 2020).\n8105 ILCS 10/2(d) (West 2020).\n\n°23 Ill. Adm. Code §375.10 (2020), last amended at 44 Ill. Reg. 13364, effective July 28, 2020\n(Emphasis added.)\n\n'°23 Ill. Adm. Code §375.10 (2020), last amended at 44 Ill. Reg. 13364, effective July 28, 2020.\n\nBased on the plain language of the above-quoted rule, if the requested recording\nhas become a part of the former-student's educational record—because CPS used or maintained\nthat recording for a particular reason regarding that student—then the recording would constitute\na \"school student record,\" pursuant to ISSRA, and would be exempt from disclosure pursuant to\nsection 7.5(r) of FOIA. On January 7, 2022, this office asked CPS whether the responsive\nfootage became part of any student's record. On March 3, 2022, CPS maintained that the video\nwas exempt, but did not confirm that the footage had been made part of any student's record. In\nthe absence of this information, the Public Access Bureau is unable to conclude that the\nrecording constitutes a \"school student record,\" and therefore, CPS did not sustain its burden of\ndemonstrating by clear and convincing evidence that the recording is exempt in its entirety under\nsection 7.5(r) of FOIA.\n\nSection 7(1)(j)(iii) of FOIA\n\nCPS also withheld the recording under section 7(1)(j)(iii), which exempts\nfrom disclosure \"information concerning a school or university's adjudication of student\ndisciplinary cases, but only to the extent that disclosure would unavoidably reveal the identity of\nthe student[.]\" (Emphasis added.) Black's Law Dictionary defines \"adjudication\" as meaning\n\"[t]he legal process of resolving a dispute; the process of judicially deciding a case.\" Black's\nLaw Dictionary 47 (9th ed. 2020). Similarly, an \"adjudication hearing\" is defined as an\n\"[a]gency proceeding in which a person's rights and duties are decided after notice and an\nopportunity to be heard.\" Black's Law Dictionary 788 (9th ed. 2009).\n\nBased on the plain language of the exemption, the Public Access Bureau has\npreviously determined that \"to apply [s]ection 7(1)(j)(iii), a school's adjudication of a\ndisciplinary matter should include, at the very least, the commencement of some type of formal\nhearing to determine the rights of the students.\" [I]. Att'y Gen. PAC Req. Rev. Ltr. 11072, issued\nFebruary 9, 2011, at 2. Here, CPS has not demonstrated that any formal hearing was held to\ndetermine the rights of a student. Accordingly, this office concludes that CPS has not sustained\nits burden of demonstrating that the records are exempt from disclosure under section 7(1)(j)(iil)\nof FOIA.\n\nSection 7(1)(c) of FOIA\nSection 7(1)(c) of FOIA! exempts from disclosure \"[p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\n\n\"'5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Section 7(1)(c) further provides that \"disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an\ninvasion of personal privacy.\" (Emphasis added.)\n\nA public body's assertion that the release of information would constitute an\n‘unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130, UA. v. Department of Public Health, 327 Ul. App. 3d\n192, 19& 1st Dist. 2001). The phrase \"clearly unwarranted invasion of personal privacy\"\nevinces a strict standard to claim the exemption, and the burden is on the public body having\ncharge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994).\n\nBecause the video footage involves a public employee's actions while he was\nperforming his public duties as an assistant principal, the recording unequivocally bears on the\nperformance of that employee, and therefore, the disclosure of the footage would not constitute\nan unwarranted invasion of the assistant principal's personal privacy. See Ill. Att'y Gen. Pub.\nAcc. Op. No. 18-018, issued December 31, 2018, at 6 (complaints or allegations of misconduct\nagainst public employees are generally not exempt from disclosure in whole under section\n7(1)(c) because such information bears on the performance of the employees' public duties).\n\nFurther, there is a strong public interest in monitoring how public employees\nperform their public duties, including disclosure of records concerning a public employee's\nalleged misconduct. See Ill. Att'y Gen. Pub. Acc. Op. No. 21-007, issued July 27, 2021, at 7\n(noting a \"broad public interest in monitoring the affairs of local government to hold public\nofficials accountable.\"). However, images that identify the former student, as well as any other\nstudents that happened to be captured in the footage, are highly personal by their very nature, and\ntheir disclosure would be objectionable to a reasonable person. These students' right to privacy\noutweighs any legitimate public interest in disclosure of their images on those recordings.\n\nTherefore, this office concludes that CPS has not sustained its burden of\ndemonstrating that the recoding is exempt in its entirety pursuant to section 7(1)(c) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, my\ne-mail address is Shannon.Barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON —\n\nAssistant Attorney General\nPublic Access Bureau"}
{"id":961,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-09-09","case_number":null,"request_numbers":["65404"],"title":"Village of Schiller Park did not violate FOIA by withholding fire department study under 7(1)(f)","filename":"65404, issued September 9, 2021.pdf","rel_path":null,"word_count":1845,"summary":"A requester sought a fire department study from the Village of Schiller Park, which the Village denied under the preliminary draft exemption. The PAC determined the Village properly withheld the records as they were pre-decisional and had not been publicly cited or implemented.","plain_summary":"A citizen requested a consultant's study about the local fire department, but the Village refused to release it, claiming the study was exempt as a preliminary draft. The Attorney General's office agreed with the Village, finding that both the draft and final versions of the study were exempt under section 7(1)(f) of FOIA because they were part of the Village's deliberative process and had not been publicly cited by the head of the public body. This means the public does not have an immediate right to see such pre-decisional documents, even if they are final versions.","holding":"The Village of Schiller Park did not improperly withhold the requested fire department study under section 7(1)(f) of FOIA.","legal_question":"Whether a consultant's study regarding a fire department constitutes a preliminary draft exempt from disclosure under section 7(1)(f) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(f)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Village of Schiller Park","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request sought a consultant's study concerning the operations of the Schiller Park Fire Department.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Consultants-for-public-body/65404%2C%20issued%20September%209%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["preliminary draft","consultant report","fire department","FOIA exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nSeptember 9, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Sarah Gallagher\nAttorney\nVillage of Schiller Park\nMontana &  Welch, LLC\n192 North York Street\nElmhurst, Illinois 60126\nsgallagher@montanawelch. com\n\nRE:   FOIA Request for Review –  2020 PAC 65404\n\nDear\n\nand Ms. Gallagher: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  For the reasons that follow, the\nPublic Access Bureau has determined that the Village of Schiller Park ( Village)  did not\nimproperly respond to\n\nSeptember 15, 2020, FOIA request.  \n\nOn that date, \n\nsubmitted a FOIA request to the Village seeking a copy\n\nof the study conducted by McGrath Consulting Group,  Inc. ( McGrath)  regarding the Schiller\nPark Fire Department (Fire Department), including the submitted draft and any subsequent or\nfinal drafts.   On September 29, 2020,  the Village denied\n7(1)(f) of FOIA (5 ILCS 140/7(1)(f) (West 2019 Supp.)).   The Village stated that the report had\nnot yet been shared with or implemented by the Village' s Board of Trustees ( Board),  nor had it\n\nrequest under section\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Sarah Gallagher\nSeptember 9, 2021\nPage 2\n\nbeen publicly cited and identified by the Village President.   On October 23,  2020, \n\nstated that according to a bill for the study,  a draft and then final version had been delivered,  paid\nfor, and approved by the Board.  He argued that the Board's approval of the bill for the final\nversion of the study in open session constituted publicly citing and identifying the study for\npurposes of the exception to the section 7(1)(f) exemption, and he questioned the extent to which\nany responsive records could still be considered to be drafts.   \n\nOn November 5, 2020,  this office sent a copy of\n\nreview and a detailed written explanation of the legal and factual basis for the\n\nRequest for Review\nto the Village and asked it to provide unredacted copies of the withheld records for this office's\nconfidential\napplicability of the section 7(1)(f) exemption.  On November 17, 2020, this office received those\nresponse letter, 1 copies of three\nmaterials,  including both a confidential and a non- confidential\ndrafts of the \"Audit of Efficiency and Effectiveness of the Schiller Park Fire Department\" ( Fire\nStudy),  and a copy of the final Fire Study.   On November 19,  2020,  this office forwarded a copy\nof the Village's non-confidential response letter to\noffice received\n\nOn November 21, 2020, this\n\nreply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep' t of Public Health,  218 Ill. 2d 390,  415 ( 2006).   A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1.2 (West 2020). \n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 7(1)( f) exemption is equivalent\nthe Federal FOIA (5 U.S.C. §552(b)(5) (2020)), which applies to \"inter- and intra-agency\npredecisional and deliberative material.\"   Harwood v. McDonough,  344 Ill. App.  3d 242,  247\n1st Dist. 2003).  The exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"  \nHarwood, 344 Ill. App. 3d at 248.   \n\nin most respects to the deliberative process exemption in\n\n1See 5 ILCS 140/9.5(d) (West 2018) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n\fMs. Sarah Gallagher\nSeptember 9, 2021\nPage 3\n\nFurther,  courts have determined that the section 7(1)( f) exemption may include\nconsultants' reports:  \" The pivotal fact that remains constant in each case in which the [section\n7(1)( f)] exemption has been extended to consultants'  documents is that ' the consultant does not\nrepresent an interest of its own, or the interest of any other client, when it advised the agency that\nhires it.'\"  Harwood,  344 Ill. App.  3d at 248 ( quoting Department of the Interior v. Klamath\nWater Users Protective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001)).  In Harwood, the\ncourt further clarified that the word \" preliminary\"  in section 7(1)( f) does not refer to \" the posture\nof the particular document sought to be disclosed\";  rather, \"preliminary\" refers to \"predecisional\nintra- agency communications.\"   Harwood,  344 Ill. App.  3d at 247- 48.   The court concluded that\na finished report prepared for a public body by a consultant could be withheld because the\nconsultant\npreliminary' document in relationship to the eventual and 'final' decision made by\" the public\nbody.   Harwood,  344 Ill. App.  3d at 248.   \n\nrepresented only the public body' s interests and the finished report \" was nonetheless a\n\nIn its non- confidential\n\nresponse in this matter,  the Village argued that the Fire\n\nStudy is similar to the report requested in Harwood because even though it is a final version, it\nstill serves as a \" preliminary document\nbe made by the Village with respect to the service of its Fire Department.\" 2 The Village also\nasserted that McGrath did not represent\nit created the Fire Study for the Village.  Finally, the Village argued that while its invoices for\nthe Fire Study were approved by the Board,  this approval did not constitute publicly citing and\nidentifying the Fire Study for purposes of section 7(1)(f).   \n\nits own interests or the interest of any other client when\n\nin relationship to the eventual and final decision that will\n\nIn his reply, \n\nargued that the Village failed to prove that it was still\n\nconsidering the Fire Study in the process of making its final decision.  \nindicated that\nhe believed the finalization of the Fire Study means it must be disclosed, contending:  \" The fact\nis that this is the final report and it was not favorable to an agenda and it is being kept hidden\nfrom the public.\"3\n\nThis office's review of the draft versions of the Fire Study confirmed that they\n\nwere prepared to assist the Village in making a decision regarding its Fire Department.   The draft\nversions are exempt under the plain language of section 7(1)(f), because they are deliberative\npreliminary drafts in which opinions are expressed or policies and actions are formulated.  \nFurthermore, while the final version of the Fire Study contains certain factual information about\nthe Fire Department,  the factual\ninformation is inextricably intertwined with the deliberative\ncontent.  As was the case with the consultant report in Harwood, the Fire Study is a finished\n\nAttorney General, Public Access Bureau, Office of the Attorney General (November 17, 2020).  \n\n2Letter from Sarah M. Gallagher, [ Village of Schiller Park] Attorney, to Jane Sternecky, Assistant\n\n3E- mail from\n\nto Public Access [ Bureau] ( November 21, 2020).   \n\n\fMs. Sarah Gallagher\nSeptember 9, 2021\nPage 4\n\nthat nonetheless falls within the scope of section 7(1)( f) because it was created as part\n\ndocument\nof the deliberative process for deciding whether to make certain changes to the Fire Department.  \nThe Village stated that it had not yet decided how it would use or implement\nthe Fire Study,  but\neven if it did make changes to the Fire Department based on the information set forth in the Fire\nStudy,  section 7(1)( f) still applies to the document\nThe exemption covers pre-decisional deliberative material even after a final decision concerning\nthe matter they address has been made. \n\nto protect the Board' s deliberative process.  \n\nAs to\n\nallegation that the Village waived the applicability of section\n\n7(1)(f) when the Board referenced the Fire Study in approving invoices for the project, the\nIllinois Appellate Court in Dumke v. City of Chicago,  2013 IL App ( 1st)  121668,  994 N.E.2d 573\n2013), explained that the language \"publicly cited and identified\" in section 7(1)(f) pertains to\ncircumstances in which the head of a public body publicly refers to a particular study or other\nrecord to support, illustrate, or prove the merits of a policy approach or course of action taken by\nthe public body.   Dumke,  2013 IL App ( 1st)  121668, ¶¶ 20- 24,  994 N.E.2d at 580- 82 ( concluding\nthat mayor waived exemption when he publicly described a study and explained that it brought\nabout policy changes such as putting more police officers on the street).   In its response,  the\nVillage denied waiving the section 7(1)(f) exemption because the head of the public body—\nVillage President Nick Caiafa— did not publicly cite or identify the final version of the Fire\nStudy.4 The Village explained that in June 2019, the Board authorized Village Manager Dave\nStrahl to use up to $35,000 of funds for the preparation of a report by a consulting firm, and he\nthen oversaw approval and payment of the three invoices for the Fire Study.  Even if Mr. Strahl\nqualified as the \" head of the public body,\"  this office has received no information indicating that\nhe publicly remarked on the substance of the Fire Study to support any course of action.  \nApproving invoices does not constitute publicly citing and identifying a record.   This office also\nreceived no information indicating that Village President Caiafa publicly cited and identified the\nFire Study.   Therefore,  this office concludes that the Village did not waive the applicability of\nsection 7(1)(f), and that the Village did not improperly withhold the draft or final copies of the\nFire Study pursuant to that exemption. \n\n4FOIA defines \" head of the public body\"  as \" the president, mayor, chairman, presiding officer, \n\ndirector, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person's duly authorized designee.\" \n\n\fMs. Sarah Gallagher\nSeptember 9, 2021\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter or by e- mail at\njane.sternecky@ilag.gov.  This letter serves to close this file. \n\nVery truly yours, \n\nJANE STERNECKY\nAssistant Attorney General\nPublic Access Bureau\n\n65404 f 71f proper mun\n\ncc:  \n\nVia electronic mail\nMr. Brian Bursiek\nAssistant Village Manager\nVillage of Schiller Park\n9526 West Irving Park Road\nSchiller Park,  Illinois 60176\nbbursiek@schillerparkil.us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A consultant's study of a fire department's operations","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65404/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nSeptember 9, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Sarah Gallagher\nAttorney\nVillage of Schiller Park\nMontana & Welch, LLC\n192 North York Street\nElmhurst, Illinois 60126\nsgallagher@montanawelch. com\n\nRE: FOIA Request for Review – 2020 PAC 65404\n\nDear\n\nand Ms. Gallagher: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau has determined that the Village of Schiller Park (Village) did not\nimproperly respond to\n\nSeptember 15, 2020, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Village seeking a copy\n\nof the study conducted by McGrath Consulting Group, Inc. (McGrath) regarding the Schiller\nPark Fire Department (Fire Department), including the submitted draft and any subsequent or\nfinal drafts. On September 29, 2020, the Village denied\n7(1)(f) of FOIA (5 ILCS 140/7(1)(f) (West 2019 Supp.)). The Village stated that the report had\nnot yet been shared with or implemented by the Village's Board of Trustees (Board), nor had it\n\nrequest under section\n\nbeen publicly cited and identified by the Village President. On October 23, 2020, \n\nstated that according to a bill for the study, a draft and then final version had been delivered, paid\nfor, and approved by the Board. He argued that the Board's approval of the bill for the final\nversion of the study in open session constituted publicly citing and identifying the study for\npurposes of the exception to the section 7(1)(f) exemption, and he questioned the extent to which\nany responsive records could still be considered to be drafts. \n\nOn November 5, 2020, this office sent a copy of\n\nreview and a detailed written explanation of the legal and factual basis for the\n\nRequest for Review\nto the Village and asked it to provide unredacted copies of the withheld records for this office's\nconfidential\napplicability of the section 7(1)(f) exemption. On November 17, 2020, this office received those\nresponse letter, 1 copies of three\nmaterials, including both a confidential and a non- confidential\ndrafts of the \"Audit of Efficiency and Effectiveness of the Schiller Park Fire Department\" (Fire\nStudy), and a copy of the final Fire Study. On November 19, 2020, this office forwarded a copy\nof the Village's non-confidential response letter to\noffice received\n\nOn November 21, 2020, this\n\nreply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep' t of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2020). \n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent\nthe Federal FOIA (5 U.S.C. §552(b)(5) (2020)), which applies to \"inter- and intra-agency\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n1st Dist. 2003). The exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\" \nHarwood, 344 Ill. App. 3d at 248. \n\nin most respects to the deliberative process exemption in\n\n1 See 5 ILCS 140/9.5(d) (West 2018) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\n\nFurther, courts have determined that the section 7(1)(f) exemption may include\nconsultants' reports: \" The pivotal fact that remains constant in each case in which the [section\n7(1)(f)] exemption has been extended to consultants' documents is that ' the consultant does not\nrepresent an interest of its own, or the interest of any other client, when it advised the agency that\nhires it.'\" Harwood, 344 Ill. App. 3d at 248 (quoting Department of the Interior v. Klamath\nWater Users Protective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001)). In Harwood, the\ncourt further clarified that the word \" preliminary\" in section 7(1)(f) does not refer to \" the posture\nof the particular document sought to be disclosed\"; rather, \"preliminary\" refers to \"predecisional\nintra- agency communications.\" Harwood, 344 Ill. App. 3d at 247- 48. The court concluded that\na finished report prepared for a public body by a consultant could be withheld because the\nconsultant\npreliminary' document in relationship to the eventual and 'final' decision made by\" the public\nbody. Harwood, 344 Ill. App. 3d at 248. \n\nrepresented only the public body's interests and the finished report \" was nonetheless a\n\nIn its non- confidential\n\nresponse in this matter, the Village argued that the Fire\n\nStudy is similar to the report requested in Harwood because even though it is a final version, it\nstill serves as a \" preliminary document\nbe made by the Village with respect to the service of its Fire Department.\" 2 The Village also\nasserted that McGrath did not represent\nit created the Fire Study for the Village. Finally, the Village argued that while its invoices for\nthe Fire Study were approved by the Board, this approval did not constitute publicly citing and\nidentifying the Fire Study for purposes of section 7(1)(f). \n\nits own interests or the interest of any other client when\n\nin relationship to the eventual and final decision that will\n\nIn his reply, \n\nargued that the Village failed to prove that it was still\n\nconsidering the Fire Study in the process of making its final decision. \nindicated that\nhe believed the finalization of the Fire Study means it must be disclosed, contending: \" The fact\nis that this is the final report and it was not favorable to an agenda and it is being kept hidden\nfrom the public.\"3\n\nThis office's review of the draft versions of the Fire Study confirmed that they\n\nwere prepared to assist the Village in making a decision regarding its Fire Department. The draft\nversions are exempt under the plain language of section 7(1)(f), because they are deliberative\npreliminary drafts in which opinions are expressed or policies and actions are formulated. \nFurthermore, while the final version of the Fire Study contains certain factual information about\nthe Fire Department, the factual\ninformation is inextricably intertwined with the deliberative\ncontent. As was the case with the consultant report in Harwood, the Fire Study is a finished\n\nAttorney General, Public Access Bureau, Office of the Attorney General (November 17, 2020). \n\n2 Letter from Sarah M. Gallagher, [ Village of Schiller Park] Attorney, to Jane Sternecky, Assistant\n\nthat nonetheless falls within the scope of section 7(1)(f) because it was created as part\n\ndocument\nof the deliberative process for deciding whether to make certain changes to the Fire Department. \nThe Village stated that it had not yet decided how it would use or implement\nthe Fire Study, but\neven if it did make changes to the Fire Department based on the information set forth in the Fire\nStudy, section 7(1)(f) still applies to the document\nThe exemption covers pre-decisional deliberative material even after a final decision concerning\nthe matter they address has been made. \n\nto protect the Board's deliberative process. \n\nAs to\n\nallegation that the Village waived the applicability of section\n\n7(1)(f) when the Board referenced the Fire Study in approving invoices for the project, the\nIllinois Appellate Court in Dumke v. City of Chicago, 2013 IL App (1st) 121668, 994 N.E.2d 573\n2013), explained that the language \"publicly cited and identified\" in section 7(1)(f) pertains to\ncircumstances in which the head of a public body publicly refers to a particular study or other\nrecord to support, illustrate, or prove the merits of a policy approach or course of action taken by\nthe public body. Dumke, 2013 IL App (1st) 121668, ¶¶ 20- 24, 994 N.E.2d at 580- 82 (concluding\nthat mayor waived exemption when he publicly described a study and explained that it brought\nabout policy changes such as putting more police officers on the street). In its response, the\nVillage denied waiving the section 7(1)(f) exemption because the head of the public body—\nVillage President Nick Caiafa— did not publicly cite or identify the final version of the Fire\nStudy.4 The Village explained that in June 2019, the Board authorized Village Manager Dave\nStrahl to use up to $35,000 of funds for the preparation of a report by a consulting firm, and he\nthen oversaw approval and payment of the three invoices for the Fire Study. Even if Mr. Strahl\nqualified as the \" head of the public body,\" this office has received no information indicating that\nhe publicly remarked on the substance of the Fire Study to support any course of action. \nApproving invoices does not constitute publicly citing and identifying a record. This office also\nreceived no information indicating that Village President Caiafa publicly cited and identified the\nFire Study. Therefore, this office concludes that the Village did not waive the applicability of\nsection 7(1)(f), and that the Village did not improperly withhold the draft or final copies of the\nFire Study pursuant to that exemption. \n\n4FOIA defines \" head of the public body\" as \" the president, mayor, chairman, presiding officer, \n\ndirector, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me by\nmail at the Chicago address listed on the first page of this letter or by e- mail at\njane.sternecky@ilag.gov. This letter serves to close this file. \n\nVery truly yours, \n\nJANE STERNECKY\nAssistant Attorney General\nPublic Access Bureau\n\n65404 f 71f proper mun\n\ncc: \n\nVia electronic mail\nMr. Brian Bursiek\nAssistant Village Manager\nVillage of Schiller Park\n9526 West Irving Park Road\nSchiller Park, Illinois 60176\nbbursiek@schillerparkil.us"}
{"id":962,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2020-11-23","case_number":null,"request_numbers":["65701"],"title":"Office of the Attorney General did not violate FOIA by directing incarcerated requester to website without statutory process","filename":"65701, issued November 23, 2020.pdf","rel_path":null,"word_count":562,"summary":"An incarcerated individual requested physical copies of consumer fraud forms and rules, but the Attorney General's Office directed the requester to its website. The PAC determined that because the requester failed to follow the statutory procedure for notifying the public body of their inability to access the website, no further action was warranted.","plain_summary":"An incarcerated person asked for paper copies of documents that were available on the Attorney General's website. The Attorney General's office told the requester to look online, but the requester did not follow the specific legal steps required to ask for paper copies when they cannot access the internet. Because the requester skipped these steps, the PAC closed the case without finding a violation.","holding":"The Attorney General's Office did not violate FOIA by directing the requester to its website, as the requester did not follow the statutory process for claiming an inability to access online records.","legal_question":"Whether a public body violates FOIA by directing a requester to its website when the requester is unable to access the internet, without the requester first invoking the statutory procedure for such an inability.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/8.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Office of the Attorney General","requesting_party":"Stateville Correctional Center inmate","pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"online records","subject_description":"The requester sought physical copies of consumer fraud forms and rules that were already published on the public body's website.","ocr_status":"ok","ocr_quality":92.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/8.5/8.5_a/65701%2C%20issued%20November%2023%2C%202020.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["online records","incarcerated requester","website access","FOIA procedure"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nNovember 23,  2020\n\nStateville Correctional Center\n\nP. O.  Box 112\n\n[street address redacted for site publication -- see original PDF]\nRE:  FOIA Request for Review — 2020 PAC 65701\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)).  For the reasons stated below, the\n\nPublic Access Bureau concludes that no further action is warranted as to this matter. \n\nOn October 26,  2020,  the Office of the Attorney General ( Attorney General' s\n\nOffice)  received your FOIA request seeking various records including copies of consumer fraud\nforms and rules and regulations on how to file a consumer fraud complaint.  On November 2, \n2020, the Senior FOIA Officer responded by providing web addresses on the Attorney General' s\nOffice' s website for accessing the records responsive to those portions of your request.  You\ndispute that response because you are incarcerated and do not have access to the internet. \n\nSection 8. 5( a)  of FOIA ( 5 ILCS 140/ 8. 5( a)) ( West 2018))  provides that \" a public\nbody is not required to copy a public record that is published on the public body' s website.  The\npublic body shall notify the requester that the public record is available online and direct the\nrequester\n5 ILCS 140/ 8. 5( b) ( West 2018))  further provides: \n\nto the website where the record can be reasonably accessed.\"  Section 8. 5( b)  of FOIA\n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant\n\nto subsection ( a)  of this Section,  the requester\n\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online,  and the public\nbody shall make the requested record available for inspection and\ncopying as provided in Section 3 of this Act. \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave..  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fNovember 23,  2020\n\nPage 2\n\nBecause the records you are seeking are available on the Attorney General' s Office' s website, \nsection 8. 5( a)  relieved the Attorney General's Office of the obligation to send you physical\ncopies of those records.  Further, there is no indication that you re -submitted your request to the\n\nAttorney General' s Office stating that you were unable to reasonably access the records online. \nAccordingly, there is no basis for the Public Access to conclude that the response to your request\nviolated FOIA. \n\naddress on the bottom of the first page of this letter. \n\nThis file is closed.  If you have any questions,  please contact me at the Chicago\n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n65701 f no fi war sa\n\nEnclosure\n\ncc: \n\nVia electronic mail\n\nMs.  Caitlin Q.  Knutte\nAssistant Attorney General and Senior FOIA Officer\nIllinois Attorney General' s Office\n500 South Second Street\n\nSpringfield,  Illinois 62706\n\nfoiaofficer@atg. state. il. us\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Consumer fraud forms and rules on a public body's website","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-65701/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nNovember 23, 2020\n\nStateville Correctional Center\n\nP. O. Box 112\n\n[street address redacted for site publication -- see original PDF]\nRE: FOIA Request for Review — 2020 PAC 65701\n\nDear\n\nThis determination is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2018)). For the reasons stated below, the\n\nPublic Access Bureau concludes that no further action is warranted as to this matter. \n\nOn October 26, 2020, the Office of the Attorney General (Attorney General's\n\nOffice) received your FOIA request seeking various records including copies of consumer fraud\nforms and rules and regulations on how to file a consumer fraud complaint. On November 2, \n2020, the Senior FOIA Officer responded by providing web addresses on the Attorney General's\nOffice's website for accessing the records responsive to those portions of your request. You\ndispute that response because you are incarcerated and do not have access to the internet. \n\nSection 8. 5(a) of FOIA (5 ILCS 140/ 8. 5(a)) (West 2018)) provides that \" a public\nbody is not required to copy a public record that is published on the public body's website. The\npublic body shall notify the requester that the public record is available online and direct the\nrequester\n5 ILCS 140/ 8. 5(b) (West 2018)) further provides: \n\nto the website where the record can be reasonably accessed.\" Section 8. 5(b) of FOIA\n\nIf the person requesting the public record is unable to\nreasonably access the record online after being directed to the\nwebsite pursuant\n\nto subsection (a) of this Section, the requester\n\nmay resubmit his or her request for the record stating his or her\ninability to reasonably access the record online, and the public\nbody shall make the requested record available for inspection and\ncopying as provided in Section 3 of this Act. \n\nBecause the records you are seeking are available on the Attorney General's Office's website, \nsection 8. 5(a) relieved the Attorney General's Office of the obligation to send you physical\ncopies of those records. Further, there is no indication that you re -submitted your request to the\n\nAttorney General's Office stating that you were unable to reasonably access the records online. \nAccordingly, there is no basis for the Public Access to conclude that the response to your request\nviolated FOIA. \n\naddress on the bottom of the first page of this letter. \n\nThis file is closed. If you have any questions, please contact me at the Chicago\n\nVery truly yours, \n\nSTEVE SILVERMAN\n\nBureau Chief\n\nPublic Access Bureau\n\n65701 f no fi war sa\n\nEnclosure\n\ncc: \n\nVia electronic mail\n\nMs. Caitlin Q. Knutte\nAssistant Attorney General and Senior FOIA Officer\nIllinois Attorney General's Office\n500 South Second Street\n\nSpringfield, Illinois 62706\n\nfoiaofficer@atg. state. il. us"}
{"id":963,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-04-30","case_number":null,"request_numbers":["66131"],"title":"City of Centralia improperly redacted client and attorney names from legal bills under 7(1)(m)","filename":"66131, issued April 30, 2021.pdf","rel_path":null,"word_count":1656,"summary":"The requester sought purchase orders and invoices for payments made by the City of Centralia to a law firm, but the City redacted information citing multiple FOIA exemptions. The PAC determined that the City improperly redacted client and attorney names from the billing entries under section 7(1)(m).","plain_summary":"A citizen requested records of payments the City of Centralia made to a law firm. The City provided the records but blacked out names of clients and attorneys, claiming legal privilege. The Attorney General's office found these redactions were improper and requested that the City provide the unredacted documents.","holding":"The City of Centralia improperly redacted client and attorney names from legal billing records under section 7(1)(m) of FOIA.","legal_question":"Whether the City of Centralia properly invoked section 7(1)(m) of FOIA to redact the names of clients and attorneys from legal billing records.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(m)","7(1)(n)","7(1)(p)"],"public_body":"City of Centralia","requesting_party":"Mr. Lyberger","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"legal bills","subject_description":"The request concerned invoices and purchase orders for legal services paid for by the City.","ocr_status":"ok","ocr_quality":93.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/66131%2C%20issued%20April%2030%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["legal bills","redaction","attorney-client privilege","FOIA request"],"truncated_suspect":0,"site_category":"Legal & Financial Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 30, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Kim Enke\n\nCity Clerk and FOIA Officer\nCity of Centralia\n\n[street address redacted for site publication -- see original PDF]\nkaenke@cityofcentralia.org\n\nRE: FOIA Request for Review — 2020 PAC 66131\n\nDear and Ms. Enke:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the response by the City of Centralia (City) improperly\nredacted certain portions of records responsive to ecember 7, 2020,\nFOIA request.\n\nOn that date EE submitted a FOIA request to the City seeking copies\nof purchase orders and invoices for payments made by the City to a particular law firm since\nOctober 1, 2019. On December 14, 2020, the City provided the responsive records but redacted\ncertain information pursuant to sections 7(1)(c), 7(1)(m), 7(1)(n), and 7(1)(p) of FOIA (5 ILCS\n140/7(1)(c), (an), (1)(n), (1)(p) (West 2019 Supp.)). On December 15, 2020, this office\nreceived Mr. Lyberger's Request for Review disputing the City's redactions to those documents.\n\nOn January 6, 2021, this office sent a copy of the Request for Review to the City\nand asked it to provide unredacted copies of the responsive records for our confidential review\nand a written explanation of the factual and legal bases for the assertion of the above-stated\nsections of FOIA to the redacted information. On January 11, 2021, the City furnished those\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 * Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMs. Kim Enke\nApril 30, 2021\nPage 4\n\nmaterials and a written answer. On January 12, 2021, this office forwarded a copy of the City's\nanswer to a. he did not reply.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2018); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 Ml. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2018).\n\nSection 7(1)(m) of FOIA exempts from disclosure communications between a\npublic body and an attorney which would not be subject to discovery in litigation, including\ncommunications covered by the attorney-client privilege. The attorney-client privilege applies to\ncommunications:\n\n(1) Where legal advice of any kind is sought, (2) from a\nprofessional legal advisor in his capacity as such, (3) the\ncommunications relating to that purpose, (4) made in confidence,\n(5) by the client, (6) are permanently protected, (7) from disclosure\nby himself or the legal advisor, (8) except the protection be\nwaived. I/linois Education Ass'n v. Illinois State Board of\nEducation, 204 Ill. 2d 456, 467 (2003).\n\nIn People v. ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 203-04 (1997), the\nIllinois Supreme Court held that \"information regarding a client's fees generally is not a\n‘confidential communication’ between an attorney and client, and thus is not protected by the\nattorney client privilege. [Citations.] The payment of fees is merely incidental to the attorney-\nclient relationship and typically does not involve the disclosure of confidential communications\narising from the relationship.\" The Court, however, acknowledged that \"[c]ertain types of billing\nrecords may contain explanations for legal fees and may indicate the type of work done or\nmatters discussed between the attorney and client. As such, they could reveal the substance of\nconfidential attorney-client discussions, and be subject to valid claims of attorney-client privilege\nor exemption under [FOIA].\" (Emphasis added.) Stukel, 294 Ill. App. 3d at 201. Because the\nrecords at issue \"made no reference to the pending litigation other than to name the payee law\nfirm, and designate the amount and the date of each payment[,]\" (Stukel, 294 Ill. App. 3d at 201),\nthe Court did not further elaborate on the type of information that could be properly redacted\nfrom legal billing invoices based on the attorney-client privilege.\n\nMs. Kim Enke\nApril 30, 2021\nPage 4\n\nIn analyzing whether legal billing invoices were subject to disclosure pursuant to\nan administrative subpoena, a Federal appeals court distinguished privileged material from\ngeneral information concerning legal services:\n\nNot all communications between attorney and client are\nprivileged. Our decisions have recognized that the identity of the\nclient, the amount of the fee, the identification of payment by\ncase file name, and the general purpose of the work performed\nare usually not protected from disclosure by the attorney-client\nprivilege. [Citations.] However, correspondence, bills, ledgers,\nstatements, and time records which also reveal the motive of the\nclient in seeking representation, litigation strategy, or the specific\nnature of the services provided, such as researching particular\nareas of law, fall within the privilege. (Emphasis added.) Clarke\nv. American Commerce National Bank, 974 F.2d 127, 130 (9th Cir.\n1992).\n\nSee also Hampton Police Association v. Town of Hampton, 162 N.H. 7, 15, 20 A.3d 994, 1001\n(N.H. 2011) (\"Courts generally agree that billing statements that provide only general\ndescriptions of the nature of the services performed and do not reveal the subject of confidential\ncommunications with any specificity are not privileged.\" (Emphasis in original.)); U.S. v.\nNaegele, 468 F.Supp.2d 165, 171 (D.D.C. 2007) (billing statements that are \"general and do not\nreveal any litigation strategy or other specifics of the representation or any confidential client\ncommunications[] * * * are not protected by the attorney-client privilege.\"). To be privileged,\nbilling invoices must \"include detailed entries which advise, analyze or discuss privileged\ncommunications.\" (Emphasis in original.) Tipton v. Barton, 747 S.W.2d 325, 332 (Mo. Ct. App.\n1988); see also Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) (billing invoices that\nidentified the specific federal statutes that an attorney researched were privileged because\ndisclosure \"would divulge confidential information regarding legal advice\"). Construing Stukel\nand other legal precedents on the subject of legal billing invoices, the Attorney General has\nissued two binding opinions (III. Att'y Gen. Pub. Acc. Op. No. 12-005, issued March 12, 2012;\nIll. Att'y Gen. Pub. Acc. Op. No. 14-002, issued April 15, 2014) concluding that while detailed\ndescriptions of work performed may be redacted pursuant to section 7(1)(m), generic\ndescriptions (such as \"held telephone conference\" or \"drafted e-mail\") are not exempt from\ndisclosure.\n\nIn its response to this office, the City asserted that the information redacted from\nthe responsive invoices contained, \"detailed information covering a wide range of confidential\n\nMs. Kim Enke\nApril 30, 2021\nPage 4\n\nand sensitive information\"! and indicated that the redactions related to the subject matter of the\nlegal services provided, including: \"correspondence and communication discussing opinions\nwith an attorney for the ongoing matters involving multiple employees and collective bargaining\nunits.” This office has reviewed and compared the redacted version of the invoices to the\ncomplete version. The redacted version reveals the dates on which work was performed, the\ninitials of the attorney who performed the work, the numbers of hours billed, and the total\namount billed for those entries. Each entry also discloses the type of work performed (such as\n\"[t]elephone conference,\" [e]mail correspondence,\" \"[a]nalysis of records\"), and the subject of\nthe work in instances when the subject is stated in general terms (such as \"[a]nalysis of COBRA\nrules for health FSA\").\n\nNearly all of the information redacted from the invoices concerns particular\nsubjects of legal advice and contains details about the advice that was sought or given. Because\nthe disclosure of this information would reveal the substance of confidential attorney-client\ncommunications, it falls within the scope of section 7(1)(m) of FOIA and was not improperly\nredacted prior to the disclosure of the bills to\n\nHowever, the City also redacted some information that would not reveal legal\nstrategy or confidential attorney-client communications. In particular, the City's redactions\nincluded names of clients and attorneys with whom the attorneys had communicated. As stated\nin Clarke, the identity of a client generally is not privileged. See Clarke, 974 F.2d at 130 (\"The\nidentity of the client [is] * * * usually not protected from disclosure by the attorney-client\nprivilege.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 56112, issued April 8, 2019, at 8\n(concluding that village improperly redacted client's name and title from legal invoices). The\nCity has not described how the disclosure of the identity of these individuals would reveal the\nsubstance of litigation strategy or confidential communications, and this office cannot discern\nhow these details are protected by the attorney-client privilege. Accordingly, this office finds\nthat the City improperly relied on section 7(1)(m) of FOIA to redact client and attorney names\nfrom the responsive billing entries. This office requests that the City ‘urnish A ich\ncopies of the redacted legal bills which disclose the names of the clients and attorneys.\n\n'Letter from Kim Enke, City Clerk, City of Centralia, to Shannon Barnaby, [Assistant Attorney\nGeneral], Office of the Attorney General, Public Access Bureau (January 11, 2021).\n\n*Letter from Kim Enke, City Clerk, City of Centralia, to Shannon Barnaby, [Assistant Attorney\nGeneral], Office of the Attorney General, Public Access Bureau (January 11, 2021).\n\nMs. Kim Enke\nApril 30, 2021\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this matter.> If you have\n\nquestions, you may contact me by mail at the Chicago address on the bottom of the first page of\nthis letter.\n\nSHANNON BARNAB\nAssistant Attorney General\nPublic Access Bureau\n\n66131 f 71m proper improper mun\n\nBecause this determination resolves this matter, the Public Access Bureau need not address the\napplicability of sections 7(1)(c), 7(1)(n), and 7(1)(p) of FOIA to the redacted information.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Invoices and purchase orders for legal services","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66131/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 30, 2021\n\nVia electronic mail\n\nVia electronic mail\n\nMs. Kim Enke\n\nCity Clerk and FOIA Officer\nCity of Centralia\n\n[street address redacted for site publication -- see original PDF]\nkaenke@cityofcentralia.org\n\nRE: FOIA Request for Review — 2020 PAC 66131\n\nDear and Ms. Enke:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons explained below, the\nPublic Access Bureau concludes that the response by the City of Centralia (City) improperly\nredacted certain portions of records responsive to ecember 7, 2020,\nFOIA request.\n\nOn that date EE submitted a FOIA request to the City seeking copies\nof purchase orders and invoices for payments made by the City to a particular law firm since\nOctober 1, 2019. On December 14, 2020, the City provided the responsive records but redacted\ncertain information pursuant to sections 7(1)(c), 7(1)(m), 7(1)(n), and 7(1)(p) of FOIA (5 ILCS\n140/7(1)(c), (an), (1)(n), (1)(p) (West 2019 Supp.)). On December 15, 2020, this office\nreceived Mr. Lyberger's Request for Review disputing the City's redactions to those documents.\n\nOn January 6, 2021, this office sent a copy of the Request for Review to the City\nand asked it to provide unredacted copies of the responsive records for our confidential review\nand a written explanation of the factual and legal bases for the assertion of the above-stated\nsections of FOIA to the redacted information. On January 11, 2021, the City furnished those\n\nmaterials and a written answer. On January 12, 2021, this office forwarded a copy of the City's\nanswer to a. he did not reply.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2018); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 Ml. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2018).\n\nSection 7(1)(m) of FOIA exempts from disclosure communications between a\npublic body and an attorney which would not be subject to discovery in litigation, including\ncommunications covered by the attorney-client privilege. The attorney-client privilege applies to\ncommunications:\n\n(1) Where legal advice of any kind is sought, (2) from a\nprofessional legal advisor in his capacity as such, (3) the\ncommunications relating to that purpose, (4) made in confidence,\n(5) by the client, (6) are permanently protected, (7) from disclosure\nby himself or the legal advisor, (8) except the protection be\nwaived. I/linois Education Ass'n v. Illinois State Board of\nEducation, 204 Ill. 2d 456, 467 (2003).\n\nIn People v. ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 203-04 (1997), the\nIllinois Supreme Court held that \"information regarding a client's fees generally is not a\n‘confidential communication’ between an attorney and client, and thus is not protected by the\nattorney client privilege. [Citations.] The payment of fees is merely incidental to the attorney-\nclient relationship and typically does not involve the disclosure of confidential communications\narising from the relationship.\" The Court, however, acknowledged that \"[c]ertain types of billing\nrecords may contain explanations for legal fees and may indicate the type of work done or\nmatters discussed between the attorney and client. As such, they could reveal the substance of\nconfidential attorney-client discussions, and be subject to valid claims of attorney-client privilege\nor exemption under [FOIA].\" (Emphasis added.) Stukel, 294 Ill. App. 3d at 201. Because the\nrecords at issue \"made no reference to the pending litigation other than to name the payee law\nfirm, and designate the amount and the date of each payment[,]\" (Stukel, 294 Ill. App. 3d at 201),\nthe Court did not further elaborate on the type of information that could be properly redacted\n\nIn analyzing whether legal billing invoices were subject to disclosure pursuant to\nan administrative subpoena, a Federal appeals court distinguished privileged material from\ngeneral information concerning legal services:\n\nNot all communications between attorney and client are\nprivileged. Our decisions have recognized that the identity of the\nclient, the amount of the fee, the identification of payment by\ncase file name, and the general purpose of the work performed\nare usually not protected from disclosure by the attorney-client\nprivilege. [Citations.] However, correspondence, bills, ledgers,\nstatements, and time records which also reveal the motive of the\nclient in seeking representation, litigation strategy, or the specific\nnature of the services provided, such as researching particular\nareas of law, fall within the privilege. (Emphasis added.) Clarke\nv. American Commerce National Bank, 974 F.2d 127, 130 (9th Cir.\n1992).\n\nSee also Hampton Police Association v. Town of Hampton, 162 N.H. 7, 15, 20 A.3d 994, 1001\n(N.H. 2011) (\"Courts generally agree that billing statements that provide only general\ndescriptions of the nature of the services performed and do not reveal the subject of confidential\ncommunications with any specificity are not privileged.\" (Emphasis in original.)); U.S. v.\nNaegele, 468 F.Supp.2d 165, 171 (D.D.C. 2007) (billing statements that are \"general and do not\nreveal any litigation strategy or other specifics of the representation or any confidential client\ncommunications[] * * * are not protected by the attorney-client privilege.\"). To be privileged,\nbilling invoices must \"include detailed entries which advise, analyze or discuss privileged\ncommunications.\" (Emphasis in original.) Tipton v. Barton, 747 S.W.2d 325, 332 (Mo. Ct. App.\n1988); see also Chaudhry v. Gallerizzo, 174 F.3d 394, 403 (4th Cir. 1999) (billing invoices that\nidentified the specific federal statutes that an attorney researched were privileged because\ndisclosure \"would divulge confidential information regarding legal advice\"). Construing Stukel\nand other legal precedents on the subject of legal billing invoices, the Attorney General has\nissued two binding opinions (III. Att'y Gen. Pub. Acc. Op. No. 12-005, issued March 12, 2012;\nIll. Att'y Gen. Pub. Acc. Op. No. 14-002, issued April 15, 2014) concluding that while detailed\ndescriptions of work performed may be redacted pursuant to section 7(1)(m), generic\ndescriptions (such as \"held telephone conference\" or \"drafted e-mail\") are not exempt from\ndisclosure.\n\nIn its response to this office, the City asserted that the information redacted from\nthe responsive invoices contained, \"detailed information covering a wide range of confidential\n\nand sensitive information\"! and indicated that the redactions related to the subject matter of the\nlegal services provided, including: \"correspondence and communication discussing opinions\nwith an attorney for the ongoing matters involving multiple employees and collective bargaining\nunits.” This office has reviewed and compared the redacted version of the invoices to the\ncomplete version. The redacted version reveals the dates on which work was performed, the\ninitials of the attorney who performed the work, the numbers of hours billed, and the total\namount billed for those entries. Each entry also discloses the type of work performed (such as\n\"[t]elephone conference,\" [e]mail correspondence,\" \"[a]nalysis of records\"), and the subject of\nthe work in instances when the subject is stated in general terms (such as \"[a]nalysis of COBRA\nrules for health FSA\").\n\nNearly all of the information redacted from the invoices concerns particular\nsubjects of legal advice and contains details about the advice that was sought or given. Because\nthe disclosure of this information would reveal the substance of confidential attorney-client\ncommunications, it falls within the scope of section 7(1)(m) of FOIA and was not improperly\nredacted prior to the disclosure of the bills to\n\nHowever, the City also redacted some information that would not reveal legal\nstrategy or confidential attorney-client communications. In particular, the City's redactions\nincluded names of clients and attorneys with whom the attorneys had communicated. As stated\nin Clarke, the identity of a client generally is not privileged. See Clarke, 974 F.2d at 130 (\"The\nidentity of the client [is] * * * usually not protected from disclosure by the attorney-client\nprivilege.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 56112, issued April 8, 2019, at 8\n(concluding that village improperly redacted client's name and title from legal invoices). The\nCity has not described how the disclosure of the identity of these individuals would reveal the\nsubstance of litigation strategy or confidential communications, and this office cannot discern\nhow these details are protected by the attorney-client privilege. Accordingly, this office finds\nthat the City improperly relied on section 7(1)(m) of FOIA to redact client and attorney names\nfrom the responsive billing entries. This office requests that the City ‘urnish A ich\ncopies of the redacted legal bills which disclose the names of the clients and attorneys.\n\n'Letter from Kim Enke, City Clerk, City of Centralia, to Shannon Barnaby, [Assistant Attorney\nGeneral], Office of the Attorney General, Public Access Bureau (January 11, 2021).\n\n*Letter from Kim Enke, City Clerk, City of Centralia, to Shannon Barnaby, [Assistant Attorney\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this matter.> If you have\n\nquestions, you may contact me by mail at the Chicago address on the bottom of the first page of\nthis letter.\n\nSHANNON BARNAB\nAssistant Attorney General\nPublic Access Bureau\n\n66131 f 71m proper improper mun\n\nBecause this determination resolves this matter, the Public Access Bureau need not address the\napplicability of sections 7(1)(c), 7(1)(n), and 7(1)(p) of FOIA to the redacted information."}
{"id":964,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-06-18","case_number":null,"request_numbers":["66688"],"title":"City of Joliet improperly redacted factual status updates from police records","filename":"66688, issued June 18, 2024.pdf","rel_path":null,"word_count":1487,"summary":"The PAC reviewed the City of Joliet's redactions of police records and determined that the City failed to justify the use of the attorney-client privilege exemption for factual status updates.","plain_summary":"A reporter requested police records, which the City of Joliet provided with redactions, claiming the information was protected by attorney-client privilege. The Attorney General's office reviewed the records and found that the redacted parts were merely factual status updates, not legal advice. Consequently, the City was instructed to release the unredacted information to the reporter.","holding":"The City of Joliet improperly redacted factual information from police records under the guise of attorney-client privilege.","legal_question":"Whether the City of Joliet properly applied the attorney-client privilege exemption (Section 7(1)(m)) to redact factual status updates from police records.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(m)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(m)"],"public_body":"City of Joliet","requesting_party":"Mr. Felix Sarver (Herald-News)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought police reports that the City partially redacted, citing attorney-client privilege for communications regarding case status updates.","ocr_status":"ok","ocr_quality":93.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/66688%2C%20issued%20June%2018%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","attorney-client privilege","redaction","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"June 18, 2024\n\nVia electronic mail\nMr. Felix Sarver\nStaff Reporter\nHearld News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia. com\n\nVia electronic mail\nMr. Christopher Regis\nInterim Corporation Counsel\nCity of Joliet\n150 West Jefferson\nJoliet,  Illinois 60436\ncregis@joliet. gov\n\nRE:  FOIA Request for Review –  2021 PAC 66688\n\nDear Mr. Sarver and Mr. Regis: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022),  as amended by Public Act 103-069, \neffective January 1, 2024).    For the reasons stated below,  the Public Access Bureau concludes\nthat the Joliet Police Department ( Department)  improperly redacted certain information from a\nreport responsive to Mr. Felix Sarver' s December 30, 2020,  FOIA request.  \n\nOn that date, Mr. Sarver,  on behalf of the Herald- News, submitted a FOIA\n\nrequest to the Department seeking copies of certain police reports.  On January 7, 2021, the\nDepartment denied the request pursuant to section 7(l)(d)( iii) of FOIA ( 5 ILCS\n140/ 7(l)(d)( iii) (West 2018),  as amended by Public Acts 101- 434, effective January 1, 2020; \n101- 452,  effective January 1, 2020;  101- 455, effective August 23, 2019).   Mr. Sarver\n\n\fMr. Felix Sarver\nMr. Christopher Regis\nJune 18, 2024\nPage 2\n\nsubmitted a Request for Review disputing the denial of the request ( 2021 PAC 64433).  On\nJanuary 21, 2021,  the Department withdrew its denial and provided Mr. Sarver with records\nbut redacted certain information pursuant to sections 7(l)(b) and 7(l)(c) of FOIA ( 5 ILCS\n140/ 7(l)(b), ( l)(c) ( West 2018),  as amended by Public Acts 101- 434,  effective January 1, \n2020;  101- 452, effective January 1, 2020;  101- 455,  effective August 23, 2019).   On January\n22, 2024,  Mr. Sarver then submitted this Request for Review ( 2021 PAC 66688)  disputing\nthe redactions on pages 11 and 13 of the records he received. \n\nOn February 10, 2021,  the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Department and asked it to provide this office with an unredacted copy of the\ntwo pages for this office' s confidential review and a detailed explanation of the factual and legal\nbases for the applicability of the 7(1)(b) and 7(1)( c) exemptions.   The Department responded on\nFebruary 19, 2021.    On February 23, 2021,  this office forwarded the written response to Mr. \nSarver;  he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 ( 2006).   A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1.2 (West 2022). \n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"   \nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal information contained within\npublic records,  the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy,  unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\"   \n\nAlthough this office requested in its further inquiry letter an explanation for the\n\napplicability of sections 7(1)(b) and 7(1)( c), the Department provided the below response: \n\nThe redacted pages contain details of conversations which\nwere held between the Corporation Counsel for the City of Joliet\nand certain employees of the City of Joliet.  The content of these\nconversations would not be subject to discovery in litigation,  and\nwere had in preparation for litigation.[ 1].\n\nAssistant Attorney General ( February 19, 2021).  \n\n1Letter from Christopher Regis,  Assistant Corporation Counsel,  City of Joliet,  to Steve Silverman\n\n\fMr. Felix Sarver\nMr. Christopher Regis\nJune 18, 2024\nPage 3\n\nThis office construes the Department' s response as withdrawing the assertion of\nsections 7(1)(b) and 7(1)(c) and instead asserting section 7(1)(m) of FOIA,  which exempts from\ndisclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation,  and materials prepared or compiled by or\nfor a public body in anticipation of a criminal,  civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]{ 2]  \n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m).  See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 ( 1997).   A party\nasserting that a communication to an attorney is protected by the attorney- client privilege must\nshow that: \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it was\nmade to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices;  and ( 3) it remained confidential.\"   Cangelosi v. Capasso,  366 Ill. App. 3d 225, 228 ( 2nd\nDist. 2006).   Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney,  but also to the advice of an attorney to his client.\"   In re Marriage of Granger,  197 Ill. \nApp. 3d 363, 374 ( 1990);  see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998 N.E.2d 1212, \n1221- 22 (2013) (\"[ T]he modern view is that the privilege is a two-way street,  protecting both the\nclient' s communications to the attorney and the attorney' s advice to the client.\").   A public body\nthat withholds records under section 7(1)(m) \" can meet its burden only by providing some\nobjective indicia that the exemption is applicable under the circumstances.\" ( Emphasis in\noriginal.)   Illinois Education Ass'n v. Illinois State Board Of Education,  204 Ill. 2d 456, 470\n2003). \n\nAs set forth above,  it is incumbent on a public body that redacts to provide some\n\nobjective indicia that the elements of the privilege are met.  Here,  the Department' s response is\nlacking sufficient detail to demonstrate that the redacted information is exempt from disclosure\nunder section 7(1)(m).  The City redacted portions of records that document or reference\ndiscussions between City employees and an Assistant Corporation Counsel.   The mere fact that\nmeetings or discussions were held involving the Assistant Corporation Counsel does not\ndemonstrate that the information documented in the report originated in confidence and was for\nthe purpose of seeking or providing legal advice.   Additionally,  the Department' s response is\nlacking basic detail regarding how the communications were held in preparation for litigation.  \n\n25 ILCS 140/ 7(l)(m) ( West 2018),  as amended by Public Acts 101-434, effective January I, \n\n2020;  101- 452,  effective January 1, 2020;  101-455, effective August 23, 2019).  \n\n\fr. Felix Sarver\nMr. Christopher Regis\nJune 18, 2024\nPage 4\n\nMoreover,  this office' s confidential review of the unredacted pages show that the\ninformation is primarily a factual narrative as opposed to legal advice.   Applying Illinois law, a\nfederal district court concluded in Dawson v. New York Life Ins. Co., 901 F. Supp.  1362,  1367\nN.D. Ill. 1995),  that facts communicated by a corporation' s attorneys to the corporation' s\nemployees were not protected by the attorney- client privilege because the attorneys were acting\nmore as ' courier[ s]  of factual information,'  rather than ' legal advisers.'\"   The court further\nexplained that \" common sense tells us that there is a difference between merely providing legal\ninformation and providing legal ' advice.'   Here,  the attorneys were simply called upon to provide\nfactual information to the * * *  employees at issue.  The attorneys'  purpose was not to instruct the\nemployees on the proper use of this information.\"   Dawson,  901 F. Supp.  at 1367;  see also\nDigital Vending Services International,  Inc. v. University of Phoenix, Inc., No. 2:09-CV-555, \n2013 WL 1560212,  at * 6 (E.D. Va., 2013) ( e-mails discussing status of preparation for oral\narguments in federal court are \" simply status updates and no legal advice is given by counsel. \nTherefore,  these communications are not privileged.\");  Elder Care Providers of Indiana, Inc. v. \nHome Instead,  Inc., No. 114-CV-01894SEBMJD,  2016 WL 881176,  at * 4 (S.D. Ind. 2016); ( e-\nmail asking an attorney how to respond to a request for a status update is not privileged because\nit did not seek legal advice). \n\nBecause the redacted information provides only factual information rather than\n\nprivileged communications related to legal advice,  this office concludes that the City has not\nsustained its burden of demonstrating that the redactions were permissible under section 7(1)(m) \nof FOIA.  This office requests that the City disclose those portions of the records to Mr. Sarver.  \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   If you have any questions,  you may contact me at\n312)  814 3180 or Matthew. Rogina@ilag. gov.  This file is closed. \n\nVery truly yours, \n\nMATTHEW C. ROGINA\nSenior Assistant Attorney Geneal\nPublic Access Bureau\n\n66688 f 71m improper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police reports redacted for attorney-client privilege","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66688/","full_text":"June 18, 2024\n\nVia electronic mail\nMr. Felix Sarver\nStaff Reporter\nHearld News\n[street address redacted for site publication -- see original PDF]\nfsarver@shawmedia. com\n\nVia electronic mail\nMr. Christopher Regis\nInterim Corporation Counsel\nCity of Joliet\n150 West Jefferson\nJoliet, Illinois 60436\ncregis@joliet. gov\n\nRE: FOIA Request for Review – 2021 PAC 66688\n\nDear Mr. Sarver and Mr. Regis: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022), as amended by Public Act 103-069, \neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\nthat the Joliet Police Department (Department) improperly redacted certain information from a\nreport responsive to Mr. Felix Sarver's December 30, 2020, FOIA request. \n\nOn that date, Mr. Sarver, on behalf of the Herald- News, submitted a FOIA\n\nrequest to the Department seeking copies of certain police reports. On January 7, 2021, the\nDepartment denied the request pursuant to section 7(l)(d)(iii) of FOIA (5 ILCS\n140/ 7(l)(d)(iii) (West 2018), as amended by Public Acts 101- 434, effective January 1, 2020; \n\nsubmitted a Request for Review disputing the denial of the request (2021 PAC 64433). On\nJanuary 21, 2021, the Department withdrew its denial and provided Mr. Sarver with records\nbut redacted certain information pursuant to sections 7(l)(b) and 7(l)(c) of FOIA (5 ILCS\n140/ 7(l)(b), (l)(c) (West 2018), as amended by Public Acts 101- 434, effective January 1, \n2020; 101- 452, effective January 1, 2020; 101- 455, effective August 23, 2019). On January\n22, 2024, Mr. Sarver then submitted this Request for Review (2021 PAC 66688) disputing\nthe redactions on pages 11 and 13 of the records he received. \n\nOn February 10, 2021, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Department and asked it to provide this office with an unredacted copy of the\ntwo pages for this office's confidential review and a detailed explanation of the factual and legal\nbases for the applicability of the 7(1)(b) and 7(1)(c) exemptions. The Department responded on\nFebruary 19, 2021. On February 23, 2021, this office forwarded the written response to Mr. \nSarver; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2022). \n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal information contained within\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\" \n\nAlthough this office requested in its further inquiry letter an explanation for the\n\napplicability of sections 7(1)(b) and 7(1)(c), the Department provided the below response: \n\nThe redacted pages contain details of conversations which\nwere held between the Corporation Counsel for the City of Joliet\nand certain employees of the City of Joliet. The content of these\nconversations would not be subject to discovery in litigation, and\nwere had in preparation for litigation.[ 1].\n\nAssistant Attorney General (February 19, 2021). \n\n1 Letter from Christopher Regis, Assistant Corporation Counsel, City of Joliet, to Steve Silverman\n\nThis office construes the Department's response as withdrawing the assertion of\nsections 7(1)(b) and 7(1)(c) and instead asserting section 7(1)(m) of FOIA, which exempts from\ndisclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]{ 2] \n\nCommunications protected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m). See People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1997). A party\nasserting that a communication to an attorney is protected by the attorney- client privilege must\nshow that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it was\nmade to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2nd\nDist. 2006). Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 Ill. \nApp. 3d 363, 374 (1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998 N.E.2d 1212, \n1221- 22 (2013) (\"[ T]he modern view is that the privilege is a two-way street, protecting both the\nclient's communications to the attorney and the attorney's advice to the client.\"). A public body\nthat withholds records under section 7(1)(m) \" can meet its burden only by providing some\nobjective indicia that the exemption is applicable under the circumstances.\" (Emphasis in\noriginal.) Illinois Education Ass'n v. Illinois State Board Of Education, 204 Ill. 2d 456, 470\n2003). \n\nAs set forth above, it is incumbent on a public body that redacts to provide some\n\nobjective indicia that the elements of the privilege are met. Here, the Department's response is\nlacking sufficient detail to demonstrate that the redacted information is exempt from disclosure\nunder section 7(1)(m). The City redacted portions of records that document or reference\ndiscussions between City employees and an Assistant Corporation Counsel. The mere fact that\nmeetings or discussions were held involving the Assistant Corporation Counsel does not\ndemonstrate that the information documented in the report originated in confidence and was for\nthe purpose of seeking or providing legal advice. Additionally, the Department's response is\nlacking basic detail regarding how the communications were held in preparation for litigation. \n\nMoreover, this office's confidential review of the unredacted pages show that the\ninformation is primarily a factual narrative as opposed to legal advice. Applying Illinois law, a\nfederal district court concluded in Dawson v. New York Life Ins. Co., 901 F. Supp. 1362, 1367\nN.D. Ill. 1995), that facts communicated by a corporation's attorneys to the corporation's\nemployees were not protected by the attorney- client privilege because the attorneys were acting\nmore as ' courier[ s] of factual information,' rather than ' legal advisers.'\" The court further\nexplained that \" common sense tells us that there is a difference between merely providing legal\ninformation and providing legal ' advice.' Here, the attorneys were simply called upon to provide\nfactual information to the * * * employees at issue. The attorneys' purpose was not to instruct the\nemployees on the proper use of this information.\" Dawson, 901 F. Supp. at 1367; see also\nDigital Vending Services International, Inc. v. University of Phoenix, Inc., No. 2:09-CV-555, \n2013 WL 1560212, at * 6 (E.D. Va., 2013) (e-mails discussing status of preparation for oral\narguments in federal court are \" simply status updates and no legal advice is given by counsel. \nTherefore, these communications are not privileged.\"); Elder Care Providers of Indiana, Inc. v. \nHome Instead, Inc., No. 114-CV-01894SEBMJD, 2016 WL 881176, at * 4 (S.D. Ind. 2016); (e-\nmail asking an attorney how to respond to a request for a status update is not privileged because\nit did not seek legal advice). \n\nBecause the redacted information provides only factual information rather than\n\nprivileged communications related to legal advice, this office concludes that the City has not\nsustained its burden of demonstrating that the redactions were permissible under section 7(1)(m) \nof FOIA. This office requests that the City disclose those portions of the records to Mr. Sarver. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n312) 814 3180 or Matthew. Rogina@ilag. gov. This file is closed. \n\nVery truly yours, \n\nMATTHEW C. ROGINA\nSenior Assistant Attorney Geneal\nPublic Access Bureau\n\n66688 f 71m improper pd"}
{"id":965,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-02-10","case_number":null,"request_numbers":["66839"],"title":"Personal political Facebook page not a public record under FOIA, Will County","filename":"66839, issued February 10, 2021.pdf","rel_path":null,"word_count":1105,"summary":"The requester sought social media posts, comments, and a list of blocked users from a Will County Board member's Facebook page, but the PAC determined the records were not public records subject to FOIA.","plain_summary":"A citizen requested social media data from a Will County Board member's Facebook page, believing it to be a public record. The Attorney General's office determined that because the page is used for personal political purposes rather than official County business, it is not subject to FOIA. Consequently, the office closed the case without requiring the County to provide the records.","holding":"The PAC concluded that no further action was warranted because the Facebook page in question is a personal political page rather than a record maintained by the County.","legal_question":"Whether a social media page maintained by a public official for political purposes constitutes a 'public record' under FOIA.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Will County","requesting_party":"FOICH.org","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The requester sought access to content and administrative settings from a public official's personal political Facebook page.","ocr_status":"ok","ocr_quality":94.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/66839%2C%20issued%20February%2010%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["social media","public record","Facebook","public official"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 10,  2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request for Review — 2021 PAC 66839\n\nDear\n\nThis determination letter is issued pursuant\n\nto section 9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2018)).  For the reasons that follow,  the\n\nPublic Access Bureau concludes that lio further action is warranted in this matter. \n\nOn January 28,  2021,  you submitted a FOIA request\n\nto Will County ( County) \n\nstating: \n\nThis request will be for the documents recorded by Will\n\nCounty Board member Debbie Kraulidis,  on her designated\nfacebook account titled \"Debbie Kraulidis for Will County Board\n13\".  The title of this page communicates intent that it is to be used\n\nfor communication regarding the Will county board seat for district\n13.( 1) \n\nYou specified that you were seeking posts made by the account and \" associated comments by all\nmembers of the public,  including all deleted comments,  posted between December 7th,  2020 and\nJanuary 28th 2021 on the\"  page. 2 You additionally requested a \"[ c] opy/ screenshot of account\nsettings showing users who have been blocked from posting or communicating on the Facebook\npage * * * \n\nduring the same timeline. i3 On February 2,  2021,  the FOIA officer for the Will\n\nE- mail from\n\nFOICH.org, to County Board ( January 28,  2021). \n\n2E -mail from\n\nFOICH. org,  to County Board ( January 28,  2021). \n\n3E -mail from\n\nFOICH. org,  to County Board ( January 28,  2021). \n\n500 South Second Street,  Springfield, \n\nIllinois 62701 • (\n\n217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fFebruary 10,  2021\nPage 2\n\nCounty Board ( Board)  responded that the Board possessed no responsive records,  as any such\nrecords are not under its control and are not public records. \n\nOn February 3,  2021,  you submitted the above -referenced Request\ncontesting that response.  You argue that two binding opinions issued by this office— Ill. Att'y\nGen.  Pub.  Acc.  Op.  No.  11- 006,  issued November 15,  2011,  and I11.  Att' y Gen.  Pub.  Acc.  Op. \nNo.  16- 006,  issued August 9,  2016— signify that the records you requested are public records\nsubject\n\nto disclosure pursuant\n\nfor Review\n\nto FOIA. \n\nFOIA is intended to ensure public access to \" full and complete information\n\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees consistent with the terms of this Act.\"  5 ILCS 140/ 1\n\nWest 2018).  FOIA requires that \"[ e] ach public body shall make available to any person for\ninspection or copying all public records[.]\" ( Emphasis added.)  5 ILCS 140/ 3( a) ( West 2018), \nas amended by Public Act 101- 081,  effective July 12,  2019.  Section 2( c)  of FOIA ( 5 ILCS\n140/ 2( c) ( West 2018))  defines \" public records\"  as \" all records * * *  pertaining to the\ntransaction of public business,  regardless of physical\nprepared by or for, or having been or being used by,  received by,  in the possession of, or\nunder the control of any public body.\" ( Emphasis added.) \n\nform or characteristics,  having been\n\nYour FOIA request concerns the Facebook page of a political candidate for the\n\nBoard, who was elected and sworn in on December 7,  2020.  There is no indication from the\n\nFacebook page4 or from your Request for Review that the page pertains to the transaction of the\nCounty' s public business,  as opposed to Ms. Kraulidis'  political campaign operation.  In the\nbinding opinions you cite, this office explained that it is the content of an electronic\ncommunication,  rather than whether a public body has physical custody of the device or direct\ncontrol of the method used to send or receive it,  that governs whether the message is a public\nrecord subject to disclosure pursuant to FOIA.  111.  Att'y Gen.  Pub.  Acc.  Op.  No.  11- 006,  at 5; 5\n111.  Att' y Gen.  Pub.  Acc.  Op.  No.  16- 006,  at 7.  Here,  there is no basis from which this office\ncould conclude that the records you seek meet the threshold requirement of \"pertaining to the\ntransaction of public business,\"  nor that any such records were prepared by,  prepared for,  used\nby, received by, possessed by, or controlled by the County.  In particular, because the Facebook\n\n4Debbie Kraulidis For Will County Board 13,  Facebook,  https:// www. facebook. com/ Debbie- \n\nKraulidis- For- Will- County- Board- 13- 101866541353288 ( last visited February 5,  2021). \n\n5An action for administrative review was filed with respect to this binding opinion,  culminating in\n\nthe Illinois Appellate Court decision City ofChampaign v.  Madigan,  2013 IL App ( 4th)  120662, ¶ 38,  992 N.E. 2d\n629,  638 ( 2013) (\"[ T] o qualify as a ' public record' under FOIA, a communication must ( 1) ' pertain[ ]  to the\ntransaction of public business'  and have either been ( 2)  prepared by, ( 3)  prepared for, (4)  used by ( 5)  received by, ( 6) \npossessed by,  or ( 7)  controlled by a public body.\"). \n\n\fFebruary 10,  2021\nPage 3\n\npage is a political page rather than a page maintained by the County,  any list of blocked accounts\nis not a public record subject\ndetermined that no further action is warranted in this matter. 6\n\nto FOIA.  Accordingly,  this office has\n\nto disclosure pursuant\n\nThis letter serves to close this matter.  If you have any questions,  please contact\n\nme at jjones@atg. state. il. us. \n\nVery truly yours, \n\nJOSHUA M.  JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n66839 f no fi war co\n\ncc: \n\nVia electronic mail\n\nMs.  Beth Adams\n\nOperations Manager,  FOIA Officer\n\nWill County Board\n302 North Chicago Street\n\nJoliet,  Illinois 60432\n\nbadams@willcountyillinois.\n\ncom\n\n6This office notes that the Public Access Counselor' s authority to resolve disputes is limited to\nalleged violations of FOIA and the Open Meetings Act ( OMA) ( 5 ILCS 120/ 1 et seg. ( West 2018)).  See 15 ILCS\n205/ 7( c)( 3) ( West 2018).  To the extent this Request\nability to block a constituent on social media,  that issue is not governed by FOIA or OMA and therefore is not\n\nfor Review raises a legal question concerning a public official' s\n\nsubject\n\nto review by this office. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A public official's personal political Facebook page","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-66839/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nFebruary 10, 2021\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2021 PAC 66839\n\nDear\n\nThis determination letter is issued pursuant\n\nto section 9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2018)). For the reasons that follow, the\n\nPublic Access Bureau concludes that lio further action is warranted in this matter. \n\nOn January 28, 2021, you submitted a FOIA request\n\nto Will County (County) \n\nstating: \n\nThis request will be for the documents recorded by Will\n\nCounty Board member Debbie Kraulidis, on her designated\nfacebook account titled \"Debbie Kraulidis for Will County Board\n13\". The title of this page communicates intent that it is to be used\n\nfor communication regarding the Will county board seat for district\n13.(1) \n\nYou specified that you were seeking posts made by the account and \" associated comments by all\nmembers of the public, including all deleted comments, posted between December 7th, 2020 and\nJanuary 28th 2021 on the\" page. 2 You additionally requested a \"[ c] opy/ screenshot of account\nsettings showing users who have been blocked from posting or communicating on the Facebook\npage * * * \n\nduring the same timeline. i3 On February 2, 2021, the FOIA officer for the Will\n\nE- mail from\n\nFOICH.org, to County Board (January 28, 2021). \n\n2E -mail from\n\nFOICH. org, to County Board (January 28, 2021). \n\n3E -mail from\n\nFOICH. org, to County Board (January 28, 2021). \n\nCounty Board (Board) responded that the Board possessed no responsive records, as any such\nrecords are not under its control and are not public records. \n\nOn February 3, 2021, you submitted the above -referenced Request\ncontesting that response. You argue that two binding opinions issued by this office— Ill. Att'y\nGen. Pub. Acc. Op. No. 11- 006, issued November 15, 2011, and I11. Att' y Gen. Pub. Acc. Op. \nNo. 16- 006, issued August 9, 2016— signify that the records you requested are public records\nsubject\n\nto disclosure pursuant\n\nfor Review\n\nto FOIA. \n\nFOIA is intended to ensure public access to \" full and complete information\n\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees consistent with the terms of this Act.\" 5 ILCS 140/ 1\n\nWest 2018). FOIA requires that \"[ e] ach public body shall make available to any person for\ninspection or copying all public records[.]\" (Emphasis added.) 5 ILCS 140/ 3(a) (West 2018), \nas amended by Public Act 101- 081, effective July 12, 2019. Section 2(c) of FOIA (5 ILCS\n140/ 2(c) (West 2018)) defines \" public records\" as \" all records * * * pertaining to the\ntransaction of public business, regardless of physical\nprepared by or for, or having been or being used by, received by, in the possession of, or\nunder the control of any public body.\" (Emphasis added.) \n\nform or characteristics, having been\n\nYour FOIA request concerns the Facebook page of a political candidate for the\n\nBoard, who was elected and sworn in on December 7, 2020. There is no indication from the\n\nFacebook page4 or from your Request for Review that the page pertains to the transaction of the\nCounty's public business, as opposed to Ms. Kraulidis' political campaign operation. In the\nbinding opinions you cite, this office explained that it is the content of an electronic\ncommunication, rather than whether a public body has physical custody of the device or direct\ncontrol of the method used to send or receive it, that governs whether the message is a public\nrecord subject to disclosure pursuant to FOIA. 111. Att'y Gen. Pub. Acc. Op. No. 11- 006, at 5; 5\n111. Att' y Gen. Pub. Acc. Op. No. 16- 006, at 7. Here, there is no basis from which this office\ncould conclude that the records you seek meet the threshold requirement of \"pertaining to the\ntransaction of public business,\" nor that any such records were prepared by, prepared for, used\nby, received by, possessed by, or controlled by the County. In particular, because the Facebook\n\n4 Debbie Kraulidis For Will County Board 13, Facebook, https:// www. facebook. com/ Debbie- \n\nKraulidis- For- Will- County- Board- 13- 101866541353288 (last visited February 5, 2021). \n\n5 An action for administrative review was filed with respect to this binding opinion, culminating in\n\nthe Illinois Appellate Court decision City ofChampaign v. Madigan, 2013 IL App (4th) 120662, ¶ 38, 992 N.E. 2d\n629, 638 (2013) (\"[ T] o qualify as a ' public record' under FOIA, a communication must (1) ' pertain[ ] to the\ntransaction of public business' and have either been (2) prepared by, (3) prepared for, (4) used by (5) received by, (6) \n\npage is a political page rather than a page maintained by the County, any list of blocked accounts\nis not a public record subject\ndetermined that no further action is warranted in this matter. 6\n\nto FOIA. Accordingly, this office has\n\nto disclosure pursuant\n\nThis letter serves to close this matter. If you have any questions, please contact\n\nme at jjones@atg. state. il. us. \n\nVery truly yours, \n\nJOSHUA M. JONES\n\nDeputy Bureau Chief\nPublic Access Bureau\n\n66839 f no fi war co\n\ncc: \n\nVia electronic mail\n\nMs. Beth Adams\n\nOperations Manager, FOIA Officer\n\nWill County Board\n302 North Chicago Street\n\nJoliet, Illinois 60432\n\nbadams@willcountyillinois.\n\ncom\n\n6 This office notes that the Public Access Counselor's authority to resolve disputes is limited to\nalleged violations of FOIA and the Open Meetings Act (OMA) (5 ILCS 120/ 1 et seg. (West 2018)). See 15 ILCS\n205/ 7(c)(3) (West 2018). To the extent this Request\nability to block a constituent on social media, that issue is not governed by FOIA or OMA and therefore is not\n\nfor Review raises a legal question concerning a public official's\n\nsubject\n\nto review by this office."}
{"id":966,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2021-12-02","case_number":null,"request_numbers":["68242"],"title":"Oakton Community College partially violated FOIA in redacting disciplinary reports under 7(1)(b) and 7(1)(c)","filename":"68242, issued December 2, 2021.pdf","rel_path":null,"word_count":2799,"summary":"The requester sought unredacted RADAR reports and identifying information regarding complaints filed against them at Oakton Community College, and the PAC determined the College properly withheld certain private and personal information while failing to justify other redactions.","plain_summary":"An individual requested unredacted RADAR reports and related records from Oakton Community College. The Illinois Attorney General's Public Access Bureau concluded that the college did not improperly withhold information, except for certain discrete details. The decision did not specify what those details were or order any specific release.","holding":"The Public Access Bureau concluded that Oakton Community College did not improperly withhold information responsive to the FOIA request, with the exception of certain discrete information.","legal_question":"Whether Oakton Community College properly applied FOIA exemptions 7(1)(b) and 7(1)(c) to redact private and personal information from disciplinary reports.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Oakton Community College","requesting_party":null,"pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request concerned disciplinary or complaint-based 'RADAR' reports generated by a community college regarding a student or employee.","ocr_status":"ok","ocr_quality":94.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Obligation-to-disclose-non-exempt-portions-of-records-that-contain-information-subject-to-redaction/68242%2C%20issued%20December%202%2C%202021.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["disciplinary records","private information","redaction","student records"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 2, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Michelle L. Weber\nRobbins Schwartz\n55 West Monroe, Suite 800\nChicago,  Illinois 60603\nmweber@robbins-schwartz.com\n\nRE:  Request for Review – 2021 PAC 68242\n\nDear\n\nand Ms. Weber: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow,  the\nPublic Access Bureau concludes that Oakton Community College (College) did not improperly\nwithhold information responsive to\nAugust 16,  2021 FOIA request,  with the\nexception of certain discrete information. \n\nOn that date, \n\nsubmitted a FOIA request to the College seeking copies\n\nof: \n\nCollege. \n\n1. Any RADAR report( s)[ 1]  which mention me,  made/ filed\nduring 2021. Note: this request is for full & unredacted RADAR\nreports\n\n2. The name(s) of any and all complainants (or reporters if\n\noakton prefers that title)  and/ or person( s)  attached to or who\n\n1A RADAR report is generated when a complaint is made against a student or employee of the\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 2\n\ncontributed to such reports, alerts, advisements, and/or complaints\nof any kind which involve me\n\n3. The phone number, and/or email address(s) which\ncontributed to such reports,  alerts,  advisements,  and/ or complaints\nof any kind which involve me\n\n4. The call recording/ footage,  original email( s)  and/ or\nrecorded security camera video and audio footage of such a person\nwho came into the oakton community college police station\nphysically to make any such report(s)/ complaint(s).[ 2] \n\nOn August 30, 2021, the College denied his request in its entirety pursuant to\n\nsections 7(1)( b),  7(1)( c), and 7(1)( d)( iv) of FOIA. 3 On October 29,  2021, \na Request for Review contesting the denial.  He explained that he was most interested in any\nRADAR reports responsive to part one of his request,  stating:  \" I understand names and other\npersonal identifying information may be redacted i.e. there may be small redactions etc; I am\ninterested in the content of the reoprt( s)/ complaint( s) [ sic].\" 4 He explained what he believed to\nbe the contents of the reports and his personal interest in obtaining them as follows: \n\nsubmitted\n\nThe first allegation was that I, \n\nmight, \nallegedly, come to Oakton Community College with various\nfirearms/ other lethal weapons and shoot,  maim,  and/ or kill\nmembers of the Oakton Community College staff, faculty, and/or\nstudents.  Whereas,  the second allegation was that that I, \n\nmight, allegedly, engage in other actions which might\nharm my neighbors who live in my condominium building.  As\nthese are disperate [sic] complaints, neither of which was/is true\nand neither of which was based upon any real facts,  evidence,  nor\nany information beyond one person's own musings/ideations, I\nhave a right to understand exactly what was filed against me as\nwell as any potential threats or perceived threats against my\ncommunity,  school,  and/ or workplace at large.[ 5] \n\n2E- mail from\n\nto Edwin, Miny, FOIA Team, and other(s)? ( August 16, 2021). \n\nJune 25, 2021. \n\n35 ILCS 140/7(1)(b), ( 1)(c), ( 1)(d)(iv) (West 2020),  as amended by Public Act 102-038, effective\n\nState of Illinois (October 29, 2021). \n\n4E- mail from\n\nto Public Access Counselor, Office of the Attorney General, of the\n\nState of Illinois (October 29, 2021).  \n\n5E- mail from\n\nto Public Access Counselor, Office of the Attorney General, of the\n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 3\n\nOn November 3, 2021, this office forwarded a copy of\n\nRequest for\n\nReview to the College and asked it to furnish unredacted copies of the responsive records for our\nconfidential review, together with a detailed explanation of the factual and legal bases for the\nasserted exemptions.   On November 12,  2021,  this office received those materials,  including two\nversions of the College's written response:  a complete version for this office's confidential\nreview and a redacted version for this office to forward to\nhe submitted a reply. \n\n6 On November 30, 2021, \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"  5 ILCS\n140/ 1.2 (West 2020).   The exemptions from disclosure are to be narrowly construed.   Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).   \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"  Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\"   Section 7(1)( c) also contains a relevant exception providing that \"[ t]he\ndisclosure of information that bears on the public duties of public employees and officials shall\nnot be considered an invasion of personal privacy.\"   \n\nA public body' s assertion that the release of information would constitute a clearly\n\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis.  Chicago\nJourneymen Plumbers'  Local Union 130 v. Department of Public Health,  327 Ill. App.  3d 192, \n196 (1st Dist. 2001).  The phrase \" clearly unwarranted invasion of personal privacy\" evinces a\nstrict standard to claim the exemption,  and the burden is on the public body having charge of the\nrecord to prove that standard has been met.  Schessler v. Department of Conservation, 256 Ill. \nApp.  3d 198,  202 ( 4th Dist.  1994).   \n\nAdditionally,  section 7(1)( d)( iv) of FOIA exempts from disclosure: \n\n65 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 4\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings,  and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would:  \n\nunavoidably disclose the identity of a confidential\n\niv) \nsource, confidential information furnished only by the\nconfidential source,  or persons who file complaints with or\nprovide information to administrative, investigative, law\nenforcement,  or penal agencies[.] \n\nThis provision allows police departments to protect the anonymity of both confidential\ninformants and other persons who provide them with information.  See, e.g., Chicago Alliance\nfor Neighborhood Safety v. Town of Chicago,  348 Ill. App.  3d 188,  200- 01 ( 1st Dist.  2004) \nnames and addresses of beat meeting participants properly redacted because they provided\ninformation to police department).   Witness statements may be withheld in their entireties only if\ndisclosure of the contents \"would necessarily result in the disclosure of the identity of that\nsource\"  of information and, therefore, \" redaction of the [records]  cannot be meaningfully\naccomplished.\"   Copley Press,  Inc. v. City of Springfield,  266 Ill. App.  3d 421,  426 ( 4th Dist. \n1994). \n\nIn its non-confidential response to this office, the College acknowledged that it\n\nwithheld a RADAR Behavior Incident report and closely similar police report, \" which pertain to\nallegations against the requestor that he is in possession of firearms and made threatening\nremarks against members of the College and individuals in his condominium association.\" 7 The\nCollege asserted that it \"withheld the records on the grounds that a majority of the information\ncontained within the records is exempt from disclosure pursuant to FOIA.\" 8  ( Emphasis added.)  \nThe College argued that any information that directly or indirectly identifies a person who\nprovided information to the police in this matter is exempt from disclosure under section\n7(1)(d)(iv), and that the narrative statement in the police report and RADAR report \"contains\n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 1. \n\n7Letter from Michelle L. Weber,  Robbins Schwartz,  to Joshua M. Jones,  Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 2.  \n\n8Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 5\n\nspecific information and details which, if disclosed, would likely reveal [redacted].\" 9 The\nCollege argued that the narrative is therefore exempt from disclosure in its entirety.   In addition, \nthe College argued that information that would identify individuals involved in the matter is\nexempt under section 7(1)( c) because \" individuals who report information to the College and its\nlaw enforcement officials regarding threats of safety have a reasonable expectation that their\nidentities will not be disclosed,  particularly to the source of the threat.\" 10 Further,  the College\nargued that\ninterest in disclosure does not outweigh the individuals' privacy\ninterests because he \" was properly notified of the allegations against him and afforded an\nopportunity to respond to those allegations[,]\"  and the College has taken no adverse action\nagainst him. 11\n\nIn his reply, \n\nargued that he \" would not be able to link any person( s)  to\n\nthese reports based upon the claims made within the narrative statement(s) and/or the details of\nthese reports,  some of which,  again,  could also be redacted if that were truly necessary.\" 12 He\nstated that the College's response to this office's letter \"was the first time it was ever stated that\nthere had been allegations that I had allegedly made threatening remarks against both members\nof the college and individuals in my condominium association[,]\"  and he argued that \"[ t]his\nclaim was not based upon any real/ accurate information and was made solely to induce police\naction as well as actions of the college against me.\" 13 He argued that \"[ a]s these false allegations\nmay be used against me in litigation between myself and my condominium association, I have a\nlegitimate interest in the content of these reports ( even if redacted),  even if not in the identity of\nthe reporter(s),  which outweighs the claim of privacy of one or some who filed false police\nreport( s).\" 14\n\nThis office' s review of the responsive records confirmed that the narrative largely\nconsists of information that falls within the scope of sections 7(1)(c) and 7(1)(d)(iv) of FOIA.  \nThe name and employment position of a person who provided information directly to law\n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 3.  \n\n9Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 4.  \n\n10Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General,  Public Access Bureau ( November 12, 2021),  at 4.  \n\n11Letter from Michelle L. Weber,  Robbins Schwartz,  to Joshua M. Jones,  Deputy Bureau Chief, \n\n12E- mail from\n\nRequester) to Joshua Jones (November 30, 2021). \n\n13E- mail from\n\nRequester) to Joshua Jones (November 30, 2021).  \n\n14E- mail from\n\nRequester) to Joshua Jones (November 30, 2021).   \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 6\n\nenforcement is exempt from disclosure under the plain language of section 7(1)(d)(iv).  \nAdditionally,  the name of the other party and the description of the information provided by that\nparty are exempt from disclosure under section 7(1)(c) because it would objectionable to a\nreasonable person to disclose the information to the subject of the report,  and the person' s right to\nprivacy outweighs any legitimate public interest in obtaining the information.  Although\ninterest in learning the contents of the allegedly false\n\nexpressed a clear personal\n\nstatements made about him, the public interest favors protecting the confidentiality of the person\nunder the circumstance of an alleged threat to public safety.   Gabrielli v. U.S.  Dep' t of Justice, \n594 F. Supp. 309, 312-13 (N.D.N.Y. 1984) (identity of individual who filed unfounded\ncomplaint exempt from disclosure under the version of section 7(1)( c)  in Federal FOIA15\nbecause \"[ p]ersons who suspect criminal activity, but who have no hard and fast proof, could\nwell be deterred from providing to law enforcement authorities what may prove to be vital\ninformation for fear that their names would be released to the parties against whom they\nprovided information if their suspicions ultimately prove groundless.\").  \ndisclosing the substance of the statements would be reasonably likely to identify the person who\nmade them.   Although\nidentity, he is not well-positioned to make that judgment without the ability to review the\ncontents of the remarks.   \n\nprofessed that he would not be able to discern the person' s\n\nIt is apparent\n\nthat\n\nThe RADAR report and police report also, however, contain certain discrete\n\ninformation that falls outside the scope of the section 7(1)( c) and section 7(1)( d)( iv) exemptions.  \nThe records contain limited information that bears upon the duties of public employees.  There is\na compelling public interest in disclosure of records that shed light on the manner in which law\nenforcement officials perform their public duties.  Ill. Att'y Gen. Pub. Acc. Op. No. 12-006, \nissued March 16,  2012,  at 7.  While the College expressly argued that \" a majority of the\ninformation\" in the reports is exempt from disclosure pursuant to FOIA, section 7(1) of FOIA (5\nILCS 140/ 7(1) ( West 2020),  as amended by Public Act 102- 038,  effective June 25, 2021) \nprovides: \n\nWhen a request is made to inspect or copy a public record\nthat contains information that is exempt from disclosure under this\nSection, but also contains information that is not exempt from\ndisclosure,  the public body may elect to redact the information that\nis exempt. The public body shall make the remaining information\navailable for inspection and copying.  ( Emphasis added.) \n\n15Exemption 7(c) of Federal FOIA (5 U.S.C. § 552(b)(7)(C)  permits the withholding of\n\nrecords or information compiled for law enforcement purposes, but only to the extent that the production of such\nlaw enforcement records or information * * *  could reasonably be expected to constitute an unwarranted invasion of\npersonal privacy[.]\"  \n\n\fMs. Michelle L. Weber\nDecember 2, 2021\nPage 7\n\nIt is true that FOIA does not mandate \" the separation of disjointed words, phrases, or even\nsentences which taken separately or together have minimal or no information content.\"   Mead\nData Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 n. 55 (D.C. Cir. 1977).  That is\nnot the case here,  however,  because the records contain information about law enforcement\nactivities and context, albeit limited in nature.  Therefore, the College did not sustain its burden\nof proving by clear and convincing evidence that the records are exempt from disclosure in their\nentireties.    \n\nIn accordance with the conclusions set out above, this office requests that the\n\nwith copies of records,  subject to the redaction of the information\n\nCollege provide\ndescribed above and any other information that falls within the plain language of the definition\nof \" private information\"  in section 2(c- 5) of FOIA16 pursuant to section 7(1)( b). 17 Under\nseparate cover, this office will provide the College with copies of the records with the\ninformation this office has identified as exempt highlighted. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n68242 f 71b proper 71c proper improper 71div proper improper co\n\n16Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020))  defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers,  and personal email addresses.  Private\ninformation also includes home address and personal license plates,  except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\n17Section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2020), as amended by Public Act 102-038, \n\neffective June 25, 2021) exempts from disclosure \"[ p]rivate information, unless disclosure is required by another\nprovision of this Act, a State or federal law or a court order.\"   \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary reports from a community college","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68242/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 2, 2021\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Michelle L. Weber\nRobbins Schwartz\n55 West Monroe, Suite 800\nChicago, Illinois 60603\nmweber@robbins-schwartz.com\n\nRE: Request for Review – 2021 PAC 68242\n\nDear\n\nand Ms. Weber: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that Oakton Community College (College) did not improperly\nwithhold information responsive to\nAugust 16, 2021 FOIA request, with the\nexception of certain discrete information. \n\nOn that date, \n\nsubmitted a FOIA request to the College seeking copies\n\nof: \n\nCollege. \n\n1. Any RADAR report(s)[ 1] which mention me, made/ filed\nduring 2021. Note: this request is for full & unredacted RADAR\nreports\n\n2. The name(s) of any and all complainants (or reporters if\n\noakton prefers that title) and/ or person(s) attached to or who\n\n1A RADAR report is generated when a complaint is made against a student or employee of the\n\ncontributed to such reports, alerts, advisements, and/or complaints\nof any kind which involve me\n\n3. The phone number, and/or email address(s) which\ncontributed to such reports, alerts, advisements, and/ or complaints\nof any kind which involve me\n\n4. The call recording/ footage, original email(s) and/ or\nrecorded security camera video and audio footage of such a person\nwho came into the oakton community college police station\nphysically to make any such report(s)/ complaint(s).[ 2] \n\nOn August 30, 2021, the College denied his request in its entirety pursuant to\n\nsections 7(1)(b), 7(1)(c), and 7(1)(d)(iv) of FOIA. 3 On October 29, 2021, \na Request for Review contesting the denial. He explained that he was most interested in any\nRADAR reports responsive to part one of his request, stating: \" I understand names and other\npersonal identifying information may be redacted i.e. there may be small redactions etc; I am\ninterested in the content of the reoprt(s)/ complaint(s) [ sic].\" 4 He explained what he believed to\nbe the contents of the reports and his personal interest in obtaining them as follows: \n\nsubmitted\n\nThe first allegation was that I, \n\nmight, \nallegedly, come to Oakton Community College with various\nfirearms/ other lethal weapons and shoot, maim, and/ or kill\nmembers of the Oakton Community College staff, faculty, and/or\nstudents. Whereas, the second allegation was that that I, \n\nmight, allegedly, engage in other actions which might\nharm my neighbors who live in my condominium building. As\nthese are disperate [sic] complaints, neither of which was/is true\nand neither of which was based upon any real facts, evidence, nor\nany information beyond one person's own musings/ideations, I\nhave a right to understand exactly what was filed against me as\nwell as any potential threats or perceived threats against my\ncommunity, school, and/ or workplace at large.[ 5] \n\n2E- mail from\n\nto Edwin, Miny, FOIA Team, and other(s)? (August 16, 2021). \n\nJune 25, 2021. \n\n35 ILCS 140/7(1)(b), (1)(c), (1)(d)(iv) (West 2020), as amended by Public Act 102-038, effective\n\nState of Illinois (October 29, 2021). \n\nOn November 3, 2021, this office forwarded a copy of\n\nRequest for\n\nReview to the College and asked it to furnish unredacted copies of the responsive records for our\nconfidential review, together with a detailed explanation of the factual and legal bases for the\nasserted exemptions. On November 12, 2021, this office received those materials, including two\nversions of the College's written response: a complete version for this office's confidential\nreview and a redacted version for this office to forward to\nhe submitted a reply. \n\n6 On November 30, 2021, \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). \n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information.\" Section 7(1)(c) also contains a relevant exception providing that \"[ t]he\ndisclosure of information that bears on the public duties of public employees and officials shall\nnot be considered an invasion of personal privacy.\" \n\nA public body's assertion that the release of information would constitute a clearly\n\nunwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, \n196 (1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a\nstrict standard to claim the exemption, and the burden is on the public body having charge of the\nrecord to prove that standard has been met. Schessler v. Department of Conservation, 256 Ill. \nApp. 3d 198, 202 (4th Dist. 1994). \n\nAdditionally, section 7(1)(d)(iv) of FOIA exempts from disclosure: \n\n65 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nunavoidably disclose the identity of a confidential\n\niv) \nsource, confidential information furnished only by the\nconfidential source, or persons who file complaints with or\nprovide information to administrative, investigative, law\nenforcement, or penal agencies[.] \n\nThis provision allows police departments to protect the anonymity of both confidential\ninformants and other persons who provide them with information. See, e.g., Chicago Alliance\nfor Neighborhood Safety v. Town of Chicago, 348 Ill. App. 3d 188, 200- 01 (1st Dist. 2004) \nnames and addresses of beat meeting participants properly redacted because they provided\ninformation to police department). Witness statements may be withheld in their entireties only if\ndisclosure of the contents \"would necessarily result in the disclosure of the identity of that\nsource\" of information and, therefore, \" redaction of the [records] cannot be meaningfully\naccomplished.\" Copley Press, Inc. v. City of Springfield, 266 Ill. App. 3d 421, 426 (4th Dist. \n1994). \n\nIn its non-confidential response to this office, the College acknowledged that it\n\nwithheld a RADAR Behavior Incident report and closely similar police report, \" which pertain to\nallegations against the requestor that he is in possession of firearms and made threatening\nremarks against members of the College and individuals in his condominium association.\" 7 The\nCollege asserted that it \"withheld the records on the grounds that a majority of the information\ncontained within the records is exempt from disclosure pursuant to FOIA.\" 8 (Emphasis added.) \nThe College argued that any information that directly or indirectly identifies a person who\nprovided information to the police in this matter is exempt from disclosure under section\n7(1)(d)(iv), and that the narrative statement in the police report and RADAR report \"contains\n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 1. \n\n7 Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 2. \n\n8 Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nspecific information and details which, if disclosed, would likely reveal [redacted].\" 9 The\nCollege argued that the narrative is therefore exempt from disclosure in its entirety. In addition, \nthe College argued that information that would identify individuals involved in the matter is\nexempt under section 7(1)(c) because \" individuals who report information to the College and its\nlaw enforcement officials regarding threats of safety have a reasonable expectation that their\nidentities will not be disclosed, particularly to the source of the threat.\" 10 Further, the College\nargued that\ninterest in disclosure does not outweigh the individuals' privacy\ninterests because he \" was properly notified of the allegations against him and afforded an\nopportunity to respond to those allegations[,]\" and the College has taken no adverse action\nagainst him. 11\n\nIn his reply, \n\nargued that he \" would not be able to link any person(s) to\n\nthese reports based upon the claims made within the narrative statement(s) and/or the details of\nthese reports, some of which, again, could also be redacted if that were truly necessary.\" 12 He\nstated that the College's response to this office's letter \"was the first time it was ever stated that\nthere had been allegations that I had allegedly made threatening remarks against both members\nof the college and individuals in my condominium association[,]\" and he argued that \"[ t]his\nclaim was not based upon any real/ accurate information and was made solely to induce police\naction as well as actions of the college against me.\" 13 He argued that \"[ a]s these false allegations\nmay be used against me in litigation between myself and my condominium association, I have a\nlegitimate interest in the content of these reports (even if redacted), even if not in the identity of\nthe reporter(s), which outweighs the claim of privacy of one or some who filed false police\nreport(s).\" 14\n\nThis office's review of the responsive records confirmed that the narrative largely\nconsists of information that falls within the scope of sections 7(1)(c) and 7(1)(d)(iv) of FOIA. \nThe name and employment position of a person who provided information directly to law\n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 3. \n\n9 Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 4. \n\n10 Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\nOffice of the Illinois Attorney General, Public Access Bureau (November 12, 2021), at 4. \n\n11 Letter from Michelle L. Weber, Robbins Schwartz, to Joshua M. Jones, Deputy Bureau Chief, \n\n12E- mail from\n\nenforcement is exempt from disclosure under the plain language of section 7(1)(d)(iv). \nAdditionally, the name of the other party and the description of the information provided by that\nparty are exempt from disclosure under section 7(1)(c) because it would objectionable to a\nreasonable person to disclose the information to the subject of the report, and the person's right to\nprivacy outweighs any legitimate public interest in obtaining the information. Although\ninterest in learning the contents of the allegedly false\n\nexpressed a clear personal\n\nstatements made about him, the public interest favors protecting the confidentiality of the person\nunder the circumstance of an alleged threat to public safety. Gabrielli v. U.S. Dep' t of Justice, \n594 F. Supp. 309, 312-13 (N.D.N.Y. 1984) (identity of individual who filed unfounded\ncomplaint exempt from disclosure under the version of section 7(1)(c) in Federal FOIA15\nbecause \"[ p]ersons who suspect criminal activity, but who have no hard and fast proof, could\nwell be deterred from providing to law enforcement authorities what may prove to be vital\ninformation for fear that their names would be released to the parties against whom they\nprovided information if their suspicions ultimately prove groundless.\"). \ndisclosing the substance of the statements would be reasonably likely to identify the person who\nmade them. Although\nidentity, he is not well-positioned to make that judgment without the ability to review the\ncontents of the remarks. \n\nprofessed that he would not be able to discern the person's\n\nIt is apparent\n\nthat\n\nThe RADAR report and police report also, however, contain certain discrete\n\ninformation that falls outside the scope of the section 7(1)(c) and section 7(1)(d)(iv) exemptions. \nThe records contain limited information that bears upon the duties of public employees. There is\na compelling public interest in disclosure of records that shed light on the manner in which law\nenforcement officials perform their public duties. Ill. Att'y Gen. Pub. Acc. Op. No. 12-006, \nissued March 16, 2012, at 7. While the College expressly argued that \" a majority of the\ninformation\" in the reports is exempt from disclosure pursuant to FOIA, section 7(1) of FOIA (5\nILCS 140/ 7(1) (West 2020), as amended by Public Act 102- 038, effective June 25, 2021) \nprovides: \n\nWhen a request is made to inspect or copy a public record\nthat contains information that is exempt from disclosure under this\nSection, but also contains information that is not exempt from\ndisclosure, the public body may elect to redact the information that\nis exempt. The public body shall make the remaining information\navailable for inspection and copying. (Emphasis added.) \n\n15 Exemption 7(c) of Federal FOIA (5 U.S.C. § 552(b)(7)(C) permits the withholding of\n\nrecords or information compiled for law enforcement purposes, but only to the extent that the production of such\nlaw enforcement records or information * * * could reasonably be expected to constitute an unwarranted invasion of\n\nIt is true that FOIA does not mandate \" the separation of disjointed words, phrases, or even\nsentences which taken separately or together have minimal or no information content.\" Mead\nData Central, Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 261 n. 55 (D.C. Cir. 1977). That is\nnot the case here, however, because the records contain information about law enforcement\nactivities and context, albeit limited in nature. Therefore, the College did not sustain its burden\nof proving by clear and convincing evidence that the records are exempt from disclosure in their\nentireties. \n\nIn accordance with the conclusions set out above, this office requests that the\n\nwith copies of records, subject to the redaction of the information\n\nCollege provide\ndescribed above and any other information that falls within the plain language of the definition\nof \" private information\" in section 2(c- 5) of FOIA16 pursuant to section 7(1)(b). 17 Under\nseparate cover, this office will provide the College with copies of the records with the\ninformation this office has identified as exempt highlighted. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n68242 f 71b proper 71c proper improper 71div proper improper co\n\n16 Section 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \" private information\" as: \n\nunique identifiers, including a person's social security number, driver's license\nnumber, employee identification number, biometric identifiers, personal\nfinancial information, passwords or other access codes, medical records, home\nor personal telephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of attribution to\nany person. \n\n17 Section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2020), as amended by Public Act 102-038, \n\neffective June 25, 2021) exempts from disclosure \"[ p]rivate information, unless disclosure is required by another\nprovision of this Act, a State or federal law or a court order.\""}
{"id":967,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-03-25","case_number":null,"request_numbers":["68318"],"title":"Illinois Secretary of State properly denied repeated FOIA request as unduly burdensome","filename":"68318, issued March 25, 2022.pdf","rel_path":null,"word_count":1200,"summary":"The requester challenged the Illinois Secretary of State's denial of a FOIA request for employee rosters, which the agency had denied as a repeated request. The PAC determined that the request was indeed a repeat of a previous request for identical records and upheld the agency's denial.","plain_summary":"A citizen requested a list of employees and job titles from the Secretary of State's office. The office denied the request because they had already provided the exact same information to the requester just two months earlier. The Attorney General's office agreed with the agency, ruling that public bodies do not have to fulfill repeated requests for the same records.","holding":"The Illinois Secretary of State's Office properly denied the request as an unduly burdensome repeated request under section 3(g) of FOIA.","legal_question":"Whether a public body may deny a FOIA request as 'unduly burdensome' under section 3(g) when the request seeks records identical to those previously provided to the same requester.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Secretary of State's Office","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"repeated request","subject_description":"The requester sought a roster of employees and job titles for a specific office location.","ocr_status":"ok","ocr_quality":92.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Repeated-requests/68318%2C%20issued%20March%2025%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeated request","unduly burdensome","employee records","FOIA denial"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMarch 25, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:   FOIA Request for Review –  2021 PAC 68318\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)).   For the reasons explained below,  this\noffice has determined that your Request for Review is unfounded. \n\nOn November 16, 2021,  this office received the information necessary to\n\ncomplete your Request for Review,  which concerned a FOIA request that you submitted to the\nIllinois Secretary of State' s Office ( Secretary of State's Office)  on November 4, 2021.   Your\nFOIA request stated:  \" FOIA Request,  LIST ROSTER OF ALL EMPLOYEES AND JOB\nDUTIES/ TITLES FOR SOS [ Secretary of State' s Office)]  LOCATED 100 W Randolph St, \nChicago,  IL 60601,  United States,  THOMPSON CENTER,  SEND IN PDF FORMAT.\" 1 On\nNovember 4, 2021,  the Secretary of State's Office denied your request as an unduly burdensome\nrepeated request under section 3(g) of FOIA, 2 stating that it had already provided you with\ncopies of those records on September 10, 2021,  in response to your September 8, 2021,  FOIA\nrequest.   Your Request for Review asked this office to, \" REVIEW THIS FOIA REQUEST,  AS\nTHIS EMPLOYEE IS DENYING PUBLIC RECORDS AND ASSUMING THINGS ABOUT\nME.\" 3\n\n1E-mail from\n\nto Donna Leonard, [ Executive Counsel], \n\nIllinois Secretary of State] ( November 4, 2021). ( Emphasis in original).   \n\n25 ILCS 140/3(g) (West 2020). \n\n2021). \n\n3E-mail from\n\nto Public Access [ Bureau] ( November 4, \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844-5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800) 964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618) 529-6416\n\n\fMarch 25, 2022\nPage 2\n\nSection 3(g) of FOIA provides,  in pertinent part that \"[ r]epeated requests from\nthe same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\"  ( Emphasis added.)   Under the plain language of section 3(g), a request is an unduly\nburdensome repeated request if a public body has previously provided you with the responsive\nrecords or properly denied a prior, unchanged request.   \n\nFurthermore,  section 2(b) of FOIA 4 defines \" person\"  as \" any individual, \n\ncorporation,  partnership,  firm, organization or association,  acting individually or as a group.\"  \nThis office has previously determined that two individuals who extensively worked in tandem on\nFOIA matters qualified as the same \" person\"  for purposes of section 3(g) of FOIA.  See Ill. Att'y\nGen.  PAC Req.  Rev. Ltr. 41654,  issued August 28, 2019,  at 2 (\" It would be absurd for a public\nbody to have to comply with separate requests from [ two named individuals]  for the same\nmaterials given their extensive joint FOIA efforts.\").      \n\nOn January 13, 2022,  an Assistant Attorney General ( AAG) in the Public Access\nBureau e-mailed you for clarification because it was unclear whether you were disputing that you\nhad submitted a FOIA request to the Secretary of State's Office for the same records,  or that the\nSecretary of State' s Office had previously provided you with the responsive records.   The AAG\nrequested that you provide this office with a copy of the September 8, 2021,  FOIA request and\nthe Secretary of State's Office' s September 10, 2021,  response,  if applicable.   On January 19, \n2022,  you sent an e-mail to this office with no content or attachment,  and on January 27, 2022, \nyou e-mailed this office inquiring about the status of this file, but you did not clarify your\nRequest for Review,  dispute the Secretary of State's Office' s allegations,  or provide the requested\ndocuments.   On January 27, 2022,  the AAG e-mailed you again and asked that you specifically\nclarify whether you are alleging that you did not submit a September 8, 2021,  FOIA request to\nthe Secretary of State's Office seeking the same records.   To date,  you have not responded to the\nAAG's correspondence or otherwise disputed the Secretary of State' s Office' s allegations.  \n\nOn February 13, 2021,  the AAG spoke with Ms. Donna Leonard,  FOIA officer\n\nfor the Secretary of State' s Office.  Ms. Leonard explained that since July 2021,  the Secretary of\nState' s Office has received numerous anonymous FOIA requests repeatedly requesting the same\nrecords,  and that all requests were submitted using different e-mail addresses via the encrypted e-\nmail service ProtonMail, 5 all using the same,  or substantially similar,  phrasing and writing style.  \nMs. Leonard stated that she has reason to believe that you, or other individuals working in\nconcert with you, submitted these FOIA requests.  \n\n45 ILCS 140/2(b) (West 2020).   \n\n5https:// mashable. com/article/ what-is-protonmail\n\n\fMarch 25, 2022\nPage 3\n\nRelevant to this matter,  Ms. Leonard provided this office with a copy of a FOIA\n\nthat requested, \" List roster of all employees and job\n\nrequest that the Secretary of State's Office received on September 8, 2021,  from the e-mail\naddress\nduties/ titles and salary working at the Secretary of State location Thompson center 100 W\nRandolph St, Chicago,  IL 60601 send in PDF format[.]\" 6 Ms. Leonard also provided a copy of\nthe Secretary of State's Office' s September 10, 2021,  response to that request,  which provided the\nrequested employee roster.   Ms. Leonard confirmed that the record responsive to your November\n4, 2021,  FOIA request is identical to the record that it provided to the FOIA requester on\nSeptember 10, 2021,  and that no additional responsive materials were created between\nSeptember 10, 2021, and November 4, 2021.  \n\nBased on this office' s review,  there is no material difference between the\n\nSeptember 8, 2021,  FOIA request and your November 4, 2021,  FOIA request,  including the\nobvious similarity between the phrasing of the two FOIA requests.   You have not responded to\nthis office' s multiple requests to clarify whether you dispute the Secretary of State's Office' s\nassertions that you submitted the September 8, 2021,  FOIA request at issue.   Therefore,  this\noffice concludes that both the September 8, 2021,  and November 4, 2021,  FOIA requests were\nsubmitted by the same \" person\"  for the purposes of section 3(g) of FOIA.  Accordingly,  this\noffice has determined that your November 4, 2021,  FOIA request was for the same records that\nwere unchanged or identical to records previously provided to you, and therefore,  the Secretary\nof State's Office properly denied your November 4, 2021,  request as unduly burdensome,  and\nthat your Request for Review is unfounded.   This file is closed.   \n\nat the bottom of the first page of this letter.    \n\nIf you have any questions,  you may contact me by mail at the Chicago address\n\nVery truly yours, \n\nSHANNON BARNABY\nAssistant Attorney General\nPublic Access Bureau\n\n68318 f unf sa\n\nSecretary of State] ( September 8, 2021).    \n\n6E-mail from\n\nto [ Donna Leonard], [ Executive Counsel], [ Illinois\n\n\fMarch 25, 2022\nPage 4\n\ncc:  \n\nVia electronic mail\nMs. Donna Leonard\nExecutive Counsel/ FOIA Officer\nIllinois Secretary of State\nexecutivecounsel@ilsos. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An employee roster and job titles for an office location","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68318/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMarch 25, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2021 PAC 68318\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2020)). For the reasons explained below, this\noffice has determined that your Request for Review is unfounded. \n\nOn November 16, 2021, this office received the information necessary to\n\ncomplete your Request for Review, which concerned a FOIA request that you submitted to the\nIllinois Secretary of State's Office (Secretary of State's Office) on November 4, 2021. Your\nFOIA request stated: \" FOIA Request, LIST ROSTER OF ALL EMPLOYEES AND JOB\nDUTIES/ TITLES FOR SOS [ Secretary of State's Office)] LOCATED 100 W Randolph St, \nChicago, IL 60601, United States, THOMPSON CENTER, SEND IN PDF FORMAT.\" 1 On\nNovember 4, 2021, the Secretary of State's Office denied your request as an unduly burdensome\nrepeated request under section 3(g) of FOIA, 2 stating that it had already provided you with\ncopies of those records on September 10, 2021, in response to your September 8, 2021, FOIA\nrequest. Your Request for Review asked this office to, \" REVIEW THIS FOIA REQUEST, AS\nTHIS EMPLOYEE IS DENYING PUBLIC RECORDS AND ASSUMING THINGS ABOUT\nME.\" 3\n\n1E-mail from\n\nto Donna Leonard, [ Executive Counsel], \n\nIllinois Secretary of State] (November 4, 2021). (Emphasis in original). \n\n25 ILCS 140/3(g) (West 2020). \n\n2021). \n\n3E-mail from\n\nto Public Access [ Bureau] (November 4, \n\nSection 3(g) of FOIA provides, in pertinent part that \"[ r]epeated requests from\nthe same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\" (Emphasis added.) Under the plain language of section 3(g), a request is an unduly\nburdensome repeated request if a public body has previously provided you with the responsive\nrecords or properly denied a prior, unchanged request. \n\nFurthermore, section 2(b) of FOIA 4 defines \" person\" as \" any individual, \n\ncorporation, partnership, firm, organization or association, acting individually or as a group.\" \nThis office has previously determined that two individuals who extensively worked in tandem on\nFOIA matters qualified as the same \" person\" for purposes of section 3(g) of FOIA. See Ill. Att'y\nGen. PAC Req. Rev. Ltr. 41654, issued August 28, 2019, at 2 (\" It would be absurd for a public\nbody to have to comply with separate requests from [ two named individuals] for the same\nmaterials given their extensive joint FOIA efforts.\"). \n\nOn January 13, 2022, an Assistant Attorney General (AAG) in the Public Access\nBureau e-mailed you for clarification because it was unclear whether you were disputing that you\nhad submitted a FOIA request to the Secretary of State's Office for the same records, or that the\nSecretary of State's Office had previously provided you with the responsive records. The AAG\nrequested that you provide this office with a copy of the September 8, 2021, FOIA request and\nthe Secretary of State's Office's September 10, 2021, response, if applicable. On January 19, \n2022, you sent an e-mail to this office with no content or attachment, and on January 27, 2022, \nyou e-mailed this office inquiring about the status of this file, but you did not clarify your\nRequest for Review, dispute the Secretary of State's Office's allegations, or provide the requested\ndocuments. On January 27, 2022, the AAG e-mailed you again and asked that you specifically\nclarify whether you are alleging that you did not submit a September 8, 2021, FOIA request to\nthe Secretary of State's Office seeking the same records. To date, you have not responded to the\nAAG's correspondence or otherwise disputed the Secretary of State's Office's allegations. \n\nOn February 13, 2021, the AAG spoke with Ms. Donna Leonard, FOIA officer\n\nfor the Secretary of State's Office. Ms. Leonard explained that since July 2021, the Secretary of\nState's Office has received numerous anonymous FOIA requests repeatedly requesting the same\nrecords, and that all requests were submitted using different e-mail addresses via the encrypted e-\nmail service ProtonMail, 5 all using the same, or substantially similar, phrasing and writing style. \nMs. Leonard stated that she has reason to believe that you, or other individuals working in\n\nRelevant to this matter, Ms. Leonard provided this office with a copy of a FOIA\n\nthat requested, \" List roster of all employees and job\n\nrequest that the Secretary of State's Office received on September 8, 2021, from the e-mail\naddress\nduties/ titles and salary working at the Secretary of State location Thompson center 100 W\nRandolph St, Chicago, IL 60601 send in PDF format[.]\" 6 Ms. Leonard also provided a copy of\nthe Secretary of State's Office's September 10, 2021, response to that request, which provided the\nrequested employee roster. Ms. Leonard confirmed that the record responsive to your November\n4, 2021, FOIA request is identical to the record that it provided to the FOIA requester on\nSeptember 10, 2021, and that no additional responsive materials were created between\nSeptember 10, 2021, and November 4, 2021. \n\nBased on this office's review, there is no material difference between the\n\nSeptember 8, 2021, FOIA request and your November 4, 2021, FOIA request, including the\nobvious similarity between the phrasing of the two FOIA requests. You have not responded to\nthis office's multiple requests to clarify whether you dispute the Secretary of State's Office's\nassertions that you submitted the September 8, 2021, FOIA request at issue. Therefore, this\noffice concludes that both the September 8, 2021, and November 4, 2021, FOIA requests were\nsubmitted by the same \" person\" for the purposes of section 3(g) of FOIA. Accordingly, this\noffice has determined that your November 4, 2021, FOIA request was for the same records that\nwere unchanged or identical to records previously provided to you, and therefore, the Secretary\nof State's Office properly denied your November 4, 2021, request as unduly burdensome, and\nthat your Request for Review is unfounded. This file is closed. \n\nat the bottom of the first page of this letter. \n\nIf you have any questions, you may contact me by mail at the Chicago address\n\nVery truly yours, \n\nSHANNON BARNABY\n\ncc: \n\nVia electronic mail\nMs. Donna Leonard\nExecutive Counsel/ FOIA Officer\nIllinois Secretary of State\nexecutivecounsel@ilsos. gov"}
{"id":968,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-09-27","case_number":null,"request_numbers":["68657"],"title":"City of Chicago Planning partially properly withheld parking lot sale emails under 7(1)(f) and 7(1)(r)","filename":"68657, issued September 27, 2022.pdf","rel_path":null,"word_count":1790,"summary":"The requester sought emails regarding the sale of a City-owned parking lot, and the PAC determined that the City of Chicago Department of Planning and Development improperly redacted certain non-exempt information.","plain_summary":"This determination addressed whether the City of Chicago Department of Planning and Development properly redacted emails about a parking-lot sale under FOIA exemptions 7(1)(f) (deliberative process) and 7(1)(r) (real estate sale/negotiation records). The Public Access Bureau found the Department properly withheld most redacted material because it consisted of predecisional deliberations or information tied to ongoing negotiations for the sale of city-owned parcels, which remain exempt under 7(1)(r) until a sale is consummated and under 7(1)(f) as give-and-take deliberative content. However, the Department improperly withheld a third-party email from a chamber-of-commerce representative (not deliberative or negotiation-related), purely factual utilization-rate tables not inextricably intertwined with deliberations, and any finalized (non-draft) marketing materials disseminated externally. The Department was asked to provide an updated, less-redacted copy of the emails covering these specific non-exempt portions. The Public Access Counselor determined a binding opinion was unnecessary and closed the file as a non-binding determination.","holding":"Records relating to real estate sale negotiations and predecisional deliberative communications may be withheld under 5 ILCS 140/7(1)(r) and 7(1)(f), but purely factual material not inextricably intertwined with deliberations and third-party communications unrelated to negotiations must be disclosed.","legal_question":"Whether the Department of Planning and Development properly applied FOIA exemptions 7(1)(f) and 7(1)(r) to redact emails concerning the sale of a city-owned parking lot.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(f)","7(1)(r)"],"public_body":"City of Chicago Department of Planning and Development","requesting_party":"Ms. Angelica Lis (on behalf of requester)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"real estate records","subject_description":"The request concerned emails and correspondence regarding the potential sale of a city-owned parking lot.","ocr_status":"ok","ocr_quality":92.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_r/68657%2C%20issued%20September%2027%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["redaction","real estate","deliberative process","email records"],"truncated_suspect":0,"site_category":"Property Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 27, 2022\nVia electronic mail\n\nVia electronic mail\n\nMs. Angelica Lis\n\nFOIA Officer\n\nCity of Chicago Department of Planning and Development\n121 North LaSalle Street, Room 1000\n\nChicago, Illinois 60602\n\nDPDFOIA @cityofchicago.org\n\nRE: FOIA Request for Review — 2021 PAC 68657\n\nDea anc Ms. Lis:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau has determined that the City of Chicago (City) Department of Planning\n\nand Development (Department) improperly redacted certain information responsive rol\nFOIA request.\n\nOn October 29, 2021 SEE submitted a FOIA request to the Department\nseeking copies of e-mails to and from the Department's Managing Deputy Commissioner, Mr.\nChip Hastings, between July 1, 2021, and October 28, 2021, containing three keywords related to\nthe intended sale of a City-owned parking lot at 4050 North Laporte. SE 2's requested\ncopies of written correspondence received by Mr. Hastings regarding a parking lot. On\nNovember 19, 2021, the Department responded by >rovidineizva ith copies of records\nwith redactions pursuant to sections 7(1)(b), 7(1)(f), and 7(1)(r) of FOIA (5 ILCS 140/7(1)(b),\n(1)(f), (1)(r) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558,\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 + TTY: (877) 844-5461 + Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 » Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 2\n\neffective August 20, 2021). On November 22, 2021, EE submitted the above-referenced\nRequest for Review contesting the Department's redactions pursuant to sections 7(1)(f) and\n7(1)(t) of FOIA.\n\nOn November 24, 2021, this office sent a copy of i Request for Review\nto the Department and asked it to provide unredacted copies of the withheld records for this\noffice's confidential review and a detailed written explanation of the legal and factual basis for\nthe applicability of the sections 7(1)(f) and 7(1)(r) exemptions. On December 28, 2021, this\noffice received those materials. On December 29, 2021, this office forwarded a copy of the\nDepartment's response letter to] and notified him of his opportunity to reply. He did\nnot reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Il. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nAs an initial matter, the Department did not differentiate which records it\nwithheld under section 7(1)(f) from which records it withheld under section 7(1)(r).\nAccordingly, this determination letter examines the applicability of each exemption to all of the\ncontested information.\n\nSection 7(1)(r) of FOTA\nSection 7(1)(r) exempts from disclosure:\n\nThe records, documents, and information relating to real\nestate purchase negotiations until those negotiations have been\ncompleted or otherwise terminated. * * * The records,\ndocuments and information relating to a real estate sale shall\nbe exempt until a sale is consummated. (Emphasis added.)\n\nBy its plain language, section 7(1)(r) allows a public body to withhold communications involved\nin selling real property owned by the public body until the sale is complete. Nonetheless, the\nterm \"relating to\" must be read narrowly to comport with FOIA. See similarly Peoria Journal\nStar v. City of Peoria, 2016 IL App (3d) 140838, 913, 52 N.E.3d 711, 714 (2016) (\"[T]he phrase\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 3\n\n‘relating to' [in section 7(1)(n) of FOIA'] must be read narrowly and in light of FOIA's purpose\nto generally provide open access to public records.\"); Kalven v. City of Chicago, 2014 IL App\n(Ist) 121846, 919, 7 N.E.3d 741, 746-47 (2014), overruled in part on other grounds by Perry v.\nDepartment of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018)\n(concluding that it \"is contrary to the intent of FOIA\" to give the language \"relating to\" in section\n7(1)(n) \"an expansive interpretation and render a broad category of public documents immune to\npublic scrutiny.\").\n\nIn its response to this office, the Department asserted that it properly redacted\ninformation pursuant to section 7(1)(r) of FOIA because it was \"currently working to sell 4 city\nowned parking lots.\" The Department explained that it had retained commercial real estate\nbrokers Cushman & Wakefield to market the lots, and that: \"The sales are still ongoing\nnegotiation. [The Department] is still reviewing applications for this project, and have not made\na final selection.\"?\n\nThis office has reviewed the unredacted copies of the requested e-mails, which\nwere provided for our confidential review. Many of the contested e-mails concern the sale of\nCity-owned parcels of land at a time when the Department was marketing the properties and\nconsidering offers. The redacted communications involved in soliciting and reviewing offers for\nthe sale of real estate fall within the scope of section 7(1)(r) of FOIA. Section 7(1)(f) also\napplies to many of these e-mails, though others only fall within the scope of section 7(1)(f), as\ndiscussed further below.\n\nOn the other hand, certain discrete information redacted from a couple of the e-\nmails falls outside the scope of the exemption. Specifically, the information redacted from the e-\nmail from a representative of the Six Corners Chamber of Commerce falls outside the scope of\nthe exemption because it is extraneous to the Department's efforts to negotiate and complete\nproperty sales. Similarly, the redacted utilization rate tables are not akin to offers, evaluations of\noffers, negotiations with prospective buyers, or other aspects of real estate purchase negotiations\nand real estate sales themselves. Rather, the utilization rate tables are at a level removed from\n\n'Section 7(1)(n) of FOIA (5 ILCS 140/7(1)(n) (West 2020), as amended by Public Acts 102-038,\neffective June 25, 2021; 102-558, effective August 20, 2021) exempts from inspection and copying \"[r]ecords\nrelating to a public body's adjudication of employee grievances or disciplinary cases[.]\"\n\n*Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), a [2].\n\n3Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), a [2].\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 4\n\nthose processes as tangential considerations that do not directly relate to purchase negotiations\nand sales. Therefore, the Department did not prove by clear and convincing evidence that those\nrecords are exempt from disclosure under section 7(1)(r) of FOIA.\n\nSection 7(1)(f) of FOTA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent in most respects to the deliberative process exemption in\nthe Federal FOIA (5 U.S.C. §552(b)(5) (2020)), which applies to \"inter- and intra-agency\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n(Ist Dist. 2003). The exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood, 344 Ill. App. 3d at 248.\n\nHowever, \"[o]nly those portions of a predecisional document that reflect the give\nand take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App\n(Ist) 121846, 924, 7 N.E.3d 741, 748 (2013) (quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010)). The Illinois Appellate Court has\nstated that \"purely factual material\" is not exempt from disclosure under section 7(1)(f) unless\n\"inextricably intertwined\" with predecisional discussions. Watkins v. McCarthy, 2012 IL App\n(Ist) 100632, 936, 980 N.E.2d 733, 743 (2012) (quoting Enviro Tech Int'l, Inc. v. United States\nEnvironmental Protection Agency, 371 F.3d 370, 374 (7th Cir. 2004)).\n\nIn its response to this office, the Department asserted that it redacted \"deliberative\nconversations, memos, and attachments.\"* The Department contended that these records contain\npreliminary opinions and the formulation of policies and actions. This office's review confirmed\nthat the Department withheld various internal communications pursuant to section 7(1)(f) of\nFOIA that are predecisional and deliberative in nature as the Department formulated actions with\nrespect to the sale of the parking lot. These materials reflecting the give and take of the\ndeliberative process and are therefore exempt from disclosure pursuant to section 7(1)(f) of\nFOIA.\n\nHowever, the e-mail from the Six Corners Chamber of Commerce is not exempt\nunder section 7(1)(f) because it is a third party communication with an entity representing\n\n4Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), at [2].\n\nMs. Angelica Lis\nSeptember 27, 2022\nPage 5\n\nindependent interests. Additionally, the Department did not demonstrate that the utilization rate\ntables for the parking lots meet the terms of the exemption. It is clear from portions of the e-\nmails disclosed tolfthat rate utilization tables were considered as part of the deliberative\nprocess; however, the tables themselves consist of purely factual information that does not\nprovide any additional insight into the process of formulating action and, therefore, are not\ninextricably intertwined with any undisclosed predecisional discussions. Accordingly, the\nutilization rate tables are not exempt from disclosure.\n\nAdditionally, it is unclear from the records this office reviewed confidentially\nwhether the Department withheld final promotional materials, rather than drafts. To the extent\nthat it withheld marketing materials disseminated externally, the Department did not demonstrate\nthat these materials are exempt from disclosure under either exemption and should disclose them.\n\nTo remedy its improper withholding of the information identified above as non-\nexempt, the Public Access Bureau asks that the Department provide, with an updated\ncopy of the requested e-mails without the redaction of these discrete portions.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n\njane.sternecky@ilag.gov. This letter serves to close this file.\n\nVery truly yours\n\nJANE STERNECKY\nAssistant Attorney General\nPublic Access Bureau\n\n68657 f 71r proper improper 71f proper improper mun\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails about a city-owned parking lot sale","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-68657/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 27, 2022\nVia electronic mail\n\nVia electronic mail\n\nMs. Angelica Lis\n\nFOIA Officer\n\nCity of Chicago Department of Planning and Development\n121 North LaSalle Street, Room 1000\n\nChicago, Illinois 60602\n\nDPDFOIA @cityofchicago.org\n\nRE: FOIA Request for Review — 2021 PAC 68657\n\nDea anc Ms. Lis:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau has determined that the City of Chicago (City) Department of Planning\n\nand Development (Department) improperly redacted certain information responsive rol\nFOIA request.\n\nOn October 29, 2021 SEE submitted a FOIA request to the Department\nseeking copies of e-mails to and from the Department's Managing Deputy Commissioner, Mr.\nChip Hastings, between July 1, 2021, and October 28, 2021, containing three keywords related to\nthe intended sale of a City-owned parking lot at 4050 North Laporte. SE 2's requested\ncopies of written correspondence received by Mr. Hastings regarding a parking lot. On\nNovember 19, 2021, the Department responded by >rovidineizva ith copies of records\nwith redactions pursuant to sections 7(1)(b), 7(1)(f), and 7(1)(r) of FOIA (5 ILCS 140/7(1)(b),\n(1)(f), (1)(r) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558,\n\neffective August 20, 2021). On November 22, 2021, EE submitted the above-referenced\nRequest for Review contesting the Department's redactions pursuant to sections 7(1)(f) and\n7(1)(t) of FOIA.\n\nOn November 24, 2021, this office sent a copy of i Request for Review\nto the Department and asked it to provide unredacted copies of the withheld records for this\noffice's confidential review and a detailed written explanation of the legal and factual basis for\nthe applicability of the sections 7(1)(f) and 7(1)(r) exemptions. On December 28, 2021, this\noffice received those materials. On December 29, 2021, this office forwarded a copy of the\nDepartment's response letter to] and notified him of his opportunity to reply. He did\nnot reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Il. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nAs an initial matter, the Department did not differentiate which records it\nwithheld under section 7(1)(f) from which records it withheld under section 7(1)(r).\nAccordingly, this determination letter examines the applicability of each exemption to all of the\ncontested information.\n\nSection 7(1)(r) of FOTA\nSection 7(1)(r) exempts from disclosure:\n\nThe records, documents, and information relating to real\nestate purchase negotiations until those negotiations have been\ncompleted or otherwise terminated. * * * The records,\ndocuments and information relating to a real estate sale shall\nbe exempt until a sale is consummated. (Emphasis added.)\n\nBy its plain language, section 7(1)(r) allows a public body to withhold communications involved\nin selling real property owned by the public body until the sale is complete. Nonetheless, the\nterm \"relating to\" must be read narrowly to comport with FOIA. See similarly Peoria Journal\nStar v. City of Peoria, 2016 IL App (3d) 140838, 913, 52 N.E.3d 711, 714 (2016) (\"[T]he phrase\n\n‘relating to' [in section 7(1)(n) of FOIA'] must be read narrowly and in light of FOIA's purpose\nto generally provide open access to public records.\"); Kalven v. City of Chicago, 2014 IL App\n(Ist) 121846, 919, 7 N.E.3d 741, 746-47 (2014), overruled in part on other grounds by Perry v.\nDepartment of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018)\n(concluding that it \"is contrary to the intent of FOIA\" to give the language \"relating to\" in section\n7(1)(n) \"an expansive interpretation and render a broad category of public documents immune to\npublic scrutiny.\").\n\nIn its response to this office, the Department asserted that it properly redacted\ninformation pursuant to section 7(1)(r) of FOIA because it was \"currently working to sell 4 city\nowned parking lots.\" The Department explained that it had retained commercial real estate\nbrokers Cushman & Wakefield to market the lots, and that: \"The sales are still ongoing\nnegotiation. [The Department] is still reviewing applications for this project, and have not made\na final selection.\"?\n\nThis office has reviewed the unredacted copies of the requested e-mails, which\nwere provided for our confidential review. Many of the contested e-mails concern the sale of\nCity-owned parcels of land at a time when the Department was marketing the properties and\nconsidering offers. The redacted communications involved in soliciting and reviewing offers for\nthe sale of real estate fall within the scope of section 7(1)(r) of FOIA. Section 7(1)(f) also\napplies to many of these e-mails, though others only fall within the scope of section 7(1)(f), as\ndiscussed further below.\n\nOn the other hand, certain discrete information redacted from a couple of the e-\nmails falls outside the scope of the exemption. Specifically, the information redacted from the e-\nmail from a representative of the Six Corners Chamber of Commerce falls outside the scope of\nthe exemption because it is extraneous to the Department's efforts to negotiate and complete\nproperty sales. Similarly, the redacted utilization rate tables are not akin to offers, evaluations of\noffers, negotiations with prospective buyers, or other aspects of real estate purchase negotiations\nand real estate sales themselves. Rather, the utilization rate tables are at a level removed from\n\n'Section 7(1)(n) of FOIA (5 ILCS 140/7(1)(n) (West 2020), as amended by Public Acts 102-038,\neffective June 25, 2021; 102-558, effective August 20, 2021) exempts from inspection and copying \"[r]ecords\nrelating to a public body's adjudication of employee grievances or disciplinary cases[.]\"\n\n*Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\nGeneral (December 28, 2021), a [2].\n\n3 Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\n\nthose processes as tangential considerations that do not directly relate to purchase negotiations\nand sales. Therefore, the Department did not prove by clear and convincing evidence that those\nrecords are exempt from disclosure under section 7(1)(r) of FOIA.\n\nSection 7(1)(f) of FOTA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes,\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent in most respects to the deliberative process exemption in\nthe Federal FOIA (5 U.S.C. §552(b)(5) (2020)), which applies to \"inter- and intra-agency\npredecisional and deliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247\n(Ist Dist. 2003). The exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood, 344 Ill. App. 3d at 248.\n\nHowever, \"[o]nly those portions of a predecisional document that reflect the give\nand take of the deliberative process may be withheld.\" Kalven v. City of Chicago, 2013 IL App\n(Ist) 121846, 924, 7 N.E.3d 741, 748 (2013) (quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010)). The Illinois Appellate Court has\nstated that \"purely factual material\" is not exempt from disclosure under section 7(1)(f) unless\n\"inextricably intertwined\" with predecisional discussions. Watkins v. McCarthy, 2012 IL App\n(Ist) 100632, 936, 980 N.E.2d 733, 743 (2012) (quoting Enviro Tech Int'l, Inc. v. United States\nEnvironmental Protection Agency, 371 F.3d 370, 374 (7th Cir. 2004)).\n\nIn its response to this office, the Department asserted that it redacted \"deliberative\nconversations, memos, and attachments.\"* The Department contended that these records contain\npreliminary opinions and the formulation of policies and actions. This office's review confirmed\nthat the Department withheld various internal communications pursuant to section 7(1)(f) of\nFOIA that are predecisional and deliberative in nature as the Department formulated actions with\nrespect to the sale of the parking lot. These materials reflecting the give and take of the\ndeliberative process and are therefore exempt from disclosure pursuant to section 7(1)(f) of\nFOIA.\n\nHowever, the e-mail from the Six Corners Chamber of Commerce is not exempt\nunder section 7(1)(f) because it is a third party communication with an entity representing\n\n4 Letter from Angelica Lis, FOIA Officer, City of Chicago Department of Planning and\nDevelopment, to Jane Sternecky, Assistant Attorney General, Public Access Bureau, Office of the Illinois Attorney\n\nindependent interests. Additionally, the Department did not demonstrate that the utilization rate\ntables for the parking lots meet the terms of the exemption. It is clear from portions of the e-\nmails disclosed tolfthat rate utilization tables were considered as part of the deliberative\nprocess; however, the tables themselves consist of purely factual information that does not\nprovide any additional insight into the process of formulating action and, therefore, are not\ninextricably intertwined with any undisclosed predecisional discussions. Accordingly, the\nutilization rate tables are not exempt from disclosure.\n\nAdditionally, it is unclear from the records this office reviewed confidentially\nwhether the Department withheld final promotional materials, rather than drafts. To the extent\nthat it withheld marketing materials disseminated externally, the Department did not demonstrate\nthat these materials are exempt from disclosure under either exemption and should disclose them.\n\nTo remedy its improper withholding of the information identified above as non-\nexempt, the Public Access Bureau asks that the Department provide, with an updated\ncopy of the requested e-mails without the redaction of these discrete portions.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, you may contact me at\n\njane.sternecky@ilag.gov. This letter serves to close this file.\n\nVery truly yours\n\nJANE STERNECKY\nAssistant Attorney General\nPublic Access Bureau\n\n68657 f 71r proper improper 71f proper improper mun"}
{"id":969,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-05-19","case_number":null,"request_numbers":["69505","69506"],"title":"City of Edwardsville did not improperly deny building plans under 7(1)(k)","filename":"69505 69506, issued May 19, 2022.pdf","rel_path":null,"word_count":1827,"summary":"The requester sought building applications, permits, and inspection records for specific commercial zones in Edwardsville, which the City withheld citing security concerns. The PAC determined the City did not improperly deny the records under FOIA Section 7(1)(k).","plain_summary":"A reporter requested building plans and permit records from the City of Edwardsville for commercial warehouses, including an Amazon facility. The City denied the building plans under FOIA exemption 7(1)(k), arguing the projects were privately funded and not built with public funds. The Illinois Attorney General's Public Access Bureau concluded the City did not improperly deny the records, because the exemption applies to privately funded building plans regardless of security concerns. The Bureau did not decide whether disclosure would compromise security.","holding":"The City of Edwardsville did not improperly deny the requested records under section 7(1)(k) of FOIA.","legal_question":"Whether the City of Edwardsville properly withheld building plans and permit records under the FOIA exemption for documents that would compromise security (5 ILCS 140/7(1)(k)).","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(k)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(k)"],"public_body":"City of Edwardsville","requesting_party":"Mr. Eric Schmid (St. Louis Public Radio)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(k)","subject_description":"The request sought building applications, permits, and inspection records for commercial and industrial structures in specific zones.","ocr_status":"ok","ocr_quality":95.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_k/69505%2069506%2C%20issued%20May%2019%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["building plans","security exemption","permits","public records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 19, 2022\n\nVia electronic mail\nMr. Eric Schmid\nMetro East Reporter\nSt. Louis Public Radio\n[street address redacted for site publication -- see original PDF]\neschmid@umsl. edu\n\nVia electronic mail\nMr. Jeffrey S. Berkbigler\nCity Attorney/ Corporation Counsel\nCity of Edwardsville,  Illinois\njberkbigler@cityofedwardsville. com\n\nRE:  FOIA Request for Review –  2022 PAC 69505 and 69506\n\nDear Mr. Schmid and Mr. Berkbigler: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that the City of Edwardsville ( City) did not improperly deny\nrecords responsive to Mr. Eric Schmid' s December 16, 2021,  FOIA request. \n\nOn that date, Mr. Schmid,  on behalf of St. Louis Public Radio,  submitted a FOIA\n\nrequest to the City seeking copies of applications filed, permits issued,  and inspections made\npursuant to City ordinances which pertain to any building within the Gateway Commerce\nEnterprise Zone and a M-1 Light Manufacturing Zone.   On December 23, 2021,  Mr. Schmid\nnarrowed his request to records concerning commercial,  industrial,  or office/ professional\nstructures within the 1270/ 1255/ IL111 interchange area.   On January 19, 2022,  the City provided\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 2\n\nresponsive records with certain information redacted under sections 7(1)(b) and 7(1)(c)1 of FOIA\nand denied structural and architectural building plans pursuant to section 7(1)(k) of FOIA. 2\n\nOn December 20, 2021,  Mr. Schmid submitted a FOIA request to the City seeking\n\ncopies of applications filed, permits issued,  and inspections made pursuant to a City ordinance\nwhich pertains to property at 3077 Gateway Commerce.   On the same day, the City provided\nresponsive records with certain information redacted under sections 7(1)(b) and 7(1)(c) of FOIA\nand denied structural and architectural building plans pursuant to section 7(1)(k) of FOIA. \n\nOn January 20, 2022,  Mr. Schmid submitted a Request for Review disputing the\ndenial of the building plans.   He stated that the records he is seeking include building plans for\nan Amazon warehouse that collapsed after being hit by a tornado;  he stated that he needs the\nrecords to verify Amazon officials'  assertion that the building was in compliance with applicable\nbuilding codes and to determine whether surrounding warehouses were similarly designed and\nconstructed.   On February 3, 2022,  this office sent a copy of the Request for Review to the City\nand asked it provide copies of the records that were withheld for this office' s confidential review\nand a detailed explanation of the factual and legal bases for the applicability of the section\n7(1)(k) exemption.   On March 2, 2022,  the City submitted its response.   On March 7, 2022,  this\noffice forwarded the City's written response to Mr. Schmid;  he replied on March 15, 2022. \n\nDETERMINATION\n\nSection 7(1)(k) of FOIA exempts from disclosure: \n\nArchitects'  plans,  engineers'  technical submissions,  and\nother construction related technical documents for projects not\nconstructed or developed in whole or in part with public funds\nand the same for projects constructed or developed with public\nfunds,  including but not limited to power generating and\ndistribution stations and other transmission and distribution\nfacilities,  water treatment facilities,  airport facilities,  sport\nstadiums,  convention centers,  and all government owned,  operated, \nor occupied buildings,  but only to the extent that disclosure would\ncompromise security.  ( Emphasis added.) \n\n2021;  102-558, effective August 20, 2021. \n\n15 ILCS 140/ 7(1)(b), (1)(c) (West 2020),  as amended by Public Acts 102- 038, effective June 25,  \n\n102- 558, effective August 20, 2021.   \n\n25 ILCS 140/ 7(1)(k) (West 2020),  as amended by Public Acts 102- 038, effective June 25, 2021;  \n\n\fMr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 3\n\nIn his Request for Review,  Mr. Schmid asserted that the section 7(1)(k) \n\nexemption is inapplicable because disclosure of building plans would not compromise security.  \nBecause the plain language of section 7(1)(k) exempts from disclosure building plans for projects\nconstructed entirely with private funds regardless of whether or not disclosure would\ncompromise security,  this office asked the City to address whether the buildings in question were\nconstructed or developed in whole or in part with public funds.   The City's responded,  in relevant\npart: \n\nThe warehouses in question,  including the \" Amazon\" \n\nwarehouse were all privately constructed projects.   The\nwarehouses were constructed in the Gateway Commerce Center\ntool utilized\nEnterprise Zone which is an economic development\nthroughout many parts of the State.   The Gateway Commerce\nCenter Enterprise Zone is an intergovernmental\nincentive program\nthrough the State,  Madison County,  the City of Edwardsville and\nthe Village of Pontoon Beach that does not provide any direct\nfunding like in some TIF grant or sales tax rebate,  but rather abates\nlocal property taxes for a set period on eligible improvements\nconstructed in the enterprise zone and the state exempts sales tax\non building materials and certain utility taxes.   However,  these are\nonly incentives and do not constitute public funding in whole or in\npart[.][ 3] \n\nIn his reply, Mr. Schmid contended that the projects at issue should be considered publicly\nfunded because \" the public is, in some ways,  subsidizing these types of projects and thus has a\nright to know more specific details about the buildings their dollars are supporting.\" 4\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly.   DeLuna v. Burciaga,  223 Ill. 2d 49, 59\n2006).  \" The most reliable indicator of legislative intent is the statutory language,  given its plain\nand ordinary meaning.\"   Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E.2d 359, 372 ( 2012).  \"[ W] hen a statute lists several classes of persons\nor things but provides that the list is not exhaustive,  the class of unarticulated persons or things\nwill be interpreted as those ' others such like' the named persons or things.\"   Board of Trustees of\n\nIllinois, to [ Steve]  Silverman ( March 2, 2020).  \n\n3E- mail from Jeffrey S. Berkbigler,  City Attorney/ Corporation Counsel,  City of Edwardsville,  \n\n4E- mail from Eric Schmid,  Metro East Reporter,  St. Louis Public Radio,  to Steve Silverman\n\nMarch 15, 2022).  \n\n\fMr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 4\n\nSouthern Illinois Univ. v. Illinois Dep't of Human Rights,  159 Ill. 2d 206, 211 ( 1994).   In other\nwords,  the listed terms are examples of what the General Assembly intended the statute to cover.  \nSee Duffy v. Illinois Dep't of Human Rights, 354 Ill. App. 3d 236, 239 ( 4th Dist. 2004). \n\nFOIA does not define the term \" public funds.\"   Black' s Law Dictionary defines\np] ublic fund\"  as \"[ t]he revenue or money of a governmental body.\"   Black's Law Dictionary, \n743 ( 9th ed. 2009).   While subsidies in the form of tax breaks relieve or reduce future obligations\nfunds to\nto contribute to a governmental body's funding,  they do not directly convey government\nprivate entities.   Even if the definition of \"public fund\"  could be considered ambiguous because\nit lacks a temporal element,  the examples in section 7(1)(k) of projects constructed in whole or in\npart with public funds are dissimilar to the private property of a business which is inaccessible to\nthe public.   They consist of those that provide the public with (1) resources such as water and\nelectricity; ( 2) airports that provide the public with access to transportation; ( 3) sports stadiums\nfor public recreation;  and ( 4) convention centers for public events.   These examples,  as well as\nthe language in section 7(1)(k) that covers \" all government owned,  operated,  or occupied\nbuildings,\"  indicate that the General Assembly intended the exemption to apply to projects that\nare under government control or developed for the use or benefit of the general public.   \n\nAlthough no Illinois reviewing court appears to have interpreted the meaning of\npublic funds\"  in Illinois FOIA, the Arkansas Supreme Court considered whether leasing public\nproperty to a charitable organization for a nominal fee of $1 per year constituted the use of\npublic funds\"  under that state's version of FOIA. 5 American Red Cross v. Weatherford,  311\nArk. 656, 846 S.W.2d 641 ( Ark. 1993).   The Arkansas statute defined \" public records\"  as\ndocumentation \" of the performance of lack of performance of official functions which are or\nshould be carried out by a public official or employee,  a governmental agency,  or any other\nagency wholly or partially supported by public funds or expending public funds.\" 6 ( Emphasis\nadded.)   Based on the plain meaning of the term, the court construed \" public funds\"  as limited to\nmoneys belonging to government[ ]\"  and rejected as contrary to legislative intent a more\nexpansive interpretation: \n\nRefusal to read indirect government benefits or subsidies\n\ninto the term \" public funds\"  is not at odds with a liberal\nconstruction of the FOIA. Were we to construe \" public funds\"  to\ninclude an entirely separate and new category of government\nsupport,  we would be amending the FOIA to expand its application\nsignificantly.  * * *   Did the General Assembly,  without saying so, \n\n5Ark. Code Ann. §§ 25-19-101 to 25-19-107 ( West 1992).  \n\n6Ark. Code Ann. § 25-19-103(1) (West 1992).    \n\n\fr. Eric Schmid\nMr. Jeffrey S. Berkbigler\nMay 19, 2022\nPage 5\n\nintend the application of the FOIA to all private organizations\nwhich receive some government benefit,  no matter how minor? We\nthink not.  Weatherford,  311 Ark. at 661, 846 S.W.2d at 644. \n\nThe building plans at issue in this matter concern businesses that received tax\n\nfunds.   Further,  the examples in section 7(1)(k) for projects\n\nbreaks for developing private property.   It is undisputed that these projects did not benefit from\ndirect payments of government\ndeveloped in whole or in part with public funds concern property that is directly controlled by\nthe government or property or resources for the use or benefit of the general public.   Such\nprojects are readily distinguishable from the warehouses of private businesses for which Mr. \nSchmid seeks building plans.   Accordingly,  this office concludes that the City did not improperly\ndeny those records under section 7(1)(k) of FOIA. 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   If you have questions,  you may\ncontact me at (312)  814- 6756 or steven. silverman@ilag. gov. \n\nVery truly yours, \n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n69505 69506 f 71k proper mun\n\ndisclosure of the records would compromise security.    \n\n7Because that determination is dispositive,  it is not necessary for this office to determine whether\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Building permits and inspection records for commercial structures","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69505/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 19, 2022\n\nVia electronic mail\nMr. Eric Schmid\nMetro East Reporter\nSt. Louis Public Radio\n[street address redacted for site publication -- see original PDF]\neschmid@umsl. edu\n\nVia electronic mail\nMr. Jeffrey S. Berkbigler\nCity Attorney/ Corporation Counsel\nCity of Edwardsville, Illinois\njberkbigler@cityofedwardsville. com\n\nRE: FOIA Request for Review – 2022 PAC 69505 and 69506\n\nDear Mr. Schmid and Mr. Berkbigler: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Edwardsville (City) did not improperly deny\nrecords responsive to Mr. Eric Schmid's December 16, 2021, FOIA request. \n\nOn that date, Mr. Schmid, on behalf of St. Louis Public Radio, submitted a FOIA\n\nrequest to the City seeking copies of applications filed, permits issued, and inspections made\npursuant to City ordinances which pertain to any building within the Gateway Commerce\nEnterprise Zone and a M-1 Light Manufacturing Zone. On December 23, 2021, Mr. Schmid\nnarrowed his request to records concerning commercial, industrial, or office/ professional\nstructures within the 1270/ 1255/ IL111 interchange area. On January 19, 2022, the City provided\n\nresponsive records with certain information redacted under sections 7(1)(b) and 7(1)(c)1 of FOIA\nand denied structural and architectural building plans pursuant to section 7(1)(k) of FOIA. 2\n\nOn December 20, 2021, Mr. Schmid submitted a FOIA request to the City seeking\n\ncopies of applications filed, permits issued, and inspections made pursuant to a City ordinance\nwhich pertains to property at 3077 Gateway Commerce. On the same day, the City provided\nresponsive records with certain information redacted under sections 7(1)(b) and 7(1)(c) of FOIA\nand denied structural and architectural building plans pursuant to section 7(1)(k) of FOIA. \n\nOn January 20, 2022, Mr. Schmid submitted a Request for Review disputing the\ndenial of the building plans. He stated that the records he is seeking include building plans for\nan Amazon warehouse that collapsed after being hit by a tornado; he stated that he needs the\nrecords to verify Amazon officials' assertion that the building was in compliance with applicable\nbuilding codes and to determine whether surrounding warehouses were similarly designed and\nconstructed. On February 3, 2022, this office sent a copy of the Request for Review to the City\nand asked it provide copies of the records that were withheld for this office's confidential review\nand a detailed explanation of the factual and legal bases for the applicability of the section\n7(1)(k) exemption. On March 2, 2022, the City submitted its response. On March 7, 2022, this\noffice forwarded the City's written response to Mr. Schmid; he replied on March 15, 2022. \n\nDETERMINATION\n\nSection 7(1)(k) of FOIA exempts from disclosure: \n\nArchitects' plans, engineers' technical submissions, and\nother construction related technical documents for projects not\nconstructed or developed in whole or in part with public funds\nand the same for projects constructed or developed with public\nfunds, including but not limited to power generating and\ndistribution stations and other transmission and distribution\nfacilities, water treatment facilities, airport facilities, sport\nstadiums, convention centers, and all government owned, operated, \nor occupied buildings, but only to the extent that disclosure would\ncompromise security. (Emphasis added.) \n\n2021; 102-558, effective August 20, 2021. \n\n15 ILCS 140/ 7(1)(b), (1)(c) (West 2020), as amended by Public Acts 102- 038, effective June 25, \n\n102- 558, effective August 20, 2021. \n\n25 ILCS 140/ 7(1)(k) (West 2020), as amended by Public Acts 102- 038, effective June 25, 2021; \n\nIn his Request for Review, Mr. Schmid asserted that the section 7(1)(k) \n\nexemption is inapplicable because disclosure of building plans would not compromise security. \nBecause the plain language of section 7(1)(k) exempts from disclosure building plans for projects\nconstructed entirely with private funds regardless of whether or not disclosure would\ncompromise security, this office asked the City to address whether the buildings in question were\nconstructed or developed in whole or in part with public funds. The City's responded, in relevant\npart: \n\nThe warehouses in question, including the \" Amazon\" \n\nwarehouse were all privately constructed projects. The\nwarehouses were constructed in the Gateway Commerce Center\ntool utilized\nEnterprise Zone which is an economic development\nthroughout many parts of the State. The Gateway Commerce\nCenter Enterprise Zone is an intergovernmental\nincentive program\nthrough the State, Madison County, the City of Edwardsville and\nthe Village of Pontoon Beach that does not provide any direct\nfunding like in some TIF grant or sales tax rebate, but rather abates\nlocal property taxes for a set period on eligible improvements\nconstructed in the enterprise zone and the state exempts sales tax\non building materials and certain utility taxes. However, these are\nonly incentives and do not constitute public funding in whole or in\npart[.][ 3] \n\nIn his reply, Mr. Schmid contended that the projects at issue should be considered publicly\nfunded because \" the public is, in some ways, subsidizing these types of projects and thus has a\nright to know more specific details about the buildings their dollars are supporting.\" 4\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n2006). \" The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56, 969 N.E.2d 359, 372 (2012). \"[ W] hen a statute lists several classes of persons\nor things but provides that the list is not exhaustive, the class of unarticulated persons or things\nwill be interpreted as those ' others such like' the named persons or things.\" Board of Trustees of\n\nIllinois, to [ Steve] Silverman (March 2, 2020). \n\n3E- mail from Jeffrey S. Berkbigler, City Attorney/ Corporation Counsel, City of Edwardsville, \n\nSouthern Illinois Univ. v. Illinois Dep't of Human Rights, 159 Ill. 2d 206, 211 (1994). In other\nwords, the listed terms are examples of what the General Assembly intended the statute to cover. \nSee Duffy v. Illinois Dep't of Human Rights, 354 Ill. App. 3d 236, 239 (4th Dist. 2004). \n\nFOIA does not define the term \" public funds.\" Black's Law Dictionary defines\np] ublic fund\" as \"[ t]he revenue or money of a governmental body.\" Black's Law Dictionary, \n743 (9th ed. 2009). While subsidies in the form of tax breaks relieve or reduce future obligations\nfunds to\nto contribute to a governmental body's funding, they do not directly convey government\nprivate entities. Even if the definition of \"public fund\" could be considered ambiguous because\nit lacks a temporal element, the examples in section 7(1)(k) of projects constructed in whole or in\npart with public funds are dissimilar to the private property of a business which is inaccessible to\nthe public. They consist of those that provide the public with (1) resources such as water and\nelectricity; (2) airports that provide the public with access to transportation; (3) sports stadiums\nfor public recreation; and (4) convention centers for public events. These examples, as well as\nthe language in section 7(1)(k) that covers \" all government owned, operated, or occupied\nbuildings,\" indicate that the General Assembly intended the exemption to apply to projects that\nare under government control or developed for the use or benefit of the general public. \n\nAlthough no Illinois reviewing court appears to have interpreted the meaning of\npublic funds\" in Illinois FOIA, the Arkansas Supreme Court considered whether leasing public\nproperty to a charitable organization for a nominal fee of $1 per year constituted the use of\npublic funds\" under that state's version of FOIA. 5 American Red Cross v. Weatherford, 311\nArk. 656, 846 S.W.2d 641 (Ark. 1993). The Arkansas statute defined \" public records\" as\ndocumentation \" of the performance of lack of performance of official functions which are or\nshould be carried out by a public official or employee, a governmental agency, or any other\nagency wholly or partially supported by public funds or expending public funds.\" 6 (Emphasis\nadded.) Based on the plain meaning of the term, the court construed \" public funds\" as limited to\nmoneys belonging to government[ ]\" and rejected as contrary to legislative intent a more\nexpansive interpretation: \n\nRefusal to read indirect government benefits or subsidies\n\ninto the term \" public funds\" is not at odds with a liberal\nconstruction of the FOIA. Were we to construe \" public funds\" to\ninclude an entirely separate and new category of government\n\nintend the application of the FOIA to all private organizations\nwhich receive some government benefit, no matter how minor? We\nthink not. Weatherford, 311 Ark. at 661, 846 S.W.2d at 644. \n\nThe building plans at issue in this matter concern businesses that received tax\n\nfunds. Further, the examples in section 7(1)(k) for projects\n\nbreaks for developing private property. It is undisputed that these projects did not benefit from\ndirect payments of government\ndeveloped in whole or in part with public funds concern property that is directly controlled by\nthe government or property or resources for the use or benefit of the general public. Such\nprojects are readily distinguishable from the warehouses of private businesses for which Mr. \nSchmid seeks building plans. Accordingly, this office concludes that the City did not improperly\ndeny those records under section 7(1)(k) of FOIA. 7\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have questions, you may\ncontact me at (312) 814- 6756 or steven. silverman@ilag. gov. \n\nVery truly yours, \n\nSTEVE SILVERMAN\nBureau Chief\nPublic Access Bureau\n\n69505 69506 f 71k proper mun\n\ndisclosure of the records would compromise security. \n\n7 Because that determination is dispositive, it is not necessary for this office to determine whether"}
{"id":970,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-06-08","case_number":null,"request_numbers":["69508"],"title":"DeKalb County Housing Authority improperly withheld employee complaint records under 7(1)(c) and 7(1)(n)","filename":"69508, issued June 8, 2022.pdf","rel_path":null,"word_count":3058,"summary":"The requester sought complaints and investigatory reports regarding a named employee, which the DeKalb County Housing Authority denied under FOIA exemptions 7(1)(c) and 7(1)(n). The PAC determined the Authority failed to meet its burden of proof to justify the exemptions and directed the release of the records with limited redactions.","plain_summary":"A person requested records of complaints and investigations regarding a specific public employee from the DeKalb County Housing Authority, but the Authority denied the request. The Illinois Attorney General's Public Access Bureau reviewed the case and concluded that the Authority did not prove by clear and convincing evidence that the records were entirely exempt from disclosure. The Authority must release the records, but may redact the complainant's name and other identifying information to protect their privacy.","holding":"The DeKalb County Housing Authority improperly withheld the requested records because it failed to demonstrate by clear and convincing evidence that the records were exempt from disclosure.","legal_question":"Whether the DeKalb County Housing Authority properly invoked FOIA exemptions 7(1)(c) and 7(1)(n) to withhold records of complaints and investigatory findings concerning a public employee.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(n)"],"public_body":"DeKalb County Housing Authority","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records of complaints and investigatory findings regarding a named public employee.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_n/69508%2C%20issued%20June%208%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","employee misconduct","FOIA denial","redaction"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 8, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Vivian L. Bright\nOperations Director\nFOIA Officer\nDeKalb County Housing Authority\n310 North Sixth Street\nDeKalb,  Illinois 60115\nvbright@dekcohousing.com\n\nRE:  FOIA Request for Review – 2022 PAC 69508\n\nDear\n\nand Ms. Bright: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow,  the\nPublic Access Bureau concludes that the DeKalb County Housing Authority (Housing\nAuthority)  improperly withheld records responsive to\nFOIA request. \n\nJanuary 10, 2022, \n\nOn that date, \n\nsubmitted a FOIA request to the Housing Authority\n\nseeking copies of all complaints against a named employee and any reports of related\ninvestigatory findings from January 1, 2014, to January 10, 2022.  On January 18, 2022, the\nto sections 7(1)( c) and 7(1)( n) of FOIA ( 5 ILCS\nHousing Authority denied the request pursuant\n140/7(1)(c), (1)(n) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; \n102- 558,  effective August 20,  2021;  102- 694,  effective January 1, 2022).   On January 20,  2022, \nRequest for Review challenging the denial.  She contended that\nthis office received\n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 •  TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 2\n\ncomplaints alleging misconduct by public employees are not exempt in whole under sections\n7(1)( c)  or 7(1)( n),  as discussed in Watkins v. McCarthy1 and Kalven v. City of Chicago. 2\n\nOn February 1, 2022,  this office forwarded a copy of the Request for Review to\n\nthe Housing Authority and asked it to provide copies of the withheld records, together with a\ndetailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions.  On February 14, 2022, this office received the requested materials.  On February\n18,  2022,  this office forwarded a copy of the Housing Authority' s response to\nshe\nreplied on February 23, 2022.   \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\"  that the records are exempt\nfrom disclosure.  5 ILCS 140/1.2 (West 2020).  The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 (1997).  \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"   Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject' s\nright to privacy outweighs any legitimate public interest in\nobtaining the information.   The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.   \n\n12012 IL App (1st) 100632, 980 N.E.2d 733 (2012). \n\nDepartment of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). \n\n22014 IL App (1st) 121846, 7 N.E.3d 741 (2014), overruled in part on other grounds by Perry v. \n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 3\n\nA public body's assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by-case basis.   Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, 196 (1st Dist. \n2001).   The phrase \" clearly unwarranted invasion of personal privacy\"  evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\nthat standard has been met.   Schessler v. Department of Conservation,  256 Ill. App.  3d 198,  202\n4th Dist. 1994).  Illinois courts consider the following factors in determining whether disclosure\nof information would constitute an unwarranted invasion of personal privacy: \"( 1) the plaintiff' s\ninterest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal\nprivacy,  and ( 4) the availability of alternative means of obtaining the requested information.\"  \nNational Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n13 ( 1st Dist.  2010). \n\nApplying the four- factor analysis described above,  the Attorney General has\n\nissued two binding opinions concluding that records pertaining to complaints or allegations of\nmisconduct against public employees are generally not exempt from disclosure in their entireties\nunder section 7(1)(c) because such information bears on the performance of the employees' \npublic duties.   Ill. Att' y Gen.  Pub.  Acc.  Op.  No. 18- 018,  issued December 31, 2018,  at 6; Ill. \nAtt'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 6-13.  Further, \"there is a\nsignificant public interest in disclosure of alleged instances of workplace harassment and\ndiscrimination.\"  Ill. Att'y Gen. Pub. Acc. Op. No. 22-005, at 11.  The Attorney General has\nrecognized,  however,  that \"[ i]nformation identifying individuals who made complaints of this\nnature against public employees is highly personal; the subjects' privacy rights outweigh any\nlegitimate public interest in disclosure of their identities.\"   Ill. Att' y Gen.  Pub.  Acc.  Op.  No. 18-\n018, at 6.  The Attorney General has concluded that \"names and other discrete information in the\nreports that identify the complainants are exempt from disclosure pursuant to section 7(1)( c).\"  \nIll. Att'y Gen. Pub. Acc. Op. No. 18-018, at 6.  Further, in circumstances involving complaints of\nsexual misconduct or harassment\nhave legitimate privacy interests in the information they submit, but determined that \"[ r]edacting\nthe relatively minimal content that could be characterized as salacious and disclosing the\nremaining information concerning the alleged misconduct would strike the appropriate balance\nbetween the public interest and the complainant' s privacy interest.\"   Ill. Att' y Gen.  PAC Req. \nRev. Ltr. 52303, issued October 16, 2018, at 6 (investigation report pertaining to sexual\nharassment complaint not exempt from disclosure in its entirety pursuant\n\nin the workplace,  this office has recognized that complainants\n\nto section 7(1)( c)).   \n\nThe Housing Authority argued that the individual who filed the harassment\n\ncomplaint at issue \"has an interest in his/her personal information contained in his/her complaint\nnot being disclosed[,]\"  and that this \" complainant would have to waive this interest for the\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 4\n\nHACD to disclose the complaint under the FOIA request.\" 3 The Housing Authority contended\nthat the Illinois Supreme Court in Mancini Law Group,  P.C. v. Schaumburg Police Department, \n2021 IL 126675, held that \"an Illinois public body does not have the ability to waive an\nindividual' s interest in his or her personal\na FOIA request.\" 4 Additionally, the Housing Authority argued that the accused also has a\nprivacy interest in disclosure of the complaint.   In reply to that answer, \nmaintained\nthat the Housing Authority failed to show that the requested records are exempt from disclosure\nin their entireties. \n\ninformation that is contained in a document subject to\n\nThis office' s review of the confidential\n\nrecords confirmed that the Housing\n\nAuthority withheld documents concerning complaints made against one of its employees while\nshe was performing her public duties.   Disclosure of the complaint does not constitute an\nunwarranted invasion of the accused's privacy interests, even if the complaint is later determined\nto be unfounded.   See Gekas v. Williamson,  393 Ill. App.  3d 573,  586 ( 4th Dist.  2009) ( records\nconcerning alleged wrongdoing in the course of the deputy's public duties were subject to\ndisclosure regardless of whether the underlying allegations had merit).   As noted above, \nhowever, information identifying the individuals who make complaints of this nature against a\npublic employee is highly personal,  and the complainants'  privacy rights outweigh any legitimate\npublic interest in disclosure of their identities.  Accordingly, the name and other discrete\ninformation in the records that identify the complainant are exempt from disclosure under section\n7(1)(c) of FOIA.  Although the Housing Authority contended that the complainant has a privacy\ninterest in the information that she or he submitted,  the withheld records contain general\ndescriptions of alleged misconduct while on the job rather than highly personal details about the\ncomplainant.   Accordingly,  the Housing Authority has not sustained its burden of demonstrating\nby clear and convincing evidence that the records are exempt in whole pursuant to section\n7(1)( c). \n\nFurther,  the Housing Authority' s reliance on Mancini\n\nis misplaced because that\n\ncase did not address whether records were highly personal and therefore exempt pursuant to\nsection 7(1)( c), but rather,  whether a public body waived its ability to withhold records based on\na previous disclosure.  The matter of a waiver is not relevant here because there is no claim that\nthe Housing Authority previously disclosed unredacted copies of the requested records.   In\nMancini, the defendant police department furnished accident reports to the plaintiff requester, \ntelephone numbers,  home addresses,  and license plate\nwith driver' s license numbers,  personal\n\nGeneral, Public Access Bureau (February 14, 2022), at [3]. \n\n3Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 3]. \n\n4Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 5\n\nnumbers redacted pursuant to section 7(1)(b) and dates of birth and insurance policy account\nnumbers redacted pursuant\nto section 7(1)( c).   Mancini Law Group,  P.C. v. Schaumburg Police\nDepartment, 2021 IL 126675, ¶3.  The plaintiff argued that the defendant was precluded from\nredacting the reports because it provided the same records,  unredacted,  to LexisNexis.   Mancini, \n2021 IL 126675, ¶17.  In analyzing preclusion, the court examined Sherman v. United States\nDepartment of the Army,  244 F.3d 357 ( 5th Cir. 2001),  which addressed a similar claim.  \nMancini, 2021 IL 126675, ¶42.  In Sherman, the Fifth Circuit considered whether the United\nStates Army waived the ability to redact social security numbers ( SSNs)  of service personnel\nfrom award orders pursuant to Exemption 6 of the Federal FOIA when it disclosed that\ninformation to the public in other records.   Sherman,  244 F.3d at 360.   The Fifth Circuit\nconcluded there was no waiver, holding that \"only the individual whose informational privacy\ninterests are protected by exemption 6 can effect a waiver of those privacy interests when they\nare threatened by a[ ]  FOIA request.\"   Sherman, 244 F.3d at 363-64.  The Fifth Circuit further\nconcluded that the \" invasion of the informational privacy interest of individual soldiers in\ndisclosure of their SSNs would clearly be unwarranted in the absence of any public interest in\nthose SSNs\"  and thus that the SSNs were exempt under Exemption 6.  Sherman,  244 F.3d at\n366-67.  Adopting the reasoning in Sherman, the court concluded \"that an Illinois public body\ndoes not have the ability to waive an individual' s interest in his or her personal or private\ninformation that is contained in a document subject to a FOIA request.\"  Mancini, 2021 IL\n126675, ¶ 48.   Thus,  it held that the police department was not precluded from withholding\ninformation from the traffic accident reports pursuant to sections 7(1)(b) and 7(1)(c) of FOIA\ndespite having provided LexisNexis unredacted copies of the traffic accident reports.   Mancini, \n2021 IL 126675, ¶57. \n\nNotably, in Mancini, \"the circuit court already held that the Department carried its\n\nburden proving,  by clear and convincing evidence,  that the information at issue is exempt under\nsections 7(1)(b) and 7(1)(c).\"  Mancini, 2021 IL 126675, ¶50.5 Here, even if there was an\nalleged waiver,  the Housing Authority has not shown by clear and convincing evidence that the\nrecords at issue are exempt in whole pursuant to section 7(1)(c).  The exemption does not require\na public body to withhold all records that contain personal\nlanguage of section 7(1)(c) permits a public body to withhold records only if \"the subject's right\nto privacy outweighs any legitimate public interest in obtaining the information.\"     \n\ninformation.   Rather,  the plain\n\nSection 7(1)( n) of FOIA\n\nSection 7(1)( n) of FOIA exempts from disclosure \"[ r]ecords relating to a public\n\nbody's adjudication of employee grievances or disciplinary cases; however, this exemption shall\nnot extend to the final outcome of cases in which discipline is imposed.\"   FOIA does not define\n\nthe lower court's order.  Mancini, 2021 IL 126675, ¶50. \n\n5The plaintiff did not appeal that determination, and the Supreme Court found no reason to disturb\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 6\n\nthe term \"adjudication,\" but Black's Law Dictionary defines the word as \"[ t]he legal process of\nresolving a dispute;  the process of judicially deciding a case.\"   Black' s Law Dictionary 47 ( 9th\ned. 2009).  Black's Law Dictionary further defines an \" adjudication hearing\" as an \"[ a] gency\nproceeding in which a person' s rights and duties are decided after notice and an opportunity to be\nheard.\"   Black's Law Dictionary 788 (9th ed. 2009).  Applying similar definitions, the court in\nKalven construed an \" adjudication\"  for purposes of section 7(1)( n) as a \" formalized legal process\nthat results in a final and enforceable decision.\"  Kalven v. City of Chicago, 2014 IL App (1st) \n121846, ¶ 13,  7 N.E.3d 741,  745,  overruled in part on other grounds by Perry v. Dep' t of\nFinancial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018).  In Kalven, \nthe court emphasized that \"[ t]he phrase ' related to' must be read narrowly,\"  and held that the\nscope of section 7(1)(n) is limited to records generated during an adjudication; it does not\nencompass records of the underlying investigation that precede an adjudication.   Kalven,  2014 IL\nApp (1st) 121846, ¶22, 7 N.E.3d at 747.   \n\nIn its response to this office, the Housing Authority clarified that it had no reports\n\nresponsive to the request.   The\n\nof findings,  but it withheld a complaint of sexual harassment\nHousing Authority stated that the complaint was brought to the attention of the Board of\nCommissioners,  which then hired the law firm of Meyer &  Horning to investigate the facts\nsurrounding the alleged harassment and determine whether any employees violated the Housing\nAuthority' s personnel policies.   According to the Housing Authority,  the investigation was\nongoing and may result in employee discipline.  The Housing Authority contended that the\nwithheld records fall within the scope of section 7(1)( n) because they \" relate to employee\ndiscipline.\"6 The Housing Authority argued that the purpose of section 7(1)(n) is to permit\npublic bodies to conduct disciplinary investigations and that disclosing the complaint at this\nstage in the investigation would affect its ability to arrive at a conclusion.7\n\nIn her reply, \n\nnoted that under Kalven v. City of Chicago, only records\n\nof the adjudication of a complaint are entirely exempt.   She also noted that a former Housing\nAuthority employee had publicly shared on social media allegations of employee misconduct\nthat occurred in 2014 or 2015.  \nshould be completed and the documents released. \n\nspeculated that any investigation of that complaint\n\nUnder the plain language of section 7(1)(n), the exemption is limited to records\n\npertaining to the \" adjudication of employee grievances or disciplinary cases[.]\" ( Emphasis\nadded.)  In this matter, the Housing Authority has not demonstrated that it reached an\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 2]. \n\n6Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 2]. \n\n7Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 7\n\nadjudicatory stage of a disciplinary case.  Indeed, the Housing Authority confirmed that it was\nstill in the process of investigating the complaint and had not made a decision whether to pursue\nemployee discipline.  Records pertaining to the investigation of a misconduct complaint are\ndistinct from and precede an adjudication,  as discussed above.   The withheld records are\ncomparable to the Complaint Register (CR) documents at issue in Kalven as both involve records\nof an investigation into an allegation of misconduct by a public employee,  which may be used\nlater in a disciplinary adjudication.  Kalven, 2014 IL App (1st) 121846, ¶20, 7 N.E.3d at 747\nChicago Police Department\nto section 7(1)( n) \nbecause \" CRs are created to investigate reports of police misconduct, and any disciplinary\nadjudication that may take place as a result of the CRs comes later.\");  see also Ill. Att'y Gen. \nPub. Acc. Op. No. 13-011, at 8 (police chief's interviews with witnesses and other evidence\nsupporting city's decision to issue suspension not exempt under section 7(1)( n) where the city did\nnot demonstrate that its process culminated in a formalized legal proceeding constituting an\nadjudication\"  within the scope of the exemption).   Accordingly,  the Housing Authority has not\ndemonstrated by clear and convincing evidence that the withheld records fall within the scope of\nsection 7(1)( n). \n\nimproperly withheld CR documents pursuant\n\nIn accordance with the conclusions expressed in this determination,  this office\n\nrequests that the Housing Authority provide\nThe Housing Authority may redact the name,  personal e- mail address,  home address,  and\npersonal signature of the complainant pursuant to sections 7(1)(b) and 7(1)(c) of FOIA.    \n\nwith copies of the responsive records. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   This letter shall serve to close this matter.   If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\n69508 f 71c improper 71n improper co\n\n\fMs. Vivian L. Bright\nJune 8, 2022\nPage 8\n\ncc: \n\nVia electronic mail\nMr. Timothy F. Horning\nAttorney for DeKalb County Housing Authority\nMeyer &  Horning,  P.C. \n3400 North Rockton Avenue\nRockford,  Illinois 61103\nthmeyerhorning@aol.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Complaints and investigatory findings about a public employee","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69508/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 8, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Vivian L. Bright\nOperations Director\nFOIA Officer\nDeKalb County Housing Authority\n310 North Sixth Street\nDeKalb, Illinois 60115\nvbright@dekcohousing.com\n\nRE: FOIA Request for Review – 2022 PAC 69508\n\nDear\n\nand Ms. Bright: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the DeKalb County Housing Authority (Housing\nAuthority) improperly withheld records responsive to\nFOIA request. \n\nJanuary 10, 2022, \n\nOn that date, \n\nsubmitted a FOIA request to the Housing Authority\n\nseeking copies of all complaints against a named employee and any reports of related\ninvestigatory findings from January 1, 2014, to January 10, 2022. On January 18, 2022, the\nto sections 7(1)(c) and 7(1)(n) of FOIA (5 ILCS\nHousing Authority denied the request pursuant\n140/7(1)(c), (1)(n) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; \n102- 558, effective August 20, 2021; 102- 694, effective January 1, 2022). On January 20, 2022, \nRequest for Review challenging the denial. She contended that\nthis office received\n\ncomplaints alleging misconduct by public employees are not exempt in whole under sections\n7(1)(c) or 7(1)(n), as discussed in Watkins v. McCarthy1 and Kalven v. City of Chicago. 2\n\nOn February 1, 2022, this office forwarded a copy of the Request for Review to\n\nthe Housing Authority and asked it to provide copies of the withheld records, together with a\ndetailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions. On February 14, 2022, this office received the requested materials. On February\n18, 2022, this office forwarded a copy of the Housing Authority's response to\nshe\nreplied on February 23, 2022. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas: \n\nT]he disclosure of information that is highly personal or\nobjectionable to a reasonable person and in which the subject's\nright to privacy outweighs any legitimate public interest in\nobtaining the information. The disclosure of information that bears\non the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy. \n\n12012 IL App (1st) 100632, 980 N.E.2d 733 (2012). \n\nDepartment of Financial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). \n\n22014 IL App (1st) 121846, 7 N.E.3d 741 (2014), overruled in part on other grounds by Perry v. \n\nA public body's assertion that the release of information would constitute a clearly unwarranted\ninvasion of personal privacy is evaluated on a case- by-case basis. Chicago Journeymen\nPlumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, 196 (1st Dist. \n2001). The phrase \" clearly unwarranted invasion of personal privacy\" evinces a strict standard to\nclaim the exemption, and the burden is on the public body having charge of the record to prove\nthat standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202\n4th Dist. 1994). Illinois courts consider the following factors in determining whether disclosure\nof information would constitute an unwarranted invasion of personal privacy: \"(1) the plaintiff's\ninterest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal\nprivacy, and (4) the availability of alternative means of obtaining the requested information.\" \nNational Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n13 (1st Dist. 2010). \n\nApplying the four- factor analysis described above, the Attorney General has\n\nissued two binding opinions concluding that records pertaining to complaints or allegations of\nmisconduct against public employees are generally not exempt from disclosure in their entireties\nunder section 7(1)(c) because such information bears on the performance of the employees' \npublic duties. Ill. Att' y Gen. Pub. Acc. Op. No. 18- 018, issued December 31, 2018, at 6; Ill. \nAtt'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 6-13. Further, \"there is a\nsignificant public interest in disclosure of alleged instances of workplace harassment and\ndiscrimination.\" Ill. Att'y Gen. Pub. Acc. Op. No. 22-005, at 11. The Attorney General has\nrecognized, however, that \"[ i]nformation identifying individuals who made complaints of this\nnature against public employees is highly personal; the subjects' privacy rights outweigh any\nlegitimate public interest in disclosure of their identities.\" Ill. Att' y Gen. Pub. Acc. Op. No. 18-\n018, at 6. The Attorney General has concluded that \"names and other discrete information in the\nreports that identify the complainants are exempt from disclosure pursuant to section 7(1)(c).\" \nIll. Att'y Gen. Pub. Acc. Op. No. 18-018, at 6. Further, in circumstances involving complaints of\nsexual misconduct or harassment\nhave legitimate privacy interests in the information they submit, but determined that \"[ r]edacting\nthe relatively minimal content that could be characterized as salacious and disclosing the\nremaining information concerning the alleged misconduct would strike the appropriate balance\nbetween the public interest and the complainant's privacy interest.\" Ill. Att' y Gen. PAC Req. \nRev. Ltr. 52303, issued October 16, 2018, at 6 (investigation report pertaining to sexual\nharassment complaint not exempt from disclosure in its entirety pursuant\n\nin the workplace, this office has recognized that complainants\n\nto section 7(1)(c)). \n\nThe Housing Authority argued that the individual who filed the harassment\n\ncomplaint at issue \"has an interest in his/her personal information contained in his/her complaint\nnot being disclosed[,]\" and that this \" complainant would have to waive this interest for the\n\nHACD to disclose the complaint under the FOIA request.\" 3 The Housing Authority contended\nthat the Illinois Supreme Court in Mancini Law Group, P.C. v. Schaumburg Police Department, \n2021 IL 126675, held that \"an Illinois public body does not have the ability to waive an\nindividual's interest in his or her personal\na FOIA request.\" 4 Additionally, the Housing Authority argued that the accused also has a\nprivacy interest in disclosure of the complaint. In reply to that answer, \nmaintained\nthat the Housing Authority failed to show that the requested records are exempt from disclosure\nin their entireties. \n\ninformation that is contained in a document subject to\n\nThis office's review of the confidential\n\nrecords confirmed that the Housing\n\nAuthority withheld documents concerning complaints made against one of its employees while\nshe was performing her public duties. Disclosure of the complaint does not constitute an\nunwarranted invasion of the accused's privacy interests, even if the complaint is later determined\nto be unfounded. See Gekas v. Williamson, 393 Ill. App. 3d 573, 586 (4th Dist. 2009) (records\nconcerning alleged wrongdoing in the course of the deputy's public duties were subject to\ndisclosure regardless of whether the underlying allegations had merit). As noted above, \nhowever, information identifying the individuals who make complaints of this nature against a\npublic employee is highly personal, and the complainants' privacy rights outweigh any legitimate\npublic interest in disclosure of their identities. Accordingly, the name and other discrete\ninformation in the records that identify the complainant are exempt from disclosure under section\n7(1)(c) of FOIA. Although the Housing Authority contended that the complainant has a privacy\ninterest in the information that she or he submitted, the withheld records contain general\ndescriptions of alleged misconduct while on the job rather than highly personal details about the\ncomplainant. Accordingly, the Housing Authority has not sustained its burden of demonstrating\nby clear and convincing evidence that the records are exempt in whole pursuant to section\n7(1)(c). \n\nFurther, the Housing Authority's reliance on Mancini\n\nis misplaced because that\n\ncase did not address whether records were highly personal and therefore exempt pursuant to\nsection 7(1)(c), but rather, whether a public body waived its ability to withhold records based on\na previous disclosure. The matter of a waiver is not relevant here because there is no claim that\nthe Housing Authority previously disclosed unredacted copies of the requested records. In\nMancini, the defendant police department furnished accident reports to the plaintiff requester, \ntelephone numbers, home addresses, and license plate\nwith driver's license numbers, personal\n\nGeneral, Public Access Bureau (February 14, 2022), at [3]. \n\n3 Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 3]. \n\n4 Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nnumbers redacted pursuant to section 7(1)(b) and dates of birth and insurance policy account\nnumbers redacted pursuant\nto section 7(1)(c). Mancini Law Group, P.C. v. Schaumburg Police\nDepartment, 2021 IL 126675, ¶3. The plaintiff argued that the defendant was precluded from\nredacting the reports because it provided the same records, unredacted, to LexisNexis. Mancini, \n2021 IL 126675, ¶17. In analyzing preclusion, the court examined Sherman v. United States\nDepartment of the Army, 244 F.3d 357 (5th Cir. 2001), which addressed a similar claim. \nMancini, 2021 IL 126675, ¶42. In Sherman, the Fifth Circuit considered whether the United\nStates Army waived the ability to redact social security numbers (SSNs) of service personnel\nfrom award orders pursuant to Exemption 6 of the Federal FOIA when it disclosed that\ninformation to the public in other records. Sherman, 244 F.3d at 360. The Fifth Circuit\nconcluded there was no waiver, holding that \"only the individual whose informational privacy\ninterests are protected by exemption 6 can effect a waiver of those privacy interests when they\nare threatened by a[ ] FOIA request.\" Sherman, 244 F.3d at 363-64. The Fifth Circuit further\nconcluded that the \" invasion of the informational privacy interest of individual soldiers in\ndisclosure of their SSNs would clearly be unwarranted in the absence of any public interest in\nthose SSNs\" and thus that the SSNs were exempt under Exemption 6. Sherman, 244 F.3d at\n366-67. Adopting the reasoning in Sherman, the court concluded \"that an Illinois public body\ndoes not have the ability to waive an individual's interest in his or her personal or private\ninformation that is contained in a document subject to a FOIA request.\" Mancini, 2021 IL\n126675, ¶ 48. Thus, it held that the police department was not precluded from withholding\ninformation from the traffic accident reports pursuant to sections 7(1)(b) and 7(1)(c) of FOIA\ndespite having provided LexisNexis unredacted copies of the traffic accident reports. Mancini, \n2021 IL 126675, ¶57. \n\nNotably, in Mancini, \"the circuit court already held that the Department carried its\n\nburden proving, by clear and convincing evidence, that the information at issue is exempt under\nsections 7(1)(b) and 7(1)(c).\" Mancini, 2021 IL 126675, ¶50.5 Here, even if there was an\nalleged waiver, the Housing Authority has not shown by clear and convincing evidence that the\nrecords at issue are exempt in whole pursuant to section 7(1)(c). The exemption does not require\na public body to withhold all records that contain personal\nlanguage of section 7(1)(c) permits a public body to withhold records only if \"the subject's right\nto privacy outweighs any legitimate public interest in obtaining the information.\" \n\ninformation. Rather, the plain\n\nSection 7(1)(n) of FOIA\n\nSection 7(1)(n) of FOIA exempts from disclosure \"[ r]ecords relating to a public\n\nbody's adjudication of employee grievances or disciplinary cases; however, this exemption shall\nnot extend to the final outcome of cases in which discipline is imposed.\" FOIA does not define\n\nthe lower court's order. Mancini, 2021 IL 126675, ¶50. \n\n5 The plaintiff did not appeal that determination, and the Supreme Court found no reason to disturb\n\nthe term \"adjudication,\" but Black's Law Dictionary defines the word as \"[ t]he legal process of\nresolving a dispute; the process of judicially deciding a case.\" Black's Law Dictionary 47 (9th\ned. 2009). Black's Law Dictionary further defines an \" adjudication hearing\" as an \"[ a] gency\nproceeding in which a person's rights and duties are decided after notice and an opportunity to be\nheard.\" Black's Law Dictionary 788 (9th ed. 2009). Applying similar definitions, the court in\nKalven construed an \" adjudication\" for purposes of section 7(1)(n) as a \" formalized legal process\nthat results in a final and enforceable decision.\" Kalven v. City of Chicago, 2014 IL App (1st) \n121846, ¶ 13, 7 N.E.3d 741, 745, overruled in part on other grounds by Perry v. Dep' t of\nFinancial and Professional Regulation, 2018 IL 122349, 106 N.E.3d 1016 (2018). In Kalven, \nthe court emphasized that \"[ t]he phrase ' related to' must be read narrowly,\" and held that the\nscope of section 7(1)(n) is limited to records generated during an adjudication; it does not\nencompass records of the underlying investigation that precede an adjudication. Kalven, 2014 IL\nApp (1st) 121846, ¶22, 7 N.E.3d at 747. \n\nIn its response to this office, the Housing Authority clarified that it had no reports\n\nresponsive to the request. The\n\nof findings, but it withheld a complaint of sexual harassment\nHousing Authority stated that the complaint was brought to the attention of the Board of\nCommissioners, which then hired the law firm of Meyer & Horning to investigate the facts\nsurrounding the alleged harassment and determine whether any employees violated the Housing\nAuthority's personnel policies. According to the Housing Authority, the investigation was\nongoing and may result in employee discipline. The Housing Authority contended that the\nwithheld records fall within the scope of section 7(1)(n) because they \" relate to employee\ndiscipline.\"6 The Housing Authority argued that the purpose of section 7(1)(n) is to permit\npublic bodies to conduct disciplinary investigations and that disclosing the complaint at this\nstage in the investigation would affect its ability to arrive at a conclusion.7\n\nIn her reply, \n\nnoted that under Kalven v. City of Chicago, only records\n\nof the adjudication of a complaint are entirely exempt. She also noted that a former Housing\nAuthority employee had publicly shared on social media allegations of employee misconduct\nthat occurred in 2014 or 2015. \nshould be completed and the documents released. \n\nspeculated that any investigation of that complaint\n\nUnder the plain language of section 7(1)(n), the exemption is limited to records\n\npertaining to the \" adjudication of employee grievances or disciplinary cases[.]\" (Emphasis\nadded.) In this matter, the Housing Authority has not demonstrated that it reached an\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 2]. \n\n6 Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (February 14, 2022), at [ 2]. \n\n7 Letter from Timothy F. Horning, Meyer and Horning, P.C., to Teresa Lim, Assistant Attorney\n\nadjudicatory stage of a disciplinary case. Indeed, the Housing Authority confirmed that it was\nstill in the process of investigating the complaint and had not made a decision whether to pursue\nemployee discipline. Records pertaining to the investigation of a misconduct complaint are\ndistinct from and precede an adjudication, as discussed above. The withheld records are\ncomparable to the Complaint Register (CR) documents at issue in Kalven as both involve records\nof an investigation into an allegation of misconduct by a public employee, which may be used\nlater in a disciplinary adjudication. Kalven, 2014 IL App (1st) 121846, ¶20, 7 N.E.3d at 747\nChicago Police Department\nto section 7(1)(n) \nbecause \" CRs are created to investigate reports of police misconduct, and any disciplinary\nadjudication that may take place as a result of the CRs comes later.\"); see also Ill. Att'y Gen. \nPub. Acc. Op. No. 13-011, at 8 (police chief's interviews with witnesses and other evidence\nsupporting city's decision to issue suspension not exempt under section 7(1)(n) where the city did\nnot demonstrate that its process culminated in a formalized legal proceeding constituting an\nadjudication\" within the scope of the exemption). Accordingly, the Housing Authority has not\ndemonstrated by clear and convincing evidence that the withheld records fall within the scope of\nsection 7(1)(n). \n\nimproperly withheld CR documents pursuant\n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the Housing Authority provide\nThe Housing Authority may redact the name, personal e- mail address, home address, and\npersonal signature of the complainant pursuant to sections 7(1)(b) and 7(1)(c) of FOIA. \n\nwith copies of the responsive records. \n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\ncc: \n\nVia electronic mail\nMr. Timothy F. Horning\nAttorney for DeKalb County Housing Authority\nMeyer & Horning, P.C. \n3400 North Rockton Avenue\nRockford, Illinois 61103\nthmeyerhorning@aol.com"}
{"id":971,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-03-23","case_number":null,"request_numbers":["69562"],"title":"City of Chicago Mayor's Office partially violated FOIA in redacting text messages","filename":"69562, issued March 23, 2022.pdf","rel_path":null,"word_count":2919,"summary":"The Chicago Tribune requested text messages between Mayor Lori Lightfoot and various officials, but the Mayor's Office redacted portions citing FOIA exemptions 7(1)(c) and 7(1)(f). The PAC determined that while most redactions were proper, the City improperly redacted certain discrete information.","plain_summary":"A reporter requested text messages from the Mayor of Chicago, but the City blacked out parts of the messages claiming they were private or not related to public business. The Attorney General's office reviewed the records and decided that most of the redacted information was properly withheld, but that the City must release some specific parts that were improperly withheld. The City is now required to provide a revised response to the reporter.","holding":"The City of Chicago Mayor's Office improperly redacted certain discrete information from the requested text messages while correctly applying exemptions to the remainder.","legal_question":"Whether the City of Chicago Mayor's Office properly applied FOIA exemptions 7(1)(c) and 7(1)(f) to redact text messages between the Mayor and other officials.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)"],"public_body":"City of Chicago Mayor's Office","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought text messages between Mayor Lori Lightfoot and various officials and prominent persons during August 2021.","ocr_status":"ok","ocr_quality":92.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/69562%2C%20issued%20March%2023%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["text messages","Mayor","FOIA exemption","deliberative process","privacy"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 23,  2022\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune.com\n\nVia electronic mail\nMr. Tom Skelton\nFOIA Officer\nCity of Chicago Mayor' s Office\n[street address redacted for site publication -- see original PDF]\nmofoia@cityofchicago.org\n\nRE:  FOIA Request for Review – 2022 PAC 69562\n\nDear Mr. Pratt and Mr. Skelton: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons explained below,  the\nPublic Access Bureau concludes that while most of the information the City of Chicago Mayor's\nOffice ( Mayor' s Office)  redacted in response to a FOIA request from Mr. Gregory Pratt is\nexempt from disclosure, the Mayor's Office improperly redacted certain discrete information. \n\nOn September 7, 2021, Mr. Pratt submitted a FOIA request to the Mayor's Office\non behalf of the Chicago Tribune seeking copies of text messages between Mayor Lori Lightfoot\nand various named officials and other prominent persons in August 2021.  On December 20, \n2021,  the Mayor' s Office completed its response,  providing Mr. Pratt with copies of certain\nresponsive records but denying the request in part pursuant to sections 7(1)(c) and 7(1)(f) of\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 2\n\nFOIA.1 On January 24, 2022, Mr. Pratt submitted the above-referenced Request for Review\ncontesting the partial denial as to around 90 of the text message exchanges. 2\n\nOn January 26, 2022,  this office sent a copy of the Request for Review to the\n\nMayor's Office and asked it to provide this office with unredacted copies of the disputed e-mail\nthreads for this office' s confidential\nexplanation of the legal and factual bases for redacting or withholding information from those\nthreads.   On February 14, 2022,  the Mayor' s Office furnished those materials.   On February 16, \n2022, Mr. Pratt submitted a reply.   \n\nreview.   This office also requested a detailed written\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 ( West 2020);  see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body \"has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/1.2 (West 2020). \n\nPublic Records\n\nSection 2(c) of FOIA defines \" public records\"  as: \n\nall records,  reports,  forms,  writings,  letters,  memoranda,  books, \npapers, maps, photographs, microfilms, cards, tapes, recordings, \nelectronic data processing records,  electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business,  regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. \n\nIn accordance with this definition, the court in City of Champaign v. Madigan, 2013 IL App\n4th)  120662, ¶ 38, 992 N.E.2d 629,  638 ( 2013)  stated that \" to qualify as a 'public record'  under\nFOIA, a communication must (1) 'pertain[ ]  to the transaction of public business' and have either\nbeen ( 2) prepared by, (3) prepared for, (4) used by ( 5) received by, ( 6) possessed by, or (7) \n\n2021; 102-558, effective August 20, 2021. \n\n15 ILCS 140/7(1)(c), (1)(f) (West 2020), as amended by Public Acts 102-038, effective June 25, \n\neight, and some of the separately-enumerated text messages are found within the same threads.   \n\n2Mr. Pratt enumerated the text messages he contested, but did not designate a thread with number\n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 3\n\ncontrolled by a public body.\"  A record pertains to the transaction of public business when it\npertain[ s]  to 'business or community interests as opposed to private affairs.'   Indeed,  FOIA is\nnot concerned with an individual's private affairs.\"  City of Champaign, 2013 IL App (4th) \n120662, ¶ 31, 992 N.E.2d at 637 ( internal citation omitted). \n\nThe Mayor' s Office asserted that most of the disputed text messages are not public\nrecords subject to disclosure pursuant to FOIA because \" they do not pertain to the transaction of\npublic business,  nor were they prepared by, prepared for, used by, received by, possessed by, or\ncontrolled by a public body.\" 3 The Mayor's Office argued that the text messages are personal\nexchanges that \" do not have any nexus to the transaction of public business.\" 4 The Mayor' s\nOffice further claimed: \n\nMessages from Mayor Lightfoot's personal phone are\n\nunlike those from a city- issued device. * * *  These messages are\nthe private exchanges between Mayor Lightfoot and the various\nofficials.  There is no presumption that the messages should be\ndisclosed just because the sender or recipient happens to be a\npublic official.[ 5] \n\nIn his reply, Mr. Pratt confirmed that he is \"only seeking records related to public\n\nbusiness and the mayor' s official capacity.\" 6 Still, he disputed the argument\nMayor Lightfoot's personal device should be subject to a higher standard for disclosure: \n\nthat messages on\n\nMost of the texts here, if not all of them, come from her personal\ndevice,  but that doesn' t mean the bar should in some way be\nhigher. It's long-settled case law that it doesn't matter the device\nused,  just the content generated.  \n\nThe fact is, Mayor Lightfoot uses her personal device to\n\nconduct public business. She does that extensively. Per records the\ncity has released,  I think the majority of city aldermen use Mayor\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [3]. \n\n3Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau, Office of the Attorney General ( February 14, 2022),  at [ 3]. \n\n4Letter from Tom Skelton,  FOIA Officer – Office of the Mayor, to Joshua Jones,  Deputy Bureau\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [3].  \n\n5Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\n6E- mail from Gregory Royal Pratt to Joshua Jones (February 16, 2022).  \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 4\n\nLightfoot's personal phone to contact her and she uses it to contact\nthem. ( It may even be the vast majority.)  Gov.  Pritzker uses it, too, \nas do State's Attorney Kim Foxx, Speaker Welch and many many\nothers. ( Every time Mayor Lightfoot has contacted me about news\nstories, she has used the personal device as well.)[7]  \n\nThis office's review confirmed that most of the redacted messages do not pertain\n\nto the transaction of public business.   Instead,  these messages either pertain to political matters\nthat are distinct from transacting public business (19, 20, 91) or aspects of peoples' personal lives\nthat constitute private affairs ( examples include 17, 24, 25, 30, 61, 71).   Many of these text\nmessages also fall within the scope of section 7(1)(c), as discussed further below.  Whether\nMayor Lightfoot' s personal phone was used to transmit these messages has no bearing,  however, \non whether they constitute public records.  It is well settled that any text messages sent by the\nCity' s mayor pertaining to the transaction of public business are subject to disclosure,  regardless\nof the device used.  Better Gov't Ass'n v. City of Chicago Office of Mayor, 2020 IL App (1st) \n190038, ¶ 19, 169 N.E.3d 1066,  1073 ( 2020). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"   An \" unwarranted invasion of personal privacy\"  is defined as \" the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject' s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.\"  Moreover, \"[ t]he disclosure of information that bears on the public duties of\npublic employees and officials shall not be considered an invasion of personal privacy.\"   The\nGeneral Assembly's use of the term \"clearly\" in the phrase \" clearly unwarranted invasion of\npersonal privacy\"  evinces a strict standard to claim the exemption.   Schessler v. Dep' t of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). \n\nIn support of the applicability of section 7(1)(c), the Mayor's Office argued: \n\nMany of these text messages address health matters and\n\nfamily matters of these figures.  The public' s interest in disclosure\nof these records is very low as the records address matters that are\ncommonly considered a matter of personal privacy.  Someone' s\nhealth and the health of their family is a matter of personal privacy\n\n7E- mail from Gregory Royal Pratt to Joshua Jones ( February 16, 2022).   \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 5\n\nregardless of whether they are a public figure. Many of these text\nmessages are simply personal remarks and greetings between\nMayor Lightfoot and these local figures. Again, there is very little\npublic interest in disclosure of these records.  Additionally,  since\nthese records come from Mayor Lightfoot's personal cell phone, \nthere would be a high degree of invasion of personal privacy to\ndisclose these records.[8] \n\nThe Mayor's Office also asserted that Mr. Pratt's speculations about the redacted content were\nincorrect,  addressing several particular e- mail threads. \n\nIn his reply,  Mr. Pratt confirmed that he was not seeking health information about\nanyone.  Mr. Pratt questioned, however, whether Mayor Lightfoot may view text messages about\nnominally personal matters,  such as a birthday celebration,  to be \" an extension of her job as\nmayor[,]\"  as \" they're communicating about an event that really is a city function for her and that\nshe' s being invited to because she' s mayor.\" 9 Additionally,  he stated:  \n\nI do also have concerns about the mayor' s office redacting personal\ngreetings and well wishes. For instance, I think they redact \"happy\nbirthday\" sometimes, and that's kind of silly, since the mayor isn't\nshy about her birthday and so I don' t really see the unwarranted\ninvasion of personal privacy there from someone wishing her a\nhappy birthday.  I also think they redact stuff like Merry Christmas\nor Happy Thanksgiving at times. For the purposes of this FOIA\nrequest for review I will say that I don' t care in these instances\nabout those redactions – but I will say it's bizarre to me that the\ncity wastes valuable time and energy making them,  since its\nredactability is dubious and it probably casts doubt on a lot of\ngenuinely harmless messages,  leading us to this time- intensive\nexercise.[10] \n\nThis office's review confirmed that much of the redacted information concerns\n\npersonal health issues,  condolences,  holiday greetings,  vacation plans,  and other matters that\nwould intrude on the parties' personal lives if disclosed.  The redacted messages that consist of\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at 2. \n\n8Letter from Tom Skelton,  FOIA Officer – Office of the Mayor, to Joshua Jones,  Deputy Bureau\n\n9E- mail from Gregory Royal Pratt to Joshua Jones ( February 16, 2022). \n\n10E- mail from Gregory Royal Pratt to Joshua Jones (February 16, 2022).  \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 6\n\npurely personal content are exempt from disclosure under section 7(1)(c); examples include\nitems 2, 4, 12,  21,  34,  47,  69,  75, 79, and 86.   \n\nIn contrast to the responsive messages that solely relate to highly personal\n\nrelationships with Mayor Lightfoot.   Unlike messages that just\n\ninformation such as a medical diagnosis, however, some of the redactions also concern the nature\nof the parties'  professional\ninvolve personal friendships, messages concerning working with Mayor Lightfoot in her official\ncapacity bear on the correspondents'  public duties.   The Mayor' s Office redacted discrete\ninformation from items including 32, 33, 39, 45, 66, 72, and 83 that cannot be considered highly\npersonal because the information pertains to public business of the Office of the Mayor.   With\nrespect to some of the messages, there is no FOIA exemption for jokes pertaining to public\nduties and public business;  the scope of section 7(1)( c) specifically excludes information that\nbears on the public duties of public officials, and the notion that a remark was made in a jest does\nnot somehow place the record of the communication beyond FOIA' s disclosure requirements\nwhen it relates to the Mayor's official capacity.  Accordingly, although the Mayor's Office\ndemonstrated that a significant portion of the responsive text messages is exempt from disclosure\nunder section 7(1)(c), the Mayor's Office did not meet the strict standard of proving by clear and\nconvincing evidence that all of the messages it claims to be exempt under section 7(1)( c) fall\nwithin the scope of the exemption. \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"  The\nsection 7(1)( f) exemption applies to \" inter-  and intra- agency predecisional and deliberative\nmaterial.\"  Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003).  Section 7(1)(f) \nis \" intended to protect the communications process and encourage frank and open discussion\namong agency employees before a final decision is made.\"   Harwood, 344 Ill. App. 3d at 248.  \nIn order to qualify for the deliberative process exemption,  a document must be both\npredecisional in the sense that it is actually antecedent to the adoption of an agency policy, and\ndeliberative in the sense that it is actually related to the process by which policies are\nformulated.\"  Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (1st) 170455, \n\n28, 109 N.E.3d 872,  880 ( 2018). \n\nIn its response to this office, the Mayor's Office stated that in limited instances, it\n\nredacted information pursuant to section 7(1)( f).  The Mayor' s Office stated that the Public\nAccess Bureau had previously determined that the same types of records, in which the mayor and\nan alderman confer to formulate action,  are exempt from disclosure.   Ill. Att'y Gen.  PAC Req. \n\n\fMr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 7\n\nRev. Ltr. 65053, issued February 17, 2021, at 4 (\"Intra–agency communications that reflect the\nprocess of formulating action are exempt from disclosure under section 7(1)( f) of FOIA.\").   The\nMayor's Office stated: \n\nThe text messages here concern the formulation of\n\ngovernmental actions that impact the Mayor' s Office and City\nCouncil. Specifically, Text Exchange #13 is about the Executive\nPowers ordinance that the City Council passed during the\nbeginning of the COVID-19 Pandemic and includes information\nregarding a third- party' s health matters.  Text Exchange # 23 is\nabout a then pending City Council ordinance. The text messages\nwere part of the formulating of these ordinances and were about\ngovernmental actions that concern both the Mayor and City\nCouncil.  They were thus an intra- agency communication that\nreflect the process of formulating governmental actions.[11] \n\nIn his reply, Mr. Pratt reiterated his skepticism that all of the redactions under\n\nsection 7(1)( f) are proper based on past FOIA disputes with the Mayor' s Office.   \n\nThis office's review confirmed that item 23 consists of a predecisional and\n\ndeliberative exchange within the scope of section 7(1)( f).  As the Mayor' s Office asserted,  this\ncorrespondence is akin to the correspondence between an alderman and the Mayor that this\noffice determined to be exempt in Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 65053.   The redacted\ninformation in item 13 is also predecisional and deliberative in its entirety.  The Mayor's Office\nacknowledged that these messages contain discussion concerning an ordinance that had already\npassed but there is a forward-looking component that is inextricably intertwined with the\ndiscussion of the approved ordinance.   Disclosure of the redacted information would provide\ninsight into the Mayor's Office's process of formulating future action.  Accordingly, this office\nconcludes that the Mayor' s Office sustained its burden of proving by clear and convincing\nevidence that the information it redacted pursuant to section 7(1)(f) is exempt from disclosure in\nits entirety. \n\nIn accordance with these conclusions,  this office requests that the Mayor' s Office\nissue a revised response to Mr. Pratt's request, disclosing the information this office identified as\nnon- exempt above.   \n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [4].  \n\n11Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\n\fr. Gregory Pratt\nMr. Tom Skelton\nMarch 23, 2022\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   This file is closed.   If you have questions,  please\ncontact me at joshua.jones@ilag.gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n69562 f not a pub rec 71c proper improper 71f proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A mayor's text messages with city officials","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69562/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 23, 2022\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune.com\n\nVia electronic mail\nMr. Tom Skelton\nFOIA Officer\nCity of Chicago Mayor's Office\n[street address redacted for site publication -- see original PDF]\nmofoia@cityofchicago.org\n\nRE: FOIA Request for Review – 2022 PAC 69562\n\nDear Mr. Pratt and Mr. Skelton: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that while most of the information the City of Chicago Mayor's\nOffice (Mayor's Office) redacted in response to a FOIA request from Mr. Gregory Pratt is\nexempt from disclosure, the Mayor's Office improperly redacted certain discrete information. \n\nOn September 7, 2021, Mr. Pratt submitted a FOIA request to the Mayor's Office\non behalf of the Chicago Tribune seeking copies of text messages between Mayor Lori Lightfoot\nand various named officials and other prominent persons in August 2021. On December 20, \n2021, the Mayor's Office completed its response, providing Mr. Pratt with copies of certain\nresponsive records but denying the request in part pursuant to sections 7(1)(c) and 7(1)(f) of\n\nFOIA.1 On January 24, 2022, Mr. Pratt submitted the above-referenced Request for Review\ncontesting the partial denial as to around 90 of the text message exchanges. 2\n\nOn January 26, 2022, this office sent a copy of the Request for Review to the\n\nMayor's Office and asked it to provide this office with unredacted copies of the disputed e-mail\nthreads for this office's confidential\nexplanation of the legal and factual bases for redacting or withholding information from those\nthreads. On February 14, 2022, the Mayor's Office furnished those materials. On February 16, \n2022, Mr. Pratt submitted a reply. \n\nreview. This office also requested a detailed written\n\nANALYSIS\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). \n\nPublic Records\n\nSection 2(c) of FOIA defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, \npapers, maps, photographs, microfilms, cards, tapes, recordings, \nelectronic data processing records, electronic communications, \nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. \n\nIn accordance with this definition, the court in City of Champaign v. Madigan, 2013 IL App\n4th) 120662, ¶ 38, 992 N.E.2d 629, 638 (2013) stated that \" to qualify as a 'public record' under\nFOIA, a communication must (1) 'pertain[ ] to the transaction of public business' and have either\nbeen (2) prepared by, (3) prepared for, (4) used by (5) received by, (6) possessed by, or (7) \n\n2021; 102-558, effective August 20, 2021. \n\n15 ILCS 140/7(1)(c), (1)(f) (West 2020), as amended by Public Acts 102-038, effective June 25, \n\neight, and some of the separately-enumerated text messages are found within the same threads. \n\n2 Mr. Pratt enumerated the text messages he contested, but did not designate a thread with number\n\ncontrolled by a public body.\" A record pertains to the transaction of public business when it\npertain[ s] to 'business or community interests as opposed to private affairs.' Indeed, FOIA is\nnot concerned with an individual's private affairs.\" City of Champaign, 2013 IL App (4th) \n120662, ¶ 31, 992 N.E.2d at 637 (internal citation omitted). \n\nThe Mayor's Office asserted that most of the disputed text messages are not public\nrecords subject to disclosure pursuant to FOIA because \" they do not pertain to the transaction of\npublic business, nor were they prepared by, prepared for, used by, received by, possessed by, or\ncontrolled by a public body.\" 3 The Mayor's Office argued that the text messages are personal\nexchanges that \" do not have any nexus to the transaction of public business.\" 4 The Mayor's\nOffice further claimed: \n\nMessages from Mayor Lightfoot's personal phone are\n\nunlike those from a city- issued device. * * * These messages are\nthe private exchanges between Mayor Lightfoot and the various\nofficials. There is no presumption that the messages should be\ndisclosed just because the sender or recipient happens to be a\npublic official.[ 5] \n\nIn his reply, Mr. Pratt confirmed that he is \"only seeking records related to public\n\nbusiness and the mayor's official capacity.\" 6 Still, he disputed the argument\nMayor Lightfoot's personal device should be subject to a higher standard for disclosure: \n\nthat messages on\n\nMost of the texts here, if not all of them, come from her personal\ndevice, but that doesn' t mean the bar should in some way be\nhigher. It's long-settled case law that it doesn't matter the device\nused, just the content generated. \n\nThe fact is, Mayor Lightfoot uses her personal device to\n\nconduct public business. She does that extensively. Per records the\ncity has released, I think the majority of city aldermen use Mayor\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [3]. \n\n3 Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [ 3]. \n\n4 Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [3]. \n\n5 Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nLightfoot's personal phone to contact her and she uses it to contact\nthem. (It may even be the vast majority.) Gov. Pritzker uses it, too, \nas do State's Attorney Kim Foxx, Speaker Welch and many many\nothers. (Every time Mayor Lightfoot has contacted me about news\nstories, she has used the personal device as well.)[7] \n\nThis office's review confirmed that most of the redacted messages do not pertain\n\nto the transaction of public business. Instead, these messages either pertain to political matters\nthat are distinct from transacting public business (19, 20, 91) or aspects of peoples' personal lives\nthat constitute private affairs (examples include 17, 24, 25, 30, 61, 71). Many of these text\nmessages also fall within the scope of section 7(1)(c), as discussed further below. Whether\nMayor Lightfoot's personal phone was used to transmit these messages has no bearing, however, \non whether they constitute public records. It is well settled that any text messages sent by the\nCity's mayor pertaining to the transaction of public business are subject to disclosure, regardless\nof the device used. Better Gov't Ass'n v. City of Chicago Office of Mayor, 2020 IL App (1st) \n190038, ¶ 19, 169 N.E.3d 1066, 1073 (2020). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" An \" unwarranted invasion of personal privacy\" is defined as \" the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject's right to privacy outweighs any legitimate public interest in obtaining the\ninformation.\" Moreover, \"[ t]he disclosure of information that bears on the public duties of\npublic employees and officials shall not be considered an invasion of personal privacy.\" The\nGeneral Assembly's use of the term \"clearly\" in the phrase \" clearly unwarranted invasion of\npersonal privacy\" evinces a strict standard to claim the exemption. Schessler v. Dep' t of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). \n\nIn support of the applicability of section 7(1)(c), the Mayor's Office argued: \n\nMany of these text messages address health matters and\n\nfamily matters of these figures. The public's interest in disclosure\n\nregardless of whether they are a public figure. Many of these text\nmessages are simply personal remarks and greetings between\nMayor Lightfoot and these local figures. Again, there is very little\npublic interest in disclosure of these records. Additionally, since\nthese records come from Mayor Lightfoot's personal cell phone, \nthere would be a high degree of invasion of personal privacy to\ndisclose these records.[8] \n\nThe Mayor's Office also asserted that Mr. Pratt's speculations about the redacted content were\nincorrect, addressing several particular e- mail threads. \n\nIn his reply, Mr. Pratt confirmed that he was not seeking health information about\nanyone. Mr. Pratt questioned, however, whether Mayor Lightfoot may view text messages about\nnominally personal matters, such as a birthday celebration, to be \" an extension of her job as\nmayor[,]\" as \" they're communicating about an event that really is a city function for her and that\nshe's being invited to because she's mayor.\" 9 Additionally, he stated: \n\nI do also have concerns about the mayor's office redacting personal\ngreetings and well wishes. For instance, I think they redact \"happy\nbirthday\" sometimes, and that's kind of silly, since the mayor isn't\nshy about her birthday and so I don' t really see the unwarranted\ninvasion of personal privacy there from someone wishing her a\nhappy birthday. I also think they redact stuff like Merry Christmas\nor Happy Thanksgiving at times. For the purposes of this FOIA\nrequest for review I will say that I don' t care in these instances\nabout those redactions – but I will say it's bizarre to me that the\ncity wastes valuable time and energy making them, since its\nredactability is dubious and it probably casts doubt on a lot of\ngenuinely harmless messages, leading us to this time- intensive\nexercise.[10] \n\nThis office's review confirmed that much of the redacted information concerns\n\npersonal health issues, condolences, holiday greetings, vacation plans, and other matters that\nwould intrude on the parties' personal lives if disclosed. The redacted messages that consist of\n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at 2. \n\n8 Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\npurely personal content are exempt from disclosure under section 7(1)(c); examples include\nitems 2, 4, 12, 21, 34, 47, 69, 75, 79, and 86. \n\nIn contrast to the responsive messages that solely relate to highly personal\n\nrelationships with Mayor Lightfoot. Unlike messages that just\n\ninformation such as a medical diagnosis, however, some of the redactions also concern the nature\nof the parties' professional\ninvolve personal friendships, messages concerning working with Mayor Lightfoot in her official\ncapacity bear on the correspondents' public duties. The Mayor's Office redacted discrete\ninformation from items including 32, 33, 39, 45, 66, 72, and 83 that cannot be considered highly\npersonal because the information pertains to public business of the Office of the Mayor. With\nrespect to some of the messages, there is no FOIA exemption for jokes pertaining to public\nduties and public business; the scope of section 7(1)(c) specifically excludes information that\nbears on the public duties of public officials, and the notion that a remark was made in a jest does\nnot somehow place the record of the communication beyond FOIA's disclosure requirements\nwhen it relates to the Mayor's official capacity. Accordingly, although the Mayor's Office\ndemonstrated that a significant portion of the responsive text messages is exempt from disclosure\nunder section 7(1)(c), the Mayor's Office did not meet the strict standard of proving by clear and\nconvincing evidence that all of the messages it claims to be exempt under section 7(1)(c) fall\nwithin the scope of the exemption. \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption applies to \" inter- and intra- agency predecisional and deliberative\nmaterial.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). Section 7(1)(f) \nis \" intended to protect the communications process and encourage frank and open discussion\namong agency employees before a final decision is made.\" Harwood, 344 Ill. App. 3d at 248. \nIn order to qualify for the deliberative process exemption, a document must be both\npredecisional in the sense that it is actually antecedent to the adoption of an agency policy, and\ndeliberative in the sense that it is actually related to the process by which policies are\nformulated.\" Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (1st) 170455, \n\n28, 109 N.E.3d 872, 880 (2018). \n\nIn its response to this office, the Mayor's Office stated that in limited instances, it\n\nredacted information pursuant to section 7(1)(f). The Mayor's Office stated that the Public\nAccess Bureau had previously determined that the same types of records, in which the mayor and\nan alderman confer to formulate action, are exempt from disclosure. Ill. Att'y Gen. PAC Req. \n\nRev. Ltr. 65053, issued February 17, 2021, at 4 (\"Intra–agency communications that reflect the\nprocess of formulating action are exempt from disclosure under section 7(1)(f) of FOIA.\"). The\nMayor's Office stated: \n\nThe text messages here concern the formulation of\n\ngovernmental actions that impact the Mayor's Office and City\nCouncil. Specifically, Text Exchange #13 is about the Executive\nPowers ordinance that the City Council passed during the\nbeginning of the COVID-19 Pandemic and includes information\nregarding a third- party's health matters. Text Exchange # 23 is\nabout a then pending City Council ordinance. The text messages\nwere part of the formulating of these ordinances and were about\ngovernmental actions that concern both the Mayor and City\nCouncil. They were thus an intra- agency communication that\nreflect the process of formulating governmental actions.[11] \n\nIn his reply, Mr. Pratt reiterated his skepticism that all of the redactions under\n\nsection 7(1)(f) are proper based on past FOIA disputes with the Mayor's Office. \n\nThis office's review confirmed that item 23 consists of a predecisional and\n\ndeliberative exchange within the scope of section 7(1)(f). As the Mayor's Office asserted, this\ncorrespondence is akin to the correspondence between an alderman and the Mayor that this\noffice determined to be exempt in Ill. Att'y Gen. PAC Req. Rev. Ltr. 65053. The redacted\ninformation in item 13 is also predecisional and deliberative in its entirety. The Mayor's Office\nacknowledged that these messages contain discussion concerning an ordinance that had already\npassed but there is a forward-looking component that is inextricably intertwined with the\ndiscussion of the approved ordinance. Disclosure of the redacted information would provide\ninsight into the Mayor's Office's process of formulating future action. Accordingly, this office\nconcludes that the Mayor's Office sustained its burden of proving by clear and convincing\nevidence that the information it redacted pursuant to section 7(1)(f) is exempt from disclosure in\nits entirety. \n\nIn accordance with these conclusions, this office requests that the Mayor's Office\nissue a revised response to Mr. Pratt's request, disclosing the information this office identified as\nnon- exempt above. \n\nChief, Public Access Bureau, Office of the Attorney General (February 14, 2022), at [4]. \n\n11 Letter from Tom Skelton, FOIA Officer – Office of the Mayor, to Joshua Jones, Deputy Bureau\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have questions, please\ncontact me at joshua.jones@ilag.gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n69562 f not a pub rec 71c proper improper 71f proper mun"}
{"id":972,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-18","case_number":null,"request_numbers":["69899"],"title":"Lake County State's Attorney's Office improperly redacted former employee's name from emails under FOIA","filename":"69899, issued July 18, 2023.pdf","rel_path":null,"word_count":3521,"summary":"The requester sought emails between four individuals, which the Lake County State's Attorney's Office partially denied under FOIA exemptions 7(1)(c), 7(1)(f), and 7(1)(m). The PAC determined the office improperly redacted the records and requested they provide the requester with the records subject only to permissible redactions.","plain_summary":"The requester sought e-mails between four specified individuals, which the state's attorney's office partially withheld to protect a former employee's name and negotiations with the public defender's office. The PAC determined that the employee's name bore on the performance of public duties and was improperly redacted, and that communications between the two adversarial offices did not qualify as deliberative or attorney-client material, though some information about mental-health records, victims, and confidential sources could still be redacted. The state's attorney's office was directed to release the records subject only to those narrower, permissible redactions.","holding":"The Lake County State's Attorney's Office improperly redacted the name of a former employee from records responsive to the FOIA request.","legal_question":"Whether the Lake County State's Attorney's Office properly applied FOIA exemptions 7(1)(c), 7(1)(f), and 7(1)(m) to withhold emails between specified individuals.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(f)","7(1)(m)"],"public_body":"Lake County State's Attorney's Office","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"email records","subject_description":"The request sought emails sent between four specified individuals over a three-month period.","ocr_status":"llm_reocr","ocr_quality":88.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/69899%2C%20issued%20July%2018%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","redaction","FOIA exemptions","State's Attorney"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 18, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Melanie K. Nelson\nChief Deputy, Civil Trial Division\nLake County State' s Attorney' s Office\n18 North County Street, 3rd Floor\nWaukegan,  Illinois 60085\nmnelson@lakecountyil.gov\n\nRE:  FOIA Request for Review – 2022 PAC 69899\n\nDear\n\nand Ms. Nelson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons that follow,  the\nPublic Access Bureau concludes that the Lake County State's Attorney's Office (State's\nAttorney' s Office)  improperly redacted records responsive to\n3, 2021, FOIA request. \n\nDecember\n\nOn that date, \n\nsubmitted a FOIA request to the State's Attorney's Office\nseeking copies of e- mails sent between four specified individuals between the dates of December\n1, 2020, and March 1, 2021.  On December 17, 2021, the State's Attorney's Office granted\n\nrequest in part and denied it in part pursuant\n\nto sections 7(1)( c),  7(1)( f), and 7(1)( m) of\n\nFOIA (5 ILCS 140/7(1)(c), (1)(f), (1)(m) (West 2020), as amended by Public Acts 102-038, \neffective June 25, 2021;  102- 558,  effective August 20, 2021).   On February 14, 2022, \nsubmitted the above- referenced Request for Review disputing the partial denial of his request. \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 2\n\nOn February 25, 2022,  this office forwarded a copy of the Request for Review to\n\nthe State's Attorney's Office and asked it to provide unredacted copies of the responsive records, \nas well as a detailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions. \n\nOn March 16, 2022, the State's Attorney's Office provided this office with a\n\nwith a supplemental\n\nwritten response.   As part of that response,  it provided\ncontaining fewer redactions.  The State's Attorney's Office stated that the remaining withheld\nto section 7(1)( c) and e-\ninformation consisted of the name of an employee withheld pursuant\nmail communications consisting of negotiations between the State's Attorney's Office and Public\nDefender' s Office withheld pursuant\nOffice further argued that certain types of information within these e-mails also is exempt\npursuant to sections 7(1)( a),  7(1)( c),  and 7(1)( d)( iv) of FOIA ( 5 ILCS 140/ 7(1)( a), ( 1)( c), \n1)(d)(iv) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). \n\nto sections 7(1)( f) and 7(1)( m).  The State' s Attorney' s\n\nresponse\n\nOn March 16,  2022,  this office forwarded a copy of the State' s Attorney' s Office' s\n\nresponse to\n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health,  218 Ill. 2d 390,  415 ( 2006).   A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure.   5 ILCS 140/ 1.2 (West 2020).   The exemptions from disclosure are to be\nnarrowly construed.  Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 ( 1997). \n\nSection 7(1)( c)  of FOIA\n\nSection 7(1)( c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\"   Section 7(1)( c) defines \" unwarranted invasion of personal\nprivacy\" as \" the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject' s right to privacy outweighs any legitimate public interest in\nobtaining the information.\"  Additionally, section 7(1)(c) provides that \"[ t]he disclosure of\ninformation that bears on the public duties of public employees and officials shall not be\nconsidered an invasion of personal privacy.\"  (Emphasis added.)   \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 3\n\nIt is undisputed that the State' s Attorney' s Office redacted the name of a former\n\nemployee from e-mail exchanges between the State's Attorney and the Lake County Public\nDefender.   The context indicates that these two public officials were discussing the progress of\nassistant state's attorneys implementing the new State's Attorney's policies while that former\nemployee was still employed by the State' s Attorney' s Office.   Because the e- mail discussion\ninvolves a public employee's actions while the individual was performing public duties as an\nemployee,  the exchange,  including the employee' s name,  unequivocally bears on the\nperformance of that employee's public duties.  Therefore, the disclosure of the name would not\nconstitute an unwarranted invasion of the employee' s personal privacy under the plain language\nof section 7(1)(c).  Accordingly, this office concludes that the State's Attorney's Office\nimproperly withheld the name of the employee pursuant to section 7(1)( c) of FOIA. \n\nSection 7(1)( f) of FOIA\n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"  Under\nthe exemption, \"[ t]he government\ngive- and- take leading up to its final decisions.\"   Chicago Tribune Co.  v. Cook County Assessor' s\nOffice, 2018 IL App (1st) 170455, ¶29, 109 N.E.3d 872, 880 (2018). \n\nis entitled to withhold documents that reflect the agency' s\n\nIn its response to this office, the State's Attorney's Office cited Harwood v. \n\nMcDonough,  344 Ill. App.  3d 242 ( 1st Dist.  2003)  and State Journal- Register v. University of\nIllinois Springfield, 2013 IL App (4th) 120881, 994 N.E.2d 705 (2013) in support of its assertion\nthat the e- mails between the State' s Attorney' s Office and Public Defender' s Office are exempt\nfrom disclosure under section 7(1)(f) because they are \" part of a predecisional deliberation of\nplea negotiations.\" 1\n\nThe Appellate Court,  First District,  explained in Harwood that section 7(1)( f)  \n\napplies to \"inter- and intra-agency predecisional and deliberative material,\" and is \"intended to\nprotect the communications process and encourage frank and open discussion among agency\nemployees before a final decision is made.\"  ( Emphasis added.)  Harwood, 344 Ill. App. 3d at\n247- 48.  \" Inter\"  is defined as \"[ a] mong;  between[,]\" 2 while \" intra\"  is defined as \"[ i]n; near; \n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 4. \n\n1Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's\n\n2Black' s Law Dictionary 728 (5th ed. 1979). \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 4\n\nwithin.\" 3 Thus,  communications generally must be exchanged among or between public bodies\nor occur internally within a public body to meet the threshold requirement of section 7(1)(f).  \nFisher v. Office of the Illinois Attorney General,  2021 IL App ( 1st)  200225, ¶ 19,  195 N.E.3d\n719, __ (2021) (\" In order to be exempt under this provision, the responsive materials must be\nboth ( 1) inter or intra agency and ( 2) predecisional and deliberative.\").  \n\nThe Harwood court did hold that predecisional deliberative communications\nbetween public bodies and third party consultants also may be withheld pursuant to section\n7(1)( f), but only if the consultants' \" analyses and recommendation ‘ played essentially the same\npart in an agency's process of deliberation as documents prepared by agency personnel might\nhave done.'\"   Harwood,  344 Ill. App.  3d at 248,  citing Dep' t of Interior v. Klamath Water Users\nProtective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001).  In Klamath, the U.S. Supreme\nCourt considered whether the U.S. Department of Interior properly withheld,  pursuant to section\n552(b)(5) of the federal FOIA,4 records of communications with a Native-American Indian tribe\nconcerning a plan to allocate water resources.   The court stated that the exemption may shield\npre-decisional material prepared by a third party consultant on behalf of a public body if the third\nparty \" does not represent an interest of its own,  or the interest of any other client,  when it advises\nthe agency that hires it.  Its only obligations are to truth and its sense of what good judgment\ncalls for, and in those respects the consultant\ndo.\"   Klamath Water Users Protective Ass' n, 532 U.S. at 11,  121 S. Ct. at 1067.   However, \ncommunications with third parties that have independent interests and that stand to benefit from\nthe public body' s final decision cannot be characterized as intra- agency communications.  \nKlamath, 532 U.S. at 13-15, 121 S. Ct. at 1068-69.  The court concluded that the records in\nquestion did not fall within the scope of the deliberative process exemption because the tribe\nrepresented its own interests rather than the interests of the Department of Interior.  Klamath, \n532 U.S.  at 15, 121 S.  Ct. at 1069.   Likewise,  the Attorney General has issued a binding opinion\nconcluding that an attorney's letter to a public body on behalf of a client with independent\ninterests in a legal dispute was not exempt from disclosure pursuant to section 7(1)( f) of FOIA.  \nIll. Att'y Gen. Pub. Acc. Op. No. 22-013, issued November 21, 2022, at 15.  Collectively, these\nprecedents stand for the principle that the deliberative process exemption does not allow the\nwithholding of records a public body exchanged with an entity that was representing its own\nindependent\nthe public body.  Construing these authorities in a different context, this office has determined\nthat communications between public bodies with opposing interests are similarly not exempt\nfrom disclosure pursuant to section 7(1)(f).  See Ill. Att'y Gen. PAC Req. Rev. Ltr. 60989, issued\n\ninterests,  rather than the public body' s interests,  when it exchanged the records with\n\nfunctions just as an employee would be expected to\n\n3Black' s Law Dictionary 738 (5th ed. 1979). \n\n4Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2000)) applies to \"inter-agency or intra-\n\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\nwith the agency[.]\"  \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 5\n\nApril 3, 2020,  at 4 (\" Rather than jointly deliberating in a collaborative manner,  the parties were\nrepresented by separate counsel and actively negotiating as adversaries over the terms of that\nagreement.\").  \n\nis 'to protect the communications process and encourage frank and open\n\nHowever,  in State Journal- Register,  2013 IL App ( 4th)  120881, ¶  26, 994 N.E.2d\nat 713, a panel of the Appellate Court, Fourth District, held that a letter sent to a public body by\nan attorney representing a potentially adverse party fell within the scope of section 7(1)( f).  The\ncourt quoted the holding in Harwood that \"the purpose of exempting predecisional and\ndeliberative material\ndiscussion among agency employees before a final decision is made.'\"  ( Emphasis added.)  State\nJournal Register,  2013 IL App ( 4th)  120881, ¶ 26, 994 N.E.2d at 713 ( quoting Harwood,  344 Ill. \nApp. 3d at 248)).  Nevertheless, that court then went on to hold that portions of a letter sent to\nthe University by an attorney representing an individual who was considering filing suit against\nthe University were exempt from disclosure pursuant to section 7(1)(f) because the information\nin the letter \" would have undoubtedly been relied upon by [ the University]  in formulating a plan\nor policy for settling potential litigation with the victim.\"  State Journal-Register, 2013 IL App\n4th)  120881, ¶ 29,  994 N.E.2d at 714 ( quoting Harwood,  344 Ill. App.  3d at 248).   In reaching\nthis conclusion, the court did not address the issue of whether the letter was \"inter- or intra-\nagency\"  material,  or distinguish the holdings in Harwood and Klamath that limit the deliberative\nprocess exemption to communications with outside parties who represent\npublic body.  Because the opinion in State-Journal Register does not provide any explanation of\nhow a letter from opposing counsel could be construed as \" inter-  and intra- agency predecisional\nor deliberative material\" as described in Harwood and Klamath, we are compelled instead to\nfollow the weight of authority and apply the analysis in those cases when considering the e- mails\nexchanged between the State's Attorney's Office and Public Defender's Office. \n\nthe interests of the\n\nWhile the State's Attorney's Office and Public Defender's Office shared a goal of\nreaching plea agreements in the cases discussed in the contested e- mails,  both public bodies and\ntheir clients had opposing interests as to the terms of possible plea agreements and the subject\nmatter of the e- mails.   The State' s Attorney' s Office represents the public in prosecuting crimes, \nwhile the Public Defender's Office advocates for its clients' interests; they are adversarial parties.  \nAccordingly,  the withheld correspondence between those offices does not constitute inter-  or\nintra-agency communications of the State's Attorney's Office within the scope of the deliberative\nprocess exemption,  and the State' s Attorney' s Office has not sustained its burden of\ndemonstrating that the communications are exempt from disclosure in whole or in part pursuant\nto section 7(1)( f) of FOIA. \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 6\n\nSection 7(1)( m) of FOIA\n\nSection 7(1)( m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation,  and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney-client privilege are within the scope of\n\nsection 7(1)( m).  People ex rel. Ulrich v. Stukel,  294 Ill. App.  3d 193,  201 ( 1st Dist.  1997).   A\nparty asserting that a communication to an attorney is protected by the attorney-client privilege\nmust show that:  \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices;  and ( 3) it remained confidential.\"   Cangelosi v. Capasso,  366 Ill. App.  3d 225,  228 ( 2d\nDist. 2006).  Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney,  but also to the advice of an attorney to his client.\"   In re Marriage of Granger,  197 Ill. \nApp.  3d 363,  374 ( 5th Dist.  1990);  see also People v. Radojcic,  2013 IL 114197, ¶ 40,  998\nN.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that the privilege is a two-way street, \nprotecting both the client' s communications to the attorney and the attorney' s advice to the\nclient.\").  A public body that withholds records under section 7(1)(m) \"can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.)  Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d\n456,  470 ( 2003). \n\nThe work product doctrine \" applies to documents prepared by either client or\n\nattorney in anticipation of litigation or trial.\"  Dalen v. Ozite Corp., 230 Ill. App. 3d 18, 27 (2nd\nDist.  1992).   The protection of the doctrine,  however,  is waived by voluntary disclosure to a third\nparty.  Dalen, 230 Ill. App. 3d at 29 (company waived work product doctrine by providing\nopposing counsel access to its files even though company' s attorney' s claimed disclosure of\nmemorandum containing work product was inadvertent because he did not have time to purge\nthe memorandum from the files);  see also Eagle Compressors,  Inc.,  v. HEC Liquidating Corp., \n206 F.R.D. 474, 479 (N.D. Ill. 2002) (\" The voluntary disclosure of attorney work product to an\nadversary waives work product protection.\") \n\nIn its response to this office,  the State' s Attorney' s Office argued that e-mails from\nthe Public Defender's Office that include the mental impressions of assistant public defenders in\n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 7\n\npursuit of plea negotiations are exempt despite being shared with the State' s Attorney' s Office, \nwhich is a third party adversary. \n\nThe State's Attorney's Office does not have, nor did it claim to have, an attorney-\n\nclient relationship with the Public Defender' s Office.   Section 7(1)( m) of FOIA applies to\ncommunications between a public body and an attorney * * *  representing the public body\" and\nto work product prepared \" upon the request of an attorney advising the public body.\"   The\nattorney-client privilege and work product doctrine do not apply to communications or materials\nexchanged by adversarial parties.   \n\nThe State' s Attorney' s Office additionally argued,  citing Nelson v. County of\n\nKendall, 2014 IL 116303, and Newman, Raiz &  Shelmadine, LLC. v. Brown, 394 Ill. App. 3d\n602 ( 1st Dist.  2009)  that disclosure of this material would be incongruous with FOIA because the\nPublic Defender's Office is not subject to FOIA.  Because this FOIA request concerns public\nrecords maintained by the State' s Attorney' s Office,  it is not relevant whether the Public\nDefender's Office would be subject to FOIA.  The definition of \"public records\" in section 2(c) \nof FOIA5 ( 5 ILCS 140/ 2(c) ( West 2020))  expressly applies to all records in the possession of the\nState's Attorney's Office pertaining to the transaction of public business.  This definition does not\ncontain an exception for records exchanged with third parties that are not public bodies subject to\nthe requirements of FOIA.   Further,  while the cases cited by the State' s Attorney' s Office\nconfirmed that the judiciary is not subject to FOIA, none of them addressed whether public\ndefenders'  offices are part of the judiciary.   This office has previously determined that public\ndefenders' offices are not part of the judiciary and are subject to the requirements of FOIA.  See\nIll. Att'y Gen.  PAC Req.  Rev.  Ltr. 39421,  issued January 8, 2019,  at 6 (\" the Public Defender' s\nOffice is not part of the judicial branch of government, for purposes of FOIA.  Instead, it is a\ncounty office,  which falls under the definition of a \" public body\"  in section 2(a)  of FOIA.\"). \nAccordingly, this office concludes that the State's Attorney's Office has not sustained its burden\nof demonstrating that any portions of the contested records exempt from disclosure pursuant to\nsection 7(1)(m) of FOIA. \n\n5Section 2(c) of FOIA defines \" public records\"  as: \n\nall records, reports, forms, writings, letters, memoranda, books, papers, maps, \nphotographs, microfilms, cards, tapes, recordings, electronic data processing\nrecords, electronic communications, recorded information and all other\ndocumentary materials pertaining to the transaction of public business, \nregardless of physical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or under the\ncontrol of any public body. \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 8\n\nPotential Redactions Pursuant\n\nto Sections 7(1)( a),  7(1)( c),  and 7(1)( d)(iv) \n\nIn its response to this office,  the State' s Attorney' s Office asserted that unspecified\n\npieces of information contained within the withheld records would also be exempt pursuant to\nsections \"( 7)( 1)( a)( confidentiality provisions of the Mental Health and Developmental\nDisabilities Confidentiality Act, 740 ILCS 110/3); 7(1)(d)(iv) (withholding information\nidentifying complaining witnesses)  and 7(1)( c)( personal privacy relating to victims of crime).\" 6\nAlthough the State's Attorney's Office did not specify which records or portions of records may\nbe exempt under these provisions,  this office' s review of the withheld records confirms that\ndiscrete portions of some of the withheld e-mails would be subject to permissible redactions. \n\nSection 7(1)(a) exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\"  Section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act\nprovides: \n\nAll records and communications shall be confidential and\n\nshall not be disclosed except as provided in this Act.  Unless\notherwise expressly provided for in this Act, records and\ncommunications made or created in the course of providing mental\nhealth or developmental disabilities services shall be protected\nfrom disclosure regardless of whether the records and\ncommunications are made or created in the course of a therapeutic\nrelationship.    \n\nSection 2 of the Mental Health Confidentiality Act ( 740 ILCS 110/ 2 (West 2014)) \n\ndefines \"record,\" in pertinent part, as \" any record kept by a therapist or by an agency in the\ncourse of providing mental health or developmental disabilities service to a recipient concerning\nthe recipient and the services provided.\"  To the extent that information within the requested\nrecords falls within this category,  the State' s Attorney' s Office is specifically prohibited from\ndisclosing such information except in accordance with the terms of that act. \n\nSection 7(1)(c) exempts from disclosure \"[ p]ersonal information contained within\n\npublic records,  the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy.\"  Section 7(1)(d)(iv) exempts from disclosure: \n\n6Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's\n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 3-\n4. \n\n\fMs. Melanie K. Nelson\nJuly 18, 2023\nPage 9\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would:  \n\nunavoidably disclose the identity of a confidential source, \n\niv) \nconfidential information furnished only by the confidential source, \nor persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies[.] \n\nAccordingly, the State's Attorney's Office may redact the identities of victims, witnesses and\nother third parties who were not arrested or charged with crimes.   See,  for example,  Dillon v. \nDOJ, 102 F. Supp. 3d 272, 295 (D.C. Cir. 2015) (disclosure of the names of third parties in law\nenforcement\n\nrecords would constitute an unwarranted invasion of personal privacy).  \n\nIn accordance with the conclusions expressed in this determination,  this office\n\nrequests that the State's Attorney's Office provide\nwith copies of the withheld\nrecords,  subject only to permissible redactions.   If any information is redacted,  the State' s\nAttorney's Office must provide\ndetailed factual basis for the applicability of any asserted exemptions. \n\nwith a supplemental written response that includes a\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at ( 773)  590- 7878 or benjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J.  SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n79899 f 71c improper 71f improper 71m improper sao\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 18, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Melanie K. Nelson\nChief Deputy, Civil Trial Division\nLake County State's Attorney's Office\n18 North County Street, 3rd Floor\nWaukegan, Illinois 60085\nmnelson@lakecountyil.gov\n\nRE: FOIA Request for Review – 2022 PAC 69899\n\nDear\n\nand Ms. Nelson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Lake County State's Attorney's Office (State's\nAttorney's Office) improperly redacted records responsive to\n3, 2021, FOIA request. \n\nDecember\n\nOn that date, \n\nsubmitted a FOIA request to the State's Attorney's Office\nseeking copies of e- mails sent between four specified individuals between the dates of December\n1, 2020, and March 1, 2021. On December 17, 2021, the State's Attorney's Office granted\n\nrequest in part and denied it in part pursuant\n\nto sections 7(1)(c), 7(1)(f), and 7(1)(m) of\n\nFOIA (5 ILCS 140/7(1)(c), (1)(f), (1)(m) (West 2020), as amended by Public Acts 102-038, \neffective June 25, 2021; 102- 558, effective August 20, 2021). On February 14, 2022, \nsubmitted the above- referenced Request for Review disputing the partial denial of his request. \n\nOn February 25, 2022, this office forwarded a copy of the Request for Review to\n\nthe State's Attorney's Office and asked it to provide unredacted copies of the responsive records, \nas well as a detailed explanation of the factual and legal bases for the applicability of the asserted\nexemptions. \n\nOn March 16, 2022, the State's Attorney's Office provided this office with a\n\nwith a supplemental\n\nwritten response. As part of that response, it provided\ncontaining fewer redactions. The State's Attorney's Office stated that the remaining withheld\nto section 7(1)(c) and e-\ninformation consisted of the name of an employee withheld pursuant\nmail communications consisting of negotiations between the State's Attorney's Office and Public\nDefender's Office withheld pursuant\nOffice further argued that certain types of information within these e-mails also is exempt\npursuant to sections 7(1)(a), 7(1)(c), and 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(1)(a), (1)(c), \n1)(d)(iv) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). \n\nto sections 7(1)(f) and 7(1)(m). The State's Attorney's\n\nresponse\n\nOn March 16, 2022, this office forwarded a copy of the State's Attorney's Office's\n\nresponse to\n\nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/ 1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \" unwarranted invasion of personal\nprivacy\" as \" the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Additionally, section 7(1)(c) provides that \"[ t]he disclosure of\n\nIt is undisputed that the State's Attorney's Office redacted the name of a former\n\nemployee from e-mail exchanges between the State's Attorney and the Lake County Public\nDefender. The context indicates that these two public officials were discussing the progress of\nassistant state's attorneys implementing the new State's Attorney's policies while that former\nemployee was still employed by the State's Attorney's Office. Because the e- mail discussion\ninvolves a public employee's actions while the individual was performing public duties as an\nemployee, the exchange, including the employee's name, unequivocally bears on the\nperformance of that employee's public duties. Therefore, the disclosure of the name would not\nconstitute an unwarranted invasion of the employee's personal privacy under the plain language\nof section 7(1)(c). Accordingly, this office concludes that the State's Attorney's Office\nimproperly withheld the name of the employee pursuant to section 7(1)(c) of FOIA. \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" Under\nthe exemption, \"[ t]he government\ngive- and- take leading up to its final decisions.\" Chicago Tribune Co. v. Cook County Assessor's\nOffice, 2018 IL App (1st) 170455, ¶29, 109 N.E.3d 872, 880 (2018). \n\nis entitled to withhold documents that reflect the agency's\n\nIn its response to this office, the State's Attorney's Office cited Harwood v. \n\nMcDonough, 344 Ill. App. 3d 242 (1st Dist. 2003) and State Journal- Register v. University of\nIllinois Springfield, 2013 IL App (4th) 120881, 994 N.E.2d 705 (2013) in support of its assertion\nthat the e- mails between the State's Attorney's Office and Public Defender's Office are exempt\nfrom disclosure under section 7(1)(f) because they are \" part of a predecisional deliberation of\nplea negotiations.\" 1\n\nThe Appellate Court, First District, explained in Harwood that section 7(1)(f) \n\napplies to \"inter- and intra-agency predecisional and deliberative material,\" and is \"intended to\nprotect the communications process and encourage frank and open discussion among agency\nemployees before a final decision is made.\" (Emphasis added.) Harwood, 344 Ill. App. 3d at\n247- 48. \" Inter\" is defined as \"[ a] mong; between[,]\" 2 while \" intra\" is defined as \"[ i]n; near; \n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 4. \n\nwithin.\" 3 Thus, communications generally must be exchanged among or between public bodies\nor occur internally within a public body to meet the threshold requirement of section 7(1)(f). \nFisher v. Office of the Illinois Attorney General, 2021 IL App (1st) 200225, ¶ 19, 195 N.E.3d\n719, __ (2021) (\" In order to be exempt under this provision, the responsive materials must be\nboth (1) inter or intra agency and (2) predecisional and deliberative.\"). \n\nThe Harwood court did hold that predecisional deliberative communications\nbetween public bodies and third party consultants also may be withheld pursuant to section\n7(1)(f), but only if the consultants' \" analyses and recommendation ‘ played essentially the same\npart in an agency's process of deliberation as documents prepared by agency personnel might\nhave done.'\" Harwood, 344 Ill. App. 3d at 248, citing Dep' t of Interior v. Klamath Water Users\nProtective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001). In Klamath, the U.S. Supreme\nCourt considered whether the U.S. Department of Interior properly withheld, pursuant to section\n552(b)(5) of the federal FOIA,4 records of communications with a Native-American Indian tribe\nconcerning a plan to allocate water resources. The court stated that the exemption may shield\npre-decisional material prepared by a third party consultant on behalf of a public body if the third\nparty \" does not represent an interest of its own, or the interest of any other client, when it advises\nthe agency that hires it. Its only obligations are to truth and its sense of what good judgment\ncalls for, and in those respects the consultant\ndo.\" Klamath Water Users Protective Ass' n, 532 U.S. at 11, 121 S. Ct. at 1067. However, \ncommunications with third parties that have independent interests and that stand to benefit from\nthe public body's final decision cannot be characterized as intra- agency communications. \nKlamath, 532 U.S. at 13-15, 121 S. Ct. at 1068-69. The court concluded that the records in\nquestion did not fall within the scope of the deliberative process exemption because the tribe\nrepresented its own interests rather than the interests of the Department of Interior. Klamath, \n532 U.S. at 15, 121 S. Ct. at 1069. Likewise, the Attorney General has issued a binding opinion\nconcluding that an attorney's letter to a public body on behalf of a client with independent\ninterests in a legal dispute was not exempt from disclosure pursuant to section 7(1)(f) of FOIA. \nIll. Att'y Gen. Pub. Acc. Op. No. 22-013, issued November 21, 2022, at 15. Collectively, these\nprecedents stand for the principle that the deliberative process exemption does not allow the\nwithholding of records a public body exchanged with an entity that was representing its own\nindependent\nthe public body. Construing these authorities in a different context, this office has determined\nthat communications between public bodies with opposing interests are similarly not exempt\nfrom disclosure pursuant to section 7(1)(f). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 60989, issued\n\ninterests, rather than the public body's interests, when it exchanged the records with\n\nfunctions just as an employee would be expected to\n\n3Black's Law Dictionary 738 (5th ed. 1979). \n\n4Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2000)) applies to \"inter-agency or intra-\n\nagency memorandums or letters which would not be available by law to a party other than an agency in litigation\n\nApril 3, 2020, at 4 (\" Rather than jointly deliberating in a collaborative manner, the parties were\nrepresented by separate counsel and actively negotiating as adversaries over the terms of that\nagreement.\"). \n\nis 'to protect the communications process and encourage frank and open\n\nHowever, in State Journal- Register, 2013 IL App (4th) 120881, ¶ 26, 994 N.E.2d\nat 713, a panel of the Appellate Court, Fourth District, held that a letter sent to a public body by\nan attorney representing a potentially adverse party fell within the scope of section 7(1)(f). The\ncourt quoted the holding in Harwood that \"the purpose of exempting predecisional and\ndeliberative material\ndiscussion among agency employees before a final decision is made.'\" (Emphasis added.) State\nJournal Register, 2013 IL App (4th) 120881, ¶ 26, 994 N.E.2d at 713 (quoting Harwood, 344 Ill. \nApp. 3d at 248)). Nevertheless, that court then went on to hold that portions of a letter sent to\nthe University by an attorney representing an individual who was considering filing suit against\nthe University were exempt from disclosure pursuant to section 7(1)(f) because the information\nin the letter \" would have undoubtedly been relied upon by [ the University] in formulating a plan\nor policy for settling potential litigation with the victim.\" State Journal-Register, 2013 IL App\n4th) 120881, ¶ 29, 994 N.E.2d at 714 (quoting Harwood, 344 Ill. App. 3d at 248). In reaching\nthis conclusion, the court did not address the issue of whether the letter was \"inter- or intra-\nagency\" material, or distinguish the holdings in Harwood and Klamath that limit the deliberative\nprocess exemption to communications with outside parties who represent\npublic body. Because the opinion in State-Journal Register does not provide any explanation of\nhow a letter from opposing counsel could be construed as \" inter- and intra- agency predecisional\nor deliberative material\" as described in Harwood and Klamath, we are compelled instead to\nfollow the weight of authority and apply the analysis in those cases when considering the e- mails\nexchanged between the State's Attorney's Office and Public Defender's Office. \n\nthe interests of the\n\nWhile the State's Attorney's Office and Public Defender's Office shared a goal of\nreaching plea agreements in the cases discussed in the contested e- mails, both public bodies and\ntheir clients had opposing interests as to the terms of possible plea agreements and the subject\nmatter of the e- mails. The State's Attorney's Office represents the public in prosecuting crimes, \nwhile the Public Defender's Office advocates for its clients' interests; they are adversarial parties. \nAccordingly, the withheld correspondence between those offices does not constitute inter- or\nintra-agency communications of the State's Attorney's Office within the scope of the deliberative\nprocess exemption, and the State's Attorney's Office has not sustained its burden of\ndemonstrating that the communications are exempt from disclosure in whole or in part pursuant\n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications between a public body and an attorney\nrepresenting the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.] \n\nCommunications protected by the attorney-client privilege are within the scope of\n\nsection 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1st Dist. 1997). A\nparty asserting that a communication to an attorney is protected by the attorney-client privilege\nmust show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2d\nDist. 2006). Moreover, \"[ t]he privilege applies not only to the communications of a client to his\nattorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 Ill. \nApp. 3d 363, 374 (5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶ 40, 998\nN.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that the privilege is a two-way street, \nprotecting both the client's communications to the attorney and the attorney's advice to the\nclient.\"). A public body that withholds records under section 7(1)(m) \"can meet its burden only\nby providing some objective indicia that the exemption is applicable under the circumstances.\" \nEmphasis in original.) Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d\n456, 470 (2003). \n\nThe work product doctrine \" applies to documents prepared by either client or\n\nattorney in anticipation of litigation or trial.\" Dalen v. Ozite Corp., 230 Ill. App. 3d 18, 27 (2nd\nDist. 1992). The protection of the doctrine, however, is waived by voluntary disclosure to a third\nparty. Dalen, 230 Ill. App. 3d at 29 (company waived work product doctrine by providing\nopposing counsel access to its files even though company's attorney's claimed disclosure of\nmemorandum containing work product was inadvertent because he did not have time to purge\nthe memorandum from the files); see also Eagle Compressors, Inc., v. HEC Liquidating Corp., \n206 F.R.D. 474, 479 (N.D. Ill. 2002) (\" The voluntary disclosure of attorney work product to an\nadversary waives work product protection.\") \n\nIn its response to this office, the State's Attorney's Office argued that e-mails from\nthe Public Defender's Office that include the mental impressions of assistant public defenders in\n\npursuit of plea negotiations are exempt despite being shared with the State's Attorney's Office, \nwhich is a third party adversary. \n\nThe State's Attorney's Office does not have, nor did it claim to have, an attorney-\n\nclient relationship with the Public Defender's Office. Section 7(1)(m) of FOIA applies to\ncommunications between a public body and an attorney * * * representing the public body\" and\nto work product prepared \" upon the request of an attorney advising the public body.\" The\nattorney-client privilege and work product doctrine do not apply to communications or materials\nexchanged by adversarial parties. \n\nThe State's Attorney's Office additionally argued, citing Nelson v. County of\n\nKendall, 2014 IL 116303, and Newman, Raiz & Shelmadine, LLC. v. Brown, 394 Ill. App. 3d\n602 (1st Dist. 2009) that disclosure of this material would be incongruous with FOIA because the\nPublic Defender's Office is not subject to FOIA. Because this FOIA request concerns public\nrecords maintained by the State's Attorney's Office, it is not relevant whether the Public\nDefender's Office would be subject to FOIA. The definition of \"public records\" in section 2(c) \nof FOIA5 (5 ILCS 140/ 2(c) (West 2020)) expressly applies to all records in the possession of the\nState's Attorney's Office pertaining to the transaction of public business. This definition does not\ncontain an exception for records exchanged with third parties that are not public bodies subject to\nthe requirements of FOIA. Further, while the cases cited by the State's Attorney's Office\nconfirmed that the judiciary is not subject to FOIA, none of them addressed whether public\ndefenders' offices are part of the judiciary. This office has previously determined that public\ndefenders' offices are not part of the judiciary and are subject to the requirements of FOIA. See\nIll. Att'y Gen. PAC Req. Rev. Ltr. 39421, issued January 8, 2019, at 6 (\" the Public Defender's\nOffice is not part of the judicial branch of government, for purposes of FOIA. Instead, it is a\ncounty office, which falls under the definition of a \" public body\" in section 2(a) of FOIA.\"). \nAccordingly, this office concludes that the State's Attorney's Office has not sustained its burden\nof demonstrating that any portions of the contested records exempt from disclosure pursuant to\nsection 7(1)(m) of FOIA. \n\n5Section 2(c) of FOIA defines \" public records\" as: \n\nall records, reports, forms, writings, letters, memoranda, books, papers, maps, \nphotographs, microfilms, cards, tapes, recordings, electronic data processing\n\nPotential Redactions Pursuant\n\nto Sections 7(1)(a), 7(1)(c), and 7(1)(d)(iv) \n\nIn its response to this office, the State's Attorney's Office asserted that unspecified\n\npieces of information contained within the withheld records would also be exempt pursuant to\nsections \"(7)(1)(a)(confidentiality provisions of the Mental Health and Developmental\nDisabilities Confidentiality Act, 740 ILCS 110/3); 7(1)(d)(iv) (withholding information\nidentifying complaining witnesses) and 7(1)(c)(personal privacy relating to victims of crime).\" 6\nAlthough the State's Attorney's Office did not specify which records or portions of records may\nbe exempt under these provisions, this office's review of the withheld records confirms that\ndiscrete portions of some of the withheld e-mails would be subject to permissible redactions. \n\nSection 7(1)(a) exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\" Section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act\nprovides: \n\nAll records and communications shall be confidential and\n\nshall not be disclosed except as provided in this Act. Unless\notherwise expressly provided for in this Act, records and\ncommunications made or created in the course of providing mental\nhealth or developmental disabilities services shall be protected\nfrom disclosure regardless of whether the records and\ncommunications are made or created in the course of a therapeutic\nrelationship. \n\nSection 2 of the Mental Health Confidentiality Act (740 ILCS 110/ 2 (West 2014)) \n\ndefines \"record,\" in pertinent part, as \" any record kept by a therapist or by an agency in the\ncourse of providing mental health or developmental disabilities service to a recipient concerning\nthe recipient and the services provided.\" To the extent that information within the requested\nrecords falls within this category, the State's Attorney's Office is specifically prohibited from\ndisclosing such information except in accordance with the terms of that act. \n\nSection 7(1)(c) exempts from disclosure \"[ p]ersonal information contained within\n\npublic records, the disclosure of which would constitute a clearly unwarranted invasion of\npersonal privacy.\" Section 7(1)(d)(iv) exempts from disclosure: \n\n6Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's\n\nAttorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 3-\n\nRecords in the possession of any public body created in the\n\nd) \ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\nunavoidably disclose the identity of a confidential source, \n\niv) \nconfidential information furnished only by the confidential source, \nor persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies[.] \n\nAccordingly, the State's Attorney's Office may redact the identities of victims, witnesses and\nother third parties who were not arrested or charged with crimes. See, for example, Dillon v. \nDOJ, 102 F. Supp. 3d 272, 295 (D.C. Cir. 2015) (disclosure of the names of third parties in law\nenforcement\n\nrecords would constitute an unwarranted invasion of personal privacy). \n\nIn accordance with the conclusions expressed in this determination, this office\n\nrequests that the State's Attorney's Office provide\nwith copies of the withheld\nrecords, subject only to permissible redactions. If any information is redacted, the State's\nAttorney's Office must provide\ndetailed factual basis for the applicability of any asserted exemptions. \n\nwith a supplemental written response that includes a\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590- 7878 or benjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n79899 f 71c improper 71f improper 71m improper sao","plain_summary_pre_resummarize":"A requester asked the Lake County State's Attorney's Office for emails between four individuals from December 2020 to March 2021. The office partially denied the request, citing exemptions for personal privacy and deliberative process. The Illinois Attorney General's Public Access Bureau reviewed the case and found that the office improperly redacted a former employee's name, because the name related to the employee's public duties. The determination also discussed whether emails between the State's Attorney and Public Defender were exempt as deliberative communications, but did not order a specific scope of release.","card_headline":"Emails between four individuals over three months","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69899/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 18, 2023\n\nVia electronic mail\n[REDACTED]\n\nVia electronic mail\nMs. Melanie K. Nelson\nChief Deputy, Civil Trial Division\nLake County State's Attorney's Office\n18 North County Street, 3rd Floor\nWaukegan, Illinois 60085\nmnelson@lakecountyil.gov\n\nRE: FOIA Request for Review – 2022 PAC 69899\n\nDear [REDACTED] and Ms. Nelson:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the Public Access Bureau concludes that the Lake County State's Attorney's Office (State's Attorney's Office) improperly redacted records responsive to [REDACTED] December 3, 2021, FOIA request.\n\nOn that date, [REDACTED] submitted a FOIA request to the State's Attorney's Office seeking copies of e-mails sent between four specified individuals between the dates of December 1, 2020, and March 1, 2021. On December 17, 2021, the State's Attorney's Office granted [REDACTED] request in part and denied it in part pursuant to sections 7(1)(c), 7(1)(f), and 7(1)(m) of FOIA (5 ILCS 140/7(1)(c), (1)(f), (1)(m) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021). On February 14, 2022, [REDACTED] submitted the above-referenced Request for Review disputing the partial denial of his request.\n\nOn February 25, 2022, this office forwarded a copy of the Request for Review to the State's Attorney's Office and asked it to provide unredacted copies of the responsive records, as well as a detailed explanation of the factual and legal bases for the applicability of the asserted exemptions.\n\nOn March 16, 2022, the State's Attorney's Office provided this office with a written response. As part of that response, it provided [REDACTED] with a supplemental response containing fewer redactions. The State's Attorney's Office stated that the remaining withheld information consisted of the name of an employee withheld pursuant to section 7(1)(c) and e-mail communications consisting of negotiations between the State's Attorney's Office and Public Defender's Office withheld pursuant to sections 7(1)(f) and 7(1)(m). The State's Attorney's Office further argued that certain types of information within these e-mails also is exempt pursuant to sections 7(1)(a), 7(1)(c), and 7(1)(d)(iv) of FOIA (5 ILCS 140/7(1)(a), (1)(c), (1)(d)(iv) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021).\n\nOn March 16, 2022, this office forwarded a copy of the State's Attorney's Office's response to [REDACTED]; he did not reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds records \"has the burden of proving by clear and convincing evidence\" that the records are exempt from disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information.\" Additionally, section 7(1)(c) provides that \"[t]he disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\" (Emphasis added.)\n\nIt is undisputed that the State's Attorney's Office redacted the name of a former employee from e-mail exchanges between the State's Attorney and the Lake County Public Defender. The context indicates that these two public officials were discussing the progress of assistant state's attorneys implementing the new State's Attorney's policies while that former employee was still employed by the State's Attorney's Office. Because the e-mail discussion involves a public employee's actions while the individual was performing public duties as an employee, the exchange, including the employee's name, unequivocally bears on the performance of that employee's public duties. Therefore, the disclosure of the name would not constitute an unwarranted invasion of the employee's personal privacy under the plain language of section 7(1)(c). Accordingly, this office concludes that the State's Attorney's Office improperly withheld the name of the employee pursuant to section 7(1)(c) of FOIA.\n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[p]reliminary drafts, notes, recommendations, memoranda and other records in which opinions are expressed, or policies or actions are formulated, except that a specific record or relevant portion of a record shall not be exempt when the record is publicly cited and identified by the head of the public body.\" Under the exemption, \"[t]he government is entitled to withhold documents that reflect the agency's give-and-take leading up to its final decisions.\" Chicago Tribune Co. v. Cook County Assessor's Office, 2018 IL App (1st) 170455, ¶29, 109 N.E.3d 872, 880 (2018).\n\nIn its response to this office, the State's Attorney's Office cited Harwood v. McDonough, 344 Ill. App. 3d 242 (1st Dist. 2003) and State Journal-Register v. University of Illinois Springfield, 2013 IL App (4th) 120881, 994 N.E.2d 705 (2013) in support of its assertion that the e-mails between the State's Attorney's Office and Public Defender's Office are exempt from disclosure under section 7(1)(f) because they are \"part of a predecisional deliberation of plea negotiations.\"¹\n\nThe Appellate Court, First District, explained in Harwood that section 7(1)(f) applies to \"inter- and intra-agency predecisional and deliberative material,\" and is \"intended to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.\" (Emphasis added.) Harwood, 344 Ill. App. 3d at 247-48. \"Inter\" is defined as \"[a]mong; between[,]\"² while \"intra\" is defined as \"[i]n; near;\n\n¹Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's Attorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 4.\n\n²Black's Law Dictionary 728 (5th ed. 1979).\n\nwithin.\"3 Thus, communications generally must be exchanged among or between public bodies or occur internally within a public body to meet the threshold requirement of section 7(1)(f). Fisher v. Office of the Illinois Attorney General, 2021 IL App (1st) 200225, ¶19, 195 N.E.3d 719, __ (2021) (\"In order to be exempt under this provision, the responsive materials must be both (1) inter or intra agency and (2) predecisional and deliberative.\").\n\nThe Harwood court did hold that predecisional deliberative communications between public bodies and third party consultants also may be withheld pursuant to section 7(1)(f), but only if the consultants' \"analyses and recommendation 'played essentially the same part in an agency's process of deliberation as documents prepared by agency personnel might have done.'\" Harwood, 344 Ill. App. 3d at 248, citing Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 11, 121 S. Ct. 1060, 1067 (2001). In Klamath, the U.S. Supreme Court considered whether the U.S. Department of Interior properly withheld, pursuant to section 552(b)(5) of the federal FOIA,4 records of communications with a Native-American Indian tribe concerning a plan to allocate water resources. The court stated that the exemption may shield pre-decisional material prepared by a third party consultant on behalf of a public body if the third party \"does not represent an interest of its own, or the interest of any other client, when it advises the agency that hires it. Its only obligations are to truth and its sense of what good judgment calls for, and in those respects the consultant functions just as an employee would be expected to do.\" Klamath Water Users Protective Ass'n, 532 U.S. at 11, 121 S. Ct. at 1067. However, communications with third parties that have independent interests and that stand to benefit from the public body's final decision cannot be characterized as intra-agency communications. Klamath, 532 U.S. at 13-15, 121 S. Ct. at 1068-69. The court concluded that the records in question did not fall within the scope of the deliberative process exemption because the tribe represented its own interests rather than the interests of the Department of Interior. Klamath, 532 U.S. at 15, 121 S. Ct. at 1069. Likewise, the Attorney General has issued a binding opinion concluding that an attorney's letter to a public body on behalf of a client with independent interests in a legal dispute was not exempt from disclosure pursuant to section 7(1)(f) of FOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 22-013, issued November 21, 2022, at 15. Collectively, these precedents stand for the principle that the deliberative process exemption does not allow the withholding of records a public body exchanged with an entity that was representing its own independent interests, rather than the public body's interests, when it exchanged the records with the public body. Construing these authorities in a different context, this office has determined that communications between public bodies with opposing interests are similarly not exempt from disclosure pursuant to section 7(1)(f). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 60989, issued\n\n3 Black's Law Dictionary 738 (5th ed. 1979).\n\n4 Federal FOIA Exemption 5 (5 U.S.C. § 552(b)(5) (West 2000)) applies to \"inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency[.]\"\n\nApril 3, 2020, at 4 (\"Rather than jointly deliberating in a collaborative manner, the parties were represented by separate counsel and actively negotiating as adversaries over the terms of that agreement.\").\n\nHowever, in State Journal-Register, 2013 IL App (4th) 120881, ¶ 26, 994 N.E.2d at 713, a panel of the Appellate Court, Fourth District, held that a letter sent to a public body by an attorney representing a potentially adverse party fell within the scope of section 7(1)(f). The court quoted the holding in Harwood that \"the purpose of exempting predecisional and deliberative material is 'to protect the communications process and encourage frank and open discussion among agency employees before a final decision is made.'\" (Emphasis added.) State Journal Register, 2013 IL App (4th) 120881, ¶26, 994 N.E.2d at 713 (quoting Harwood, 344 Ill. App. 3d at 248)). Nevertheless, that court then went on to hold that portions of a letter sent to the University by an attorney representing an individual who was considering filing suit against the University were exempt from disclosure pursuant to section 7(1)(f) because the information in the letter \"would have undoubtedly been relied upon by [the University] in formulating a plan or policy for settling potential litigation with the victim.\" State Journal-Register, 2013 IL App (4th) 120881, ¶29, 994 N.E.2d at 714 (quoting Harwood, 344 Ill. App. 3d at 248). In reaching this conclusion, the court did not address the issue of whether the letter was \"inter- or intra-agency\" material, or distinguish the holdings in Harwood and Klamath that limit the deliberative process exemption to communications with outside parties who represent the interests of the public body. Because the opinion in State-Journal Register does not provide any explanation of how a letter from opposing counsel could be construed as \"inter- and intra-agency predecisional or deliberative material\" as described in Harwood and Klamath, we are compelled instead to follow the weight of authority and apply the analysis in those cases when considering the e-mails exchanged between the State's Attorney's Office and Public Defender's Office.\n\nWhile the State's Attorney's Office and Public Defender's Office shared a goal of reaching plea agreements in the cases discussed in the contested e-mails, both public bodies and their clients had opposing interests as to the terms of possible plea agreements and the subject matter of the e-mails. The State's Attorney's Office represents the public in prosecuting crimes, while the Public Defender's Office advocates for its clients' interests; they are adversarial parties. Accordingly, the withheld correspondence between those offices does not constitute inter- or intra-agency communications of the State's Attorney's Office within the scope of the deliberative process exemption, and the State's Attorney's Office has not sustained its burden of demonstrating that the communications are exempt from disclosure in whole or in part pursuant to section 7(1)(f) of FOIA.\n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure:\n\nCommunications between a public body and an attorney\n* * * representing the public body that would not be subject to\ndiscovery in litigation, and materials prepared or compiled by or\nfor a public body in anticipation of a criminal, civil or\nadministrative proceeding upon the request of an attorney advising\nthe public body[.]\n\nCommunications protected by the attorney-client privilege are within the scope of section 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1st Dist. 1997). A party asserting that a communication to an attorney is protected by the attorney-client privilege must show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it was made to an attorney acting in his legal capacity for the purpose of securing legal advice or services; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2d Dist. 2006). Moreover, \"[t]he privilege applies not only to the communications of a client to his attorney, but also to the advice of an attorney to his client.\" In re Marriage of Granger, 197 Ill. App. 3d 363, 374 (5th Dist. 1990); see also People v. Radojcic, 2013 IL 114197, ¶40, 998 N.E.2d 1212, 1221-22 (2013) (\"[T]he modern view is that the privilege is a two-way street, protecting both the client's communications to the attorney and the attorney's advice to the client.\"). A public body that withholds records under section 7(1)(m) \"can meet its burden only by providing some objective indicia that the exemption is applicable under the circumstances.\" (Emphasis in original.) Illinois Education Ass'n v. Illinois State Board of Education, 204 Ill. 2d 456, 470 (2003).\n\nThe work product doctrine \"applies to documents prepared by either client or attorney in anticipation of litigation or trial.\" Dalen v. Ozite Corp., 230 Ill. App. 3d 18, 27 (2nd Dist. 1992). The protection of the doctrine, however, is waived by voluntary disclosure to a third party. Dalen, 230 Ill. App. 3d at 29 (company waived work product doctrine by providing opposing counsel access to its files even though company's attorney's claimed disclosure of memorandum containing work product was inadvertent because he did not have time to purge the memorandum from the files); see also Eagle Compressors, Inc., v. HEC Liquidating Corp., 206 F.R.D. 474, 479 (N.D. Ill. 2002) (\"The voluntary disclosure of attorney work product to an adversary waives work product protection.\")\n\nIn its response to this office, the State's Attorney's Office argued that e-mails from the Public Defender's Office that include the mental impressions of assistant public defenders in\n\npursuit of plea negotiations are exempt despite being shared with the State's Attorney's Office, which is a third party adversary.\n\nThe State's Attorney's Office does not have, nor did it claim to have, an attorney-client relationship with the Public Defender's Office. Section 7(1)(m) of FOIA applies to \"communications between a public body and an attorney * * * representing the public body\" and to work product prepared \"upon the request of an attorney advising the public body.\" The attorney-client privilege and work product doctrine do not apply to communications or materials exchanged by adversarial parties.\n\nThe State's Attorney's Office additionally argued, citing Nelson v. County of Kendall, 2014 IL 116303, and Newman, Raiz & Shelmadine, LLC. v. Brown, 394 Ill. App. 3d 602 (1st Dist. 2009) that disclosure of this material would be incongruous with FOIA because the Public Defender's Office is not subject to FOIA. Because this FOIA request concerns public records maintained by the State's Attorney's Office, it is not relevant whether the Public Defender's Office would be subject to FOIA. The definition of \"public records\" in section 2(c) of FOIA⁵ (5 ILCS 140/2(c) (West 2020)) expressly applies to all records in the possession of the State's Attorney's Office pertaining to the transaction of public business. This definition does not contain an exception for records exchanged with third parties that are not public bodies subject to the requirements of FOIA. Further, while the cases cited by the State's Attorney's Office confirmed that the judiciary is not subject to FOIA, none of them addressed whether public defenders' offices are part of the judiciary. This office has previously determined that public defenders' offices are not part of the judiciary and are subject to the requirements of FOIA. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 39421, issued January 8, 2019, at 6 (\"the Public Defender's Office is not part of the judicial branch of government, for purposes of FOIA. Instead, it is a county office, which falls under the definition of a \"public body\" in section 2(a) of FOIA.\"). Accordingly, this office concludes that the State's Attorney's Office has not sustained its burden of demonstrating that any portions of the contested records exempt from disclosure pursuant to section 7(1)(m) of FOIA.\n\n⁵Section 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda, books, papers, maps, photographs, microfilms, cards, tapes, recordings, electronic data processing records, electronic communications, recorded information and all other documentary materials pertaining to the transaction of public business, regardless of physical form or characteristics, having been prepared by or for, or having been or being used by, received by, in the possession of, or under the control of any public body.\n\nPotential Redactions Pursuant to Sections 7(1)(a), 7(1)(c), and 7(1)(d)(iv)\n\nIn its response to this office, the State's Attorney's Office asserted that unspecified pieces of information contained within the withheld records would also be exempt pursuant to sections \"(7)(1)(a)(confidentiality provisions of the Mental Health and Developmental Disabilities Confidentiality Act, 740 ILCS 110/3); 7(1)(d)(iv) (withholding information identifying complaining witnesses) and 7(1)(c)(personal privacy relating to victims of crime).\"6 Although the State's Attorney's Office did not specify which records or portions of records may be exempt under these provisions, this office's review of the withheld records confirms that discrete portions of some of the withheld e-mails would be subject to permissible redactions.\n\nSection 7(1)(a) exempts from disclosure \"[i]nformation specifically prohibited from disclosure by federal or State law or rules and regulations implementing federal or State law.\" Section 3(a) of the Mental Health and Developmental Disabilities Confidentiality Act provides:\n\nAll records and communications shall be confidential and shall not be disclosed except as provided in this Act. Unless otherwise expressly provided for in this Act, records and communications made or created in the course of providing mental health or developmental disabilities services shall be protected from disclosure regardless of whether the records and communications are made or created in the course of a therapeutic relationship.\n\nSection 2 of the Mental Health Confidentiality Act (740 ILCS 110/2 (West 2014)) defines \"record,\" in pertinent part, as \"any record kept by a therapist or by an agency in the course of providing mental health or developmental disabilities service to a recipient concerning the recipient and the services provided.\" To the extent that information within the requested records falls within this category, the State's Attorney's Office is specifically prohibited from disclosing such information except in accordance with the terms of that act.\n\nSection 7(1)(c) exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(d)(iv) exempts from disclosure:\n\n6 Letter from Melanie K. Nelson, Chief Deputy, Civil Trial Division, Lake County State's Attorney's Office, to Benjamin J. Silver, Assistant Attorney General, Public Access Bureau (March 16, 2022), at 3-4.\n\n(d) Records in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\nbut only to the extent that disclosure would:\n\n* * *\n\n(iv) unavoidably disclose the identity of a confidential source,\nconfidential information furnished only by the confidential source,\nor persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies[.]\n\nAccordingly, the State's Attorney's Office may redact the identities of victims, witnesses and\nother third parties who were not arrested or charged with crimes. See, for example, Dillon v.\nDOJ, 102 F. Supp. 3d 272, 295 (D.C. Cir. 2015) (disclosure of the names of third parties in law\nenforcement records would constitute an unwarranted invasion of personal privacy).\n\nIn accordance with the conclusions expressed in this determination, this office\nrequests that the State's Attorney's Office provide [REDACTED] with copies of the withheld\nrecords, subject only to permissible redactions. If any information is redacted, the State's\nAttorney's Office must provide [REDACTED] with a supplemental written response that includes a\ndetailed factual basis for the applicability of any asserted exemptions.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590-7878 or benjamin.silver@ilag.gov.\n\nVery truly yours,\n\n[REDACTED]\n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n79899 f 71c improper 71f improper 71m improper sao"}
{"id":973,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-05-15","case_number":null,"request_numbers":["69962"],"title":"Romeoville Police Department improperly withheld applicant background records under 7(1)(a) and 7(1)(f)","filename":"69962, issued May 15, 2024.pdf","rel_path":null,"word_count":3113,"summary":"The requester sought polygraph results and background check records related to her employment denial, which the Romeoville Police Department withheld under FOIA exemptions. The PAC determined that the Department improperly withheld portions of the records that did not qualify for the claimed exemptions.","plain_summary":"A job applicant requested her own background check and polygraph results from the Romeoville Police Department, but the department refused to release them. The Attorney General's office reviewed the records and found that the police department failed to prove that all the withheld information was legally exempt. The department was instructed to release the non-exempt portions of the records.","holding":"The Romeoville Police Department improperly withheld non-exempt information from the requester's background check report.","legal_question":"Whether the Romeoville Police Department properly applied FOIA exemptions 7(1)(a) and 7(1)(f) to withhold an applicant's background check and polygraph records.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(f)"],"public_body":"Romeoville Police Department","requesting_party":"Anonymous (redacted in text)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The requester sought access to her own employment background check and polygraph examination results following a denial of employment.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d-5/69962%2C%20issued%20May%2015%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["background check","employment records","police records","FOIA exemption"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"May 15, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard E. Vogel\nTracy Johnson &  Wilson\n2801 Black Road,  2nd Floor\nJoliet, Illinois 60435\nrvogel@tracylawfirm. com\n\nRE:   FOIA Request for Review –  2022 PAC 69962\n\nDear\n\nand Mr. Vogel: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)).  For the reasons explained below, the\nPublic Access Bureau concludes that the Romeoville Police Department ( Police Department or\nRPD) improperly withheld certain non-exempt information responsive to\nFebruary 8, 2022,  FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Police Department\n\nseeking copies of her August 21, 2021, polygraph exam results and all her background check\nrecords pertaining \" to [ the]  reason for denial of employment by the [ Police Department]  starting\nfrom 8/19/2021 to 9/14/2021.\" 1 On February 10, 2022, the Police Department denied\n\nrequest in its entirety pursuant\n\nto section 7(1)( f) of FOIA ( 5 ILCS 140/ 7(1)( f) (West\n\n2021 Supp.), as amended by Public Acts 102-694, effective January 7, 2022, revised February 3, \n2022;  102- 791,  effective May 13, 2022;  102- 1055,  effective June 10, 2022).   On February 22, \n\n1FOIA request submitted by\n\nFebruary 8, 2022). \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 2\n\n2022, \nDepartment' s response. \n\nsubmitted the above-referenced Request for Review disputing the Police\n\nOn February 27, 2022,  this office sent a copy of the Request for Review to the\n\nPolice Department and asked it to provide unredacted copies of the records that it withheld for\nthis office' s confidential review,  together with a detailed explanation of the factual and legal\nbases for the applicability of section 7(1)(f) of FOIA.  On March 9, 2022, the Police Department\nsubmitted its written response.   In its response,  the Police Department provided\nwith\na copy of her August 21, 2021, polygraph examination.2 However, the Police Department\nasserted it properly withheld records related to\nto\nsections 7(1)(a) and 7(1)(d-5) of FOIA,3 in addition to section 7(1)(f).  On March 16, 2022, this\noffice sent a copy of the Police Department' s written response to\nthat afternoon. \n\nbackground check pursuant\n\nshe replied later\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 ( West 2022);  see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body \"has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/1.2 (West 2022). \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p]reliminary drafts, notes,  \n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"   The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n5 U.S.C. §552( b)( 5) ( 2020)),  which applies to \" inter-  and intra- agency predecisional and\ndeliberative material.\"  Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (2003).  The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\"   Harwood, 344 Ill. App. \n3d at 248.   The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\"  Enviro Tech Intern., Inc. v. United States Environmental Protection\nAgency,  371 F.3d 370,  374 ( 7th Cir. 2004).   Rather, \"[ o] nly those portions of a predecisional\ndocument that reflect the give and take of the deliberative process may be withheld.\"  Kalven v. \n\n2E- mail from Richard E. Vogel, Tracy, Johnson &  Wilson, to\n\nMarch 9, 2022). \n\n35 ILCS 140/7(1)(a), ( 1)(d-5) (West 2021 Supp.),  as amended by Public Acts 102-694, effective\nJanuary 7, 2022, revised February 3, 2022;  102-791, effective May 13, 2022;  102-1055, effective June 10, 2022.    \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 3\n\nCity of Chicago, 2013 IL App (1st) 121846, ¶ 24, quoting Public Citizen, Inc. v. Office of\nManagement &  Budget,  598 F.3d 865,  876 ( D.C. Cir. 2010);  see also Chemical Weapons\nWorking Group v. U.S. E.P.A., 185 F.R.D. 1, 3 (D.C. Cir 1999), quoting Dudman\nCommunications v. Dep' t of the Air Force,  815 F.2d 1565,  1568 ( D.C. Cir. 1987) (\"[ T] he critical\nquestion is whether 'disclosure of the materials would expose an agency's decision-making\nprocess in such a way as to discourage candid discussion within the agency and thereby\nundermine the agency's ability to perform its functions.'\").  \n\nIn its response to this office, the Police Department asserted that some of the\nwithheld information falls within the scope of section 7(1)( f) because it is predecisional and\ngenerated as part the Police Department's employment process.  The Police Department\nexplained: \n\nin nature,  RPD asserts that the\n\nWhile RPD is aware that the background check information\nreflected in the records provided with this letter contains material\nthat in and of itself if factual\ndisclosure of this material will unavoidably reveal its deliberative\nand decision making process with respect to applicants for\nprospective employment, and its opinions as to the factors that\nrender an applicant unqualified for employment with the RPD. \nDisclosure of the results of this background check necessarily\ndefines an opinion of the RPD as to a prospective set of facts that\ndisqualifies an applicant from employment with RPD.  Requiring\nthe release of this material may potentially inform other future job\napplicants to RPD of the RPD's criteria for hiring based on\nbackground check results. [ 4]  \n\nAdditionally,  the Police Department confirmed that these background check results have never\nbeen publicly cited by either the Chief of the RPD or the Village President of the Village of\nRomeoville. \n\nThis office' s review of the remaining background check records showed that\n\ncertain portions contain predecisional opinions, assessments, and information involved in\nformulating actions which would reveal the give- and- take of the Police Department' s deliberative\nprocess.  This office points to discrete notes and brief opinions cited on pages 6 and 7 of the\n\n4Letter from Richard E. Vogel, Tracy, Johnson &  Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General,  Public Access Bureau,  Office of the Attorney General,  State of Illinois (March 9, 2022), \nat [2]. \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 4\n\nwithheld background check report.5 Although this information contains some factual details, it is\ninextricably intertwined with the Police Department' s deliberations regarding\nqualifications.    Further, there is no indication that any portion of\ncheck was publicly cited or identified by the head of the Police Department or other associated\npolice departments.  Therefore, we conclude that this information was not improperly withheld\npursuant to section 7(1)( f). \n\nbackground\n\nOn the other hand,  a large portion of this record contains strictly factual\n\ninformation gathered by the Police Department on various aspects of\nfinancial\ninformation,  past references,  and employment history.   Although these records reveal\ninformation the Department apparently considered, they do not provide insight into the weight\ngiven to any particular piece of background information or otherwise reveal the give- and- take of\nthe Police Department's deliberations regarding its employment decision-making process and, \ntherefore,  are not within the scope of section 7(1)( f).  In addition,  information and opinions\nexpressed by\nagency- communications that may be properly redacted under the exemption.   Accordingly,  this\noffice concludes that the Police Department improperly withheld this information pursuant to\nsection 7(1)( f). \n\nor third parties that provided information are not inter-agency or intra-\n\ntraffic record, \n\nSection 7.5(q) of FOIA\n\nAlthough not asserted by the Police Department,  this office will analyze the\n\napplicability of section 7.5(q) of FOIA6 to certain past employment information.  Section 7.5(q) \nof FOIA exempts from disclosure \"[ i]nformation prohibited from being disclosed by the\nPersonnel Records Review Act [PRRA].\"   Section 11 of PRRA (820 ILCS 40/11 (West 2022)) \nprovides:  \" This Act shall not be construed to diminish a right of access to records already\notherwise provided by law, provided that disclosure of performance evaluations under the\nFreedom of Information Act shall be prohibited.\" ( Emphasis added.) \n\nIn construing a statute,  the primary goal is to ascertain and give effect to the intent\n\nof the General Assembly.  Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 16.  \"We view the\nstatute as a whole,  construing words and phrases in light of other relevant statutory provisions\nand not in isolation.  Each word, clause, and sentence of a statute must be given a reasonable\nmeaning,  if possible,  and should not be rendered superfluous.\"  People v. Gutman,  2011 IL\n110338, ¶ 12.  \n\n5E- mail from Richard E. Vogel, Tracy, Johnson &  Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau (March 9, 2022).  See pages 8-14 of the attachment titled\nScanned form a Xerox Multifunction Printer.pdf.\" \n\n65 ILCS 140/7.5 (West 2022),  as amended by Public Acts 103-008, effective June 7, 2023;  103-\n\n034, effective June 9, 2023). \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 5\n\nThe Senate Debates on House Bill 5154, which amended section 11 of the PRRA\nto add the language barring disclosure of \" performance evaluations,\"  indicates that the term was\nintended to apply to periodic comprehensive evaluations: \n\nThe premise is, there is—some protection should be in place for\nemployees and employers.   If there is a performance evaluation\npiece— you work all year, you know your supervisor has set some\ngoals for you to meet— I don' t know that it's your business or\nanyone else's business on what this particular staff person have\nobtained within that year' s evaluation.   I think what is and what\nshould be known is, perhaps, the title that the person is in, how\nmuch they' re actually being paid,  even so far just to say whether or\nnot they are an employee of the State of Illinois or any other public\nemployee.   But how well you did on your actual performance\nevaluation year-to-year, I think is a— a measure of privacy.  \nRemarks of Sen.  Lightford,  April 29,  2010,  Senate Debate on\nHouse Bill No. 5154, at 182. \n\nWhen I write an employee evaluation, I do it for that employee to\nchange the behavior to get a better result.   When that performance\nevaluation is written, my goal is to make sure that employee— their\ngoals are met.  Their ability to perform their job is enhanced.   I\ndon't write it for an audience.  If I write a performance evaluation\nfor an audience,  then it would change,  because I know that other\npeople are looking at it.  Remarks of Sen. Millner, April 29, 2010, \nSenate Debate on House Bill No. 5154,  at 186. \n\nHaving been on both sides of the employee evaluation questions,  it\nis written for that individual so that individual can correct\nparticular behavior and if it's going to be on the Internet and\navailable to the entire world, it does become where the person\nwriting the evaluation will be much more sensitive to what they\nwrite and then the employee may not gain from it.  Remarks of\nSen.  Hendon,  April 29, 2010,  Senate Debate on House Bill No. \n5154, at 188. \n\nIn describing the scope of the exemption in the legislation, the House bill's sponsor explained\nthat the \" performance evaluation process\"  identifies the need for improvements and promotes\ncorrective action.\"  Remarks of Rep. Chapa LaVia, March 11, 2010, House Debate on House\nBill No. 5154,  at 107 (\"[ I]t's just a thorough and constructive evaluation.   Employees should\nreceive guidance, corrective action and further development all within the goal of helping\n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 6\n\nemployees achieve excellence.\").   These comments indicate that the General Assembly only\nintended to bar disclosure of periodic comprehensive performance evaluations that are used to\nenhance the performance of employees by highlighting their strengths and weaknesses.  \nConfidentiality of such evaluations was deemed necessary in order for supervisors to candidly\nidentify performance problems and initiate corrective action.  By contrast, this office has found\nthat section 11 of the PRRA was not intended to apply to specific instances of misconduct.   See\nIll. Att'y Gen. PAC Rev. Ltr. 47540, issued September 13, 2017. \n\nThis office has reviewed the background check records and concludes that certain\n\npast performance evaluations.   In particular, \npersonnel files from the Cicero and Bedford Park\n\ninformation was drawn directly from\nthe Police Department collected\nPolice Departments and highlighted certain information in performance evaluations that the\nGeneral Assembly intended to prohibit from being disclosed.  Because section 11 of the PRRA\nprohibits the disclosure of performance evaluations,  the Police Department did not violate FOIA\nby withholding discrete information pulled directly from\npursuant to section 7.5(q) of FOIA.   Certain discrete information that was redacted,  however, \nappears to have been drawn from records in personnel files other than performance evaluations.  \nThat information is not exempt from disclosure under section 7.5(q)  of FOIA. \n\npersonnel records\n\nSection 7(1)( a) of FOIA and LEADS Information\n\nSection 7(1)( a)  of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\"   In its response to this office,  the Police Department asserted\nit obtained some of the information in\nbackground check report through the Illinois\nLaw Enforcement Agencies Data System ( LEADS).   \n\nSection 1240. 80( d) of title 20 of the Administrative Code ( 20 Ill. Adm.  Code\n\n1240.80(d) (2020), last amended at 23 Ill. Reg. 7521, effective June 18, 1999) provides that\nLEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\"7 See also Better Gov't Ass'n v. Zaruba, 2014 IL\nApp ( 2d)  140071, ¶  27 (\" The regulations make clear that the public is not entitled to view or\npossess data that is transmitted through, received through, or stored in LEADS.\").   \n\nThis office's review of the background check report confirmed that certain\n\ninformation was generated from LEADS.   Members of the public,  including individuals such as\nrequesting records about themselves, are not among the parties authorized to access\nLEADS data under section 1240. 30( c) of title 20 of the Administrative Code ( 20 Ill. Adm.  Code\n1240.30(c) (2020), last amended at 23 Ill. Reg. 7521, effective June 18, 1999).  Because the\n\n7That provision implements section 7 of the Illinois Criminal Identification Act (20 ILCS 2630/ 7\n\nWest 2020)). \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 7\n\nPolice Department is specifically prohibited from disseminating LEADS data to unauthorized\nparties,  the Police Department did not improperly withhold certain parts of the report pursuant\nsection 7(1)(a) of FOIA. \n\nto\n\nHowever, the Department did not illustrate that all of the information in the report\n\ndriving and financial history was specifically generated from the\n\nconcerning\nLEADS database.  This office's review also determined that some of the information is general in\nnature.   General\ninformation that is obtained from the LEADS database and incorporated into an\ninvestigative report is not exempt under section 7(1)(a) of FOIA.  See Ill. Att'y Gen. PAC Req. \nRev.  Ltr. 34767,  issued August 12, 2016,  at 6.  Accordingly,  the Police Department did not\ndemonstrate by clear and convincing evidence that certain limited parts of the report fall within\nthe scope of the 7(1)( a)  exemption. \n\nSection 7(1)( d-5) of FOIA\n\nSection 7(1)( d-5) of FOIA exempts from disclosure: \n\nA law enforcement\n\nrecord created for law enforcement\n\npurposes and contained in a shared electronic record management\nsystem if the law enforcement agency that is the recipient of the\nrequest did not create the record, did not participate in or have a\nrole in any of the events which are the subject of the record,  and\nonly has access to the record through the shared electronic record\nmanagement system. \n\nIn its response to this office,  the Police Department asserted that certain information in the\nbackground check records is exempt because it was \"obtained by the RPD from a shared\nelectronic law enforcement database from entries made by other law enforcement and in which\nthe RPD had no other involvement, other than the receipt of the information.\" 8 Additionally, the\nPolice Department submitted a signed affidavit from Deputy Chief,  Brant Hromadka,  confirming\nthe fact that certain information was obtained from a shared electronic law enforcement\ndatabase. 9\n\nThis office' s review confirmed that certain information the Police Department\nwithheld was obtained from other law enforcement agencies, such as the Brookfield Police\n\n8Letter from Richard E. Vogel, Tracy, Johnson &  Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 9, 2022), \nat [3]. \n\n9E- mail from Richard E. Vogel, Tracy, Johnson &  Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General,  Public Access Bureau ( March 9, 2022).   See pages 28-29 of the attachment titled\nScanned form a Xerox Multifunction Printer.pdf.\" \n\n\fMr. Richard E. Vogel\nMay 15, 2024\nPage 8\n\nDepartment.  Under the plain language of section 7(1)(d-5), the withheld information is exempt\nfrom disclosure because the Police Department did not create certain records,  but rather accessed\nit from a shared electronic record management system.  Therefore, this office concludes that the\nPolice Department did not improperly withhold certain information pursuant to section 7(1)( d-5). \n\nHowever,  the Police Department did not illustrate that all of the information in the\n\nfinancial history was specifically generated from a shared\n\nreport concerning\nelectronic law enforcement database.   In the financials section of the background check report, \nthe Police Department stated that it obtained this information from an Accurint report.  Based on\nan electronic search,  Accurint is a service provided by LexisNexis and is open to any person who\nsubscribes to this service.10 Information that is not obtained from a shared electronic law\nenforcement database is not exempt under section 7(1)( a)  of FOIA.   Accordingly,  the Police\nDepartment did not demonstrate by clear and convincing evidence that certain limited parts of\nthe report fall within the scope of the 7(1)( a)  exemption. \n\nUnder separate cover,  this office will identify for the Police Department\n\nthe\n\nportions of the background check report that fall within the asserted exemptions.  This office\nrequests that the Department disclose the remaining information in the report. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n69962 f 71a proper improper 71d5 proper improper 71f proper improper 75q proper mun\n\n10LexisNexis Risk Solutions,  Accurint,  available at https:// www.accurint. com. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An applicant's background check and polygraph records","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-69962/","full_text":"May 15, 2024\n\nVia electronic mail\n\nVia electronic mail\nMr. Richard E. Vogel\nTracy Johnson & Wilson\n2801 Black Road, 2nd Floor\nJoliet, Illinois 60435\nrvogel@tracylawfirm. com\n\nRE: FOIA Request for Review – 2022 PAC 69962\n\nDear\n\nand Mr. Vogel: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons explained below, the\nPublic Access Bureau concludes that the Romeoville Police Department (Police Department or\nRPD) improperly withheld certain non-exempt information responsive to\nFebruary 8, 2022, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Police Department\n\nseeking copies of her August 21, 2021, polygraph exam results and all her background check\nrecords pertaining \" to [ the] reason for denial of employment by the [ Police Department] starting\nfrom 8/19/2021 to 9/14/2021.\" 1 On February 10, 2022, the Police Department denied\n\nrequest in its entirety pursuant\n\nto section 7(1)(f) of FOIA (5 ILCS 140/ 7(1)(f) (West\n\n2021 Supp.), as amended by Public Acts 102-694, effective January 7, 2022, revised February 3, \n2022; 102- 791, effective May 13, 2022; 102- 1055, effective June 10, 2022). On February 22, \n\n2022, \nDepartment's response. \n\nsubmitted the above-referenced Request for Review disputing the Police\n\nOn February 27, 2022, this office sent a copy of the Request for Review to the\n\nPolice Department and asked it to provide unredacted copies of the records that it withheld for\nthis office's confidential review, together with a detailed explanation of the factual and legal\nbases for the applicability of section 7(1)(f) of FOIA. On March 9, 2022, the Police Department\nsubmitted its written response. In its response, the Police Department provided\nwith\na copy of her August 21, 2021, polygraph examination.2 However, the Police Department\nasserted it properly withheld records related to\nto\nsections 7(1)(a) and 7(1)(d-5) of FOIA,3 in addition to section 7(1)(f). On March 16, 2022, this\noffice sent a copy of the Police Department's written response to\nthat afternoon. \n\nbackground check pursuant\n\nshe replied later\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022). \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p]reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n5 U.S.C. §552(b)(5) (2020)), which applies to \" inter- and intra- agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (2003). The\nexemption is \" intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. The deliberative process exemption \" typically does not justify the withholding of\npurely factual material.\" Enviro Tech Intern., Inc. v. United States Environmental Protection\nAgency, 371 F.3d 370, 374 (7th Cir. 2004). Rather, \"[ o] nly those portions of a predecisional\ndocument that reflect the give and take of the deliberative process may be withheld.\" Kalven v. \n\n2E- mail from Richard E. Vogel, Tracy, Johnson & Wilson, to\n\nMarch 9, 2022). \n\n35 ILCS 140/7(1)(a), (1)(d-5) (West 2021 Supp.), as amended by Public Acts 102-694, effective\nJanuary 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022. \n\nCity of Chicago, 2013 IL App (1st) 121846, ¶ 24, quoting Public Citizen, Inc. v. Office of\nManagement & Budget, 598 F.3d 865, 876 (D.C. Cir. 2010); see also Chemical Weapons\nWorking Group v. U.S. E.P.A., 185 F.R.D. 1, 3 (D.C. Cir 1999), quoting Dudman\nCommunications v. Dep' t of the Air Force, 815 F.2d 1565, 1568 (D.C. Cir. 1987) (\"[ T] he critical\nquestion is whether 'disclosure of the materials would expose an agency's decision-making\nprocess in such a way as to discourage candid discussion within the agency and thereby\nundermine the agency's ability to perform its functions.'\"). \n\nIn its response to this office, the Police Department asserted that some of the\nwithheld information falls within the scope of section 7(1)(f) because it is predecisional and\ngenerated as part the Police Department's employment process. The Police Department\nexplained: \n\nin nature, RPD asserts that the\n\nWhile RPD is aware that the background check information\nreflected in the records provided with this letter contains material\nthat in and of itself if factual\ndisclosure of this material will unavoidably reveal its deliberative\nand decision making process with respect to applicants for\nprospective employment, and its opinions as to the factors that\nrender an applicant unqualified for employment with the RPD. \nDisclosure of the results of this background check necessarily\ndefines an opinion of the RPD as to a prospective set of facts that\ndisqualifies an applicant from employment with RPD. Requiring\nthe release of this material may potentially inform other future job\napplicants to RPD of the RPD's criteria for hiring based on\nbackground check results. [ 4] \n\nAdditionally, the Police Department confirmed that these background check results have never\nbeen publicly cited by either the Chief of the RPD or the Village President of the Village of\nRomeoville. \n\nThis office's review of the remaining background check records showed that\n\ncertain portions contain predecisional opinions, assessments, and information involved in\nformulating actions which would reveal the give- and- take of the Police Department's deliberative\nprocess. This office points to discrete notes and brief opinions cited on pages 6 and 7 of the\n\n4 Letter from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 9, 2022), \n\nwithheld background check report.5 Although this information contains some factual details, it is\ninextricably intertwined with the Police Department's deliberations regarding\nqualifications. Further, there is no indication that any portion of\ncheck was publicly cited or identified by the head of the Police Department or other associated\npolice departments. Therefore, we conclude that this information was not improperly withheld\npursuant to section 7(1)(f). \n\nbackground\n\nOn the other hand, a large portion of this record contains strictly factual\n\ninformation gathered by the Police Department on various aspects of\nfinancial\ninformation, past references, and employment history. Although these records reveal\ninformation the Department apparently considered, they do not provide insight into the weight\ngiven to any particular piece of background information or otherwise reveal the give- and- take of\nthe Police Department's deliberations regarding its employment decision-making process and, \ntherefore, are not within the scope of section 7(1)(f). In addition, information and opinions\nexpressed by\nagency- communications that may be properly redacted under the exemption. Accordingly, this\noffice concludes that the Police Department improperly withheld this information pursuant to\nsection 7(1)(f). \n\nor third parties that provided information are not inter-agency or intra-\n\ntraffic record, \n\nSection 7.5(q) of FOIA\n\nAlthough not asserted by the Police Department, this office will analyze the\n\napplicability of section 7.5(q) of FOIA6 to certain past employment information. Section 7.5(q) \nof FOIA exempts from disclosure \"[ i]nformation prohibited from being disclosed by the\nPersonnel Records Review Act [PRRA].\" Section 11 of PRRA (820 ILCS 40/11 (West 2022)) \nprovides: \" This Act shall not be construed to diminish a right of access to records already\notherwise provided by law, provided that disclosure of performance evaluations under the\nFreedom of Information Act shall be prohibited.\" (Emphasis added.) \n\nIn construing a statute, the primary goal is to ascertain and give effect to the intent\n\nof the General Assembly. Wisnasky-Bettorf v. Pierce, 2012 IL 111253, ¶ 16. \"We view the\nstatute as a whole, construing words and phrases in light of other relevant statutory provisions\nand not in isolation. Each word, clause, and sentence of a statute must be given a reasonable\nmeaning, if possible, and should not be rendered superfluous.\" People v. Gutman, 2011 IL\n110338, ¶ 12. \n\n5E- mail from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau (March 9, 2022). See pages 8-14 of the attachment titled\nScanned form a Xerox Multifunction Printer.pdf.\" \n\n65 ILCS 140/7.5 (West 2022), as amended by Public Acts 103-008, effective June 7, 2023; 103-\n\nThe Senate Debates on House Bill 5154, which amended section 11 of the PRRA\nto add the language barring disclosure of \" performance evaluations,\" indicates that the term was\nintended to apply to periodic comprehensive evaluations: \n\nThe premise is, there is—some protection should be in place for\nemployees and employers. If there is a performance evaluation\npiece— you work all year, you know your supervisor has set some\ngoals for you to meet— I don' t know that it's your business or\nanyone else's business on what this particular staff person have\nobtained within that year's evaluation. I think what is and what\nshould be known is, perhaps, the title that the person is in, how\nmuch they' re actually being paid, even so far just to say whether or\nnot they are an employee of the State of Illinois or any other public\nemployee. But how well you did on your actual performance\nevaluation year-to-year, I think is a— a measure of privacy. \nRemarks of Sen. Lightford, April 29, 2010, Senate Debate on\nHouse Bill No. 5154, at 182. \n\nWhen I write an employee evaluation, I do it for that employee to\nchange the behavior to get a better result. When that performance\nevaluation is written, my goal is to make sure that employee— their\ngoals are met. Their ability to perform their job is enhanced. I\ndon't write it for an audience. If I write a performance evaluation\nfor an audience, then it would change, because I know that other\npeople are looking at it. Remarks of Sen. Millner, April 29, 2010, \nSenate Debate on House Bill No. 5154, at 186. \n\nHaving been on both sides of the employee evaluation questions, it\nis written for that individual so that individual can correct\nparticular behavior and if it's going to be on the Internet and\navailable to the entire world, it does become where the person\nwriting the evaluation will be much more sensitive to what they\nwrite and then the employee may not gain from it. Remarks of\nSen. Hendon, April 29, 2010, Senate Debate on House Bill No. \n5154, at 188. \n\nIn describing the scope of the exemption in the legislation, the House bill's sponsor explained\nthat the \" performance evaluation process\" identifies the need for improvements and promotes\ncorrective action.\" Remarks of Rep. Chapa LaVia, March 11, 2010, House Debate on House\nBill No. 5154, at 107 (\"[ I]t's just a thorough and constructive evaluation. Employees should\n\nemployees achieve excellence.\"). These comments indicate that the General Assembly only\nintended to bar disclosure of periodic comprehensive performance evaluations that are used to\nenhance the performance of employees by highlighting their strengths and weaknesses. \nConfidentiality of such evaluations was deemed necessary in order for supervisors to candidly\nidentify performance problems and initiate corrective action. By contrast, this office has found\nthat section 11 of the PRRA was not intended to apply to specific instances of misconduct. See\nIll. Att'y Gen. PAC Rev. Ltr. 47540, issued September 13, 2017. \n\nThis office has reviewed the background check records and concludes that certain\n\npast performance evaluations. In particular, \npersonnel files from the Cicero and Bedford Park\n\ninformation was drawn directly from\nthe Police Department collected\nPolice Departments and highlighted certain information in performance evaluations that the\nGeneral Assembly intended to prohibit from being disclosed. Because section 11 of the PRRA\nprohibits the disclosure of performance evaluations, the Police Department did not violate FOIA\nby withholding discrete information pulled directly from\npursuant to section 7.5(q) of FOIA. Certain discrete information that was redacted, however, \nappears to have been drawn from records in personnel files other than performance evaluations. \nThat information is not exempt from disclosure under section 7.5(q) of FOIA. \n\npersonnel records\n\nSection 7(1)(a) of FOIA and LEADS Information\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" In its response to this office, the Police Department asserted\nit obtained some of the information in\nbackground check report through the Illinois\nLaw Enforcement Agencies Data System (LEADS). \n\nSection 1240. 80(d) of title 20 of the Administrative Code (20 Ill. Adm. Code\n\n1240.80(d) (2020), last amended at 23 Ill. Reg. 7521, effective June 18, 1999) provides that\nLEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\"7 See also Better Gov't Ass'n v. Zaruba, 2014 IL\nApp (2d) 140071, ¶ 27 (\" The regulations make clear that the public is not entitled to view or\npossess data that is transmitted through, received through, or stored in LEADS.\"). \n\nThis office's review of the background check report confirmed that certain\n\ninformation was generated from LEADS. Members of the public, including individuals such as\nrequesting records about themselves, are not among the parties authorized to access\nLEADS data under section 1240. 30(c) of title 20 of the Administrative Code (20 Ill. Adm. Code\n1240.30(c) (2020), last amended at 23 Ill. Reg. 7521, effective June 18, 1999). Because the\n\n7 That provision implements section 7 of the Illinois Criminal Identification Act (20 ILCS 2630/ 7\n\nPolice Department is specifically prohibited from disseminating LEADS data to unauthorized\nparties, the Police Department did not improperly withhold certain parts of the report pursuant\nsection 7(1)(a) of FOIA. \n\nto\n\nHowever, the Department did not illustrate that all of the information in the report\n\ndriving and financial history was specifically generated from the\n\nconcerning\nLEADS database. This office's review also determined that some of the information is general in\nnature. General\ninformation that is obtained from the LEADS database and incorporated into an\ninvestigative report is not exempt under section 7(1)(a) of FOIA. See Ill. Att'y Gen. PAC Req. \nRev. Ltr. 34767, issued August 12, 2016, at 6. Accordingly, the Police Department did not\ndemonstrate by clear and convincing evidence that certain limited parts of the report fall within\nthe scope of the 7(1)(a) exemption. \n\nSection 7(1)(d-5) of FOIA\n\nSection 7(1)(d-5) of FOIA exempts from disclosure: \n\nA law enforcement\n\nrecord created for law enforcement\n\npurposes and contained in a shared electronic record management\nsystem if the law enforcement agency that is the recipient of the\nrequest did not create the record, did not participate in or have a\nrole in any of the events which are the subject of the record, and\nonly has access to the record through the shared electronic record\nmanagement system. \n\nIn its response to this office, the Police Department asserted that certain information in the\nbackground check records is exempt because it was \"obtained by the RPD from a shared\nelectronic law enforcement database from entries made by other law enforcement and in which\nthe RPD had no other involvement, other than the receipt of the information.\" 8 Additionally, the\nPolice Department submitted a signed affidavit from Deputy Chief, Brant Hromadka, confirming\nthe fact that certain information was obtained from a shared electronic law enforcement\ndatabase. 9\n\nThis office's review confirmed that certain information the Police Department\nwithheld was obtained from other law enforcement agencies, such as the Brookfield Police\n\n8 Letter from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (March 9, 2022), \nat [3]. \n\n9E- mail from Richard E. Vogel, Tracy, Johnson & Wilson, to Christina M. Lucente-McCullough, \n\nAssistant Attorney General, Public Access Bureau (March 9, 2022). See pages 28-29 of the attachment titled\n\nDepartment. Under the plain language of section 7(1)(d-5), the withheld information is exempt\nfrom disclosure because the Police Department did not create certain records, but rather accessed\nit from a shared electronic record management system. Therefore, this office concludes that the\nPolice Department did not improperly withhold certain information pursuant to section 7(1)(d-5). \n\nHowever, the Police Department did not illustrate that all of the information in the\n\nfinancial history was specifically generated from a shared\n\nreport concerning\nelectronic law enforcement database. In the financials section of the background check report, \nthe Police Department stated that it obtained this information from an Accurint report. Based on\nan electronic search, Accurint is a service provided by LexisNexis and is open to any person who\nsubscribes to this service.10 Information that is not obtained from a shared electronic law\nenforcement database is not exempt under section 7(1)(a) of FOIA. Accordingly, the Police\nDepartment did not demonstrate by clear and convincing evidence that certain limited parts of\nthe report fall within the scope of the 7(1)(a) exemption. \n\nUnder separate cover, this office will identify for the Police Department\n\nthe\n\nportions of the background check report that fall within the asserted exemptions. This office\nrequests that the Department disclose the remaining information in the report. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n69962 f 71a proper improper 71d5 proper improper 71f proper improper 75q proper mun\n\n10 LexisNexis Risk Solutions, Accurint, available at https:// www.accurint. com."}
{"id":974,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-03-11","case_number":null,"request_numbers":["70082"],"title":"Town of Normal not required to answer questions under FOIA","filename":"70082, issued March 11, 2022.pdf","rel_path":null,"word_count":793,"summary":"The requester sought clarification and information regarding police misconduct records, but the PAC determined the request was an improper inquiry rather than a request for specific public records. Consequently, the PAC closed the file without further action.","plain_summary":"The requester asked the Town of Normal a series of questions about police misconduct files rather than requesting specific documents. The Attorney General's office explained that FOIA is designed to provide access to existing records, not to force government agencies to answer questions or provide explanations. Because the request did not ask for specific records, the PAC closed the case.","holding":"The PAC determined that the Town of Normal was not required to respond to the requester's questions because FOIA is a mechanism for requesting existing records, not for posing inquiries to a public body.","legal_question":"Whether a public body is required under FOIA to respond to a request that asks questions rather than seeking the production of specific public records.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Town of Normal","requesting_party":"Demetria Kalodimos, Nashville Banner","pac_outcome":"Closed - no further action","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought information and clarification regarding police misconduct reports related to a specific cold case investigation.","ocr_status":"ok","ocr_quality":94.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3.3/70082%2C%20issued%20March%2011%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","FOIA request","public records","request for information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMarch 11, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMs. Demetria Kalodimos\nExecutive Producer\nNashville Banner\n\nRE:  FOIA Request for Review –  2022 PAC 70082;  FOIA RR- 81-2022\n\nDear Ms. Kalodimos: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) (West 2020)).   For the reasons set forth below,  the\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn January 31, 2022,  you submitted a FOIA request to the Town of Normal\n\nTown)  stating:  \n\ncold case.   This offices response\n\nA recent Freedom of Information request by another party revealed\nthe existence of numerous documents relevant to the investigation\nof the\nreads…..\" The document retrieval in relation to misconduct by\nmember( s) of the Normal Police Department relating to the case\nnumber P75- 1942 returned a preliminary estimate of\napproximately 3,500 pages\"  I would like clarification on this: Are\nthere truly 3500 pages of misconduct reports?  If so, I would like to\nknow more about the individual officers and representatives cited\nwith misconduct\nthe largest files and most serious matters that resulted in findings\nand or penalty.   In previous documents supplied to me, it has been\nrevealed that the murder weapon in this case was taken out of\ncustody and brought to a University for some period of time. I\nsuspect this matter is one that is described in misconduct reports.  If\nso, that particular occurrance [ sic]  is of interest and needs to be\n\nin relation to this case,  and request information on\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Demetria Kalodimos\nMarch 11, 2022\nPage 2\n\nthoroughly explored.   According to Attorney General Kwame\nRaoul' s office, the statewide Professional Conduct Database\ninformation is restricted,  however such reports remain an open\nrecord in the individual police stations including Normal P.D.[1] \n\nOn February 4, 2022,  the Town denied your request,  stating that it did not maintain a record that\nwould satisfy your request and that it was not required to answer your questions.   On February\n28, 2022,  this office received the materials necessary to complete your Request for Review.  \n\nFOIA applies only to requests for public records.   5 ILCS 140/ 3(a) ( West 2020) \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords,  except as otherwise provided in Sections 7 and 8.5 of this Act.\").  FOIA \" is not intended\nto compel public bodies to interpret or advise requesters as to the meaning or significance of the\npublic records.\"   5 ILCS 140/ 3.3 (West 2020).   A FOIA request \" must reasonably identify a\npublic record and not general data, information,  or statistics.\"   Chicago Tribune Co. v. Dep't of\nFinancial &  Professional Regulation,  2014 IL App (4th) 130427, ¶ 33, 8 N.E.3d 11, 19 (2014).  \nA public body is not required to answer questions or to generate new records in response to a\nFOIA request.   Kenyon v. Garrels,  184 Ill. App. 3d 28, 32 (4th Dist. 1989).   \n\nRather than asking for copies of public records,  your communication to the Town\n\nasked questions,  made statements,  and sought the Town' s interpretation of the \" most serious\nmatters that resulted in findings and or penalty.\" 2 Because the Town was not required to respond\nto your questions,  this office will take no further action at to this matter. 3 You may wish to\nsubmit a new FOIA request to the Town that clearly describes the specific records or files you\nseek. \n\n1Request # RR-81-2022 ( January 31, 2022).  \n\n2Request # RR-81-2022 ( January 31, 2022). \n\n3In your Request for Review,  you reference a FOIA response you received on February 7, 2022, \nthat \" mischaracterized the records as private and then denied their very existence.\"  You did not provide this office\nwith copies of that response or related FOIA request.   Letter from Demetria Kalodimos,  Executive Producer,  the\nNashville Banner,  to Public Access Bureau,  Office of the Attorney General ( undated). \n\n\fs. Demetria Kalodimos\nMarch 11, 2022\nPage 3\n\nThis letter closes this file.  If you have any questions,  you may contact me at\n\nLaura. Harter@illinois. gov.  \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70082 f no fi war mun\n\ncc: \n\nVia electronic mail\nThe Honorable Angelia Huonker\nTown Clerk\nTown of Normal\n11 Uptown Circle\nP.O. Box 589\nNormal,  Illinois 61761\nahuonker@normal. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police misconduct reports in a cold case investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70082/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMarch 11, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMs. Demetria Kalodimos\nExecutive Producer\nNashville Banner\n\nRE: FOIA Request for Review – 2022 PAC 70082; FOIA RR- 81-2022\n\nDear Ms. Kalodimos: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn January 31, 2022, you submitted a FOIA request to the Town of Normal\n\nTown) stating: \n\ncold case. This offices response\n\nA recent Freedom of Information request by another party revealed\nthe existence of numerous documents relevant to the investigation\nof the\nreads…..\" The document retrieval in relation to misconduct by\nmember(s) of the Normal Police Department relating to the case\nnumber P75- 1942 returned a preliminary estimate of\napproximately 3,500 pages\" I would like clarification on this: Are\nthere truly 3500 pages of misconduct reports? If so, I would like to\nknow more about the individual officers and representatives cited\nwith misconduct\nthe largest files and most serious matters that resulted in findings\nand or penalty. In previous documents supplied to me, it has been\nrevealed that the murder weapon in this case was taken out of\ncustody and brought to a University for some period of time. I\nsuspect this matter is one that is described in misconduct reports. If\nso, that particular occurrance [ sic] is of interest and needs to be\n\nin relation to this case, and request information on\n\nthoroughly explored. According to Attorney General Kwame\nRaoul's office, the statewide Professional Conduct Database\ninformation is restricted, however such reports remain an open\nrecord in the individual police stations including Normal P.D.[1] \n\nOn February 4, 2022, the Town denied your request, stating that it did not maintain a record that\nwould satisfy your request and that it was not required to answer your questions. On February\n28, 2022, this office received the materials necessary to complete your Request for Review. \n\nFOIA applies only to requests for public records. 5 ILCS 140/ 3(a) (West 2020) \n\nEach public body shall make available to any person for inspection or copying all public\n\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\"). FOIA \" is not intended\nto compel public bodies to interpret or advise requesters as to the meaning or significance of the\npublic records.\" 5 ILCS 140/ 3.3 (West 2020). A FOIA request \" must reasonably identify a\npublic record and not general data, information, or statistics.\" Chicago Tribune Co. v. Dep't of\nFinancial & Professional Regulation, 2014 IL App (4th) 130427, ¶ 33, 8 N.E.3d 11, 19 (2014). \nA public body is not required to answer questions or to generate new records in response to a\nFOIA request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989). \n\nRather than asking for copies of public records, your communication to the Town\n\nasked questions, made statements, and sought the Town's interpretation of the \" most serious\nmatters that resulted in findings and or penalty.\" 2 Because the Town was not required to respond\nto your questions, this office will take no further action at to this matter. 3 You may wish to\nsubmit a new FOIA request to the Town that clearly describes the specific records or files you\nseek. \n\n1 Request # RR-81-2022 (January 31, 2022). \n\n2 Request # RR-81-2022 (January 31, 2022). \n\n3 In your Request for Review, you reference a FOIA response you received on February 7, 2022, \nthat \" mischaracterized the records as private and then denied their very existence.\" You did not provide this office\nwith copies of that response or related FOIA request. Letter from Demetria Kalodimos, Executive Producer, the\n\nThis letter closes this file. If you have any questions, you may contact me at\n\nLaura. Harter@illinois. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70082 f no fi war mun\n\ncc: \n\nVia electronic mail\nThe Honorable Angelia Huonker\nTown Clerk\nTown of Normal\n11 Uptown Circle\nP.O. Box 589\nNormal, Illinois 61761\nahuonker@normal. org"}
{"id":975,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-28","case_number":null,"request_numbers":["70185"],"title":"Cook County Sheriff's Office improperly withheld email under 7(1)(a), 7(1)(d-5), 7(1)(d)(v)","filename":"70185, issued September 28, 2023.pdf","rel_path":null,"word_count":1562,"summary":"The Cook County Sheriff's Office denied a FOIA request for an email regarding an incident log, citing multiple exemptions; the PAC determined the Sheriff's Office failed to meet its burden of proof to justify withholding the record.","plain_summary":"A journalist requested an email from the Cook County Sheriff's Office, which the office refused to release by claiming it was exempt from disclosure. The Attorney General's Public Access Counselor reviewed the email and found that the Sheriff's Office did not provide enough evidence to justify keeping it secret. Consequently, the PAC directed the Sheriff's Office to release the email to the requester.","holding":"The Cook County Sheriff's Office improperly withheld the requested email because it failed to prove by clear and convincing evidence that the asserted FOIA exemptions applied.","legal_question":"Whether the Cook County Sheriff's Office met its burden of proving by clear and convincing evidence that an email regarding an incident log was exempt from disclosure under FOIA sections 7(1)(a), 7(1)(d-5), and 7(1)(d)(v).","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(d-5)","7(1)(d)(v)"],"public_body":"Cook County Sheriff's Office","requesting_party":"Mr. Jonah Newman (Injustice Watch)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(d-5)","subject_description":"The request sought an email correspondence labeled 'RE: Incident Log 30 May 2020' from the Cook County Sheriff's Office.","ocr_status":"ok","ocr_quality":90.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d-5/70185%2C%20issued%20September%2028%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","law enforcement records","FOIA denial","burden of proof"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 28, 2023\n\nVia electronic mail\n\nMr. Jonah Newman\n\nEditor\n\nInjustice Watch\n\n[street address redacted for site publication -- see original PDF]\njonahnewman@injusticewatch.org\n\nVia electronic mail\n\nMs. Sarah M. Smith\n\nAssistant General Counsel - FOIA\nCook County Sheriff's Office\n\n50 West Washington Street, Room 704\nChicago, Illinois 60602\nSarah.Smith@ccsheriff.org\n\nRE: FOIA Request for Review — 2022 PAC 70185\nDear Mr. Newman and Ms. Smith:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons stated below, the\nPublic Access Bureau concludes that the Cook County Sheriff's Office (Sheriff's Office) failed to\nprove by clear and convincing evidence that the disputed record responsive to Mr. Jonah\nNewman's December 16, 2021, FOIA request is exempt from disclosure.\n\nOn that date, Mr. Newman submitted a FOIA request to the Sheriff's Office on\nbehalf of Injustice Watch seeking copies of certain e-mails from e-mail logs. On February 18,\n2022, the Sheriff's Office responded, in relevant part, by denying the e-mail \"RE: Incident Log\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 2\n\n30 May 2020\" pursuant to sections 7(1)(a), 7(1)(d-5), and 7(1)(d)(v) of FOIA.! On March 1,\n2022, Mr. Newman submitted a Request for Review contesting the denial of that e-mail.\n\nOn March 16, 2022, this office forwarded a copy of the Request for Review to the\nSheriff's Office and asked it to provide a copy of the withheld record for this office's confidential\nreview, together with a detailed description of the applicability of the asserted exemptions. On\nthat same date, the Sheriff's Office furnished those materials. On March 25, 2022, this office\nforwarded a copy of the Sheriff's Office's response to Mr. Newman; he did not submit a reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.” 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Il. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022).\n\nIn its answer to this office's inquiry letter, the Sheriff's Office explained the\ncontext of the e-mail in question as follows:\n\nWe denied production of this record after I spoke to\nDirector Aracelis Gotay of our Incident Command Center. Director\nGotay provided that the record was highly confidential and had\nonly been seen by one other person. The email concerns\n\"Operation Cermak\", an operation monitoring protests of the death\nof George Floyd and other unrest in the city on May 30, 2020.!\n\nSection 7(1)(a) and LEADS\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[i]nformation\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" The Sheriff's Office asserted that it properly denied the\nrequest under section 7(1)(a) because \"Direct Gotay provided that the email includes information\n\n15 ILCS 140/7(1)(a), (1)(d-5), (1)(d)(v) (West 2022).\n\n?E-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\nSteven Silverman (March 16, 2022).\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 3\n\nprovided by other law enforcement agencies, including information from CLEAR\"! and\nLEADS|[,]\"* though the Sheriff's Office acknowledged that \"[t]he email also includes information\ngathered while monitoring social media and other public websites.\"* The Sheriff's Office\nreferenced section 1240.80(d) of title 20 of the Administrative Code (20 III. Adm. Code\n§1240.80(d) (2022), last amended at 23 Ill. Reg. 7521, effective June 18, 1999), which provides\nthat \"LEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\" This provision specifically prohibits disclosure of\nLEADS data. See Better Government Ass'n v. Zaruba, 2014 IL App (2d) 140071, 27 (\"The\nregulations make clear that the public is not entitled to view or possess data that is transmitted\nthrough, received through, or stored in LEADS.\").\n\nThis office's review of the withheld record revealed that it does not contain any\nLEADS print-outs; no portion of the record is self-evidently LEADS data or data that appears to\nderive from LEADS, such as criminal history record information. In addition, the Sheriff's\nOffice did not identify LEADS as the source of any specific information in the withheld record.\nTherefore, the Sheriff's Office failed to prove by clear and convincing evidence that any\ninformation in the record is exempt from disclosure under section 7(1)(a) of FOIA as\nconfidential LEADS data.\n\nSection 7(1)(d)(v) of FOIA\nSection 7(1)(d)(v) of FOIA exempts from disclosure:\n\nRecords in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\n\nbut only to the extent that disclosure would:\nKOK\n\n(v) disclose unique or specialized investigative\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\nto detection, observation or investigation of incidents of\n\n5\"CLEAR\" is an acronym for \"Citizen Law Enforcement Analysis and Reporting,\" a database\nsystem used by the Chicago Police Department.\n\n4\"LEADS\" is an acronym for \"Law Enforcement Agencies Data System.\"\n\n5E-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\nSteven Silverman (March 16, 2022).\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 4\n\ncrime or misconduct, and disclosure would result in\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.]\n\nThe Sheriff's Office asserted that \"[b]ecause of the highly sensitive nature of the\ninformation in the email and the techniques used to gather the information,\" it denied the request\nunder section 7(1)(d)(v) \"to protect disclosure of unique or specialized investigative\ntechniques.\"°\n\nBare assertions without a detailed rationale do not satisfy a public body's burden\nof explaining how exemptions are applicable. See Rockford Police Benevolent & Protective\nAss'n v. Morrissey, 398 Il. App. 3d 145, 151 (2010) (citing [/linois Education Ass'n v. Illinois\nState Board of Education, 204 Ill. 2d 456, 464 (2003)). \"The public body satisfies its burden\nwhen it provides a detailed justification for the clatmed exemption which addresses the specific\ndocuments requested and allows for adequate adversarial testing.\" Turner v. Joliet Police\nDepartment, 2019 IL App (3d) 170819, | 10.\n\nThe Sheriff's Office's sparse explanation for the section 7(1)(d)(v) exemption is\ngeneralized and conclusory. The Sheriff's Office did not set forth facts suggesting that any\nunique or specialized techniques are depicted in the withheld record, nor did the Sheriff's Office\nprovide facts suggesting that any law enforcement techniques discussed in the record are not\ngenerally used and known. Further, the Sheriffs Office did not explain how or why disclosure of\nthe e-mail would cause it to endure demonstrable harm. Law enforcement monitoring of social\nmedia and other public websites is a common and generally-known technique. Accordingly, the\nSheriff's Office failed to prove by clear and convincing evidence that the e-mail is exempt from\ndisclosure under section 7(1)(d)(v).\n\nSection 7(1)(d-5) of FOIA\nSection 7(1)(d-5) of FOIA exempts from disclosure:\n\nA law enforcement record created for law enforcement\npurposes and contained in a shared electronic record management\nsystem if the law enforcement agency that is the recipient of the\nrequest did not create the record, did not participate in or have a\nrole in any of the events which are the subject of the record, and\n\nE-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\nSteven Silverman (March 16, 2022).\n\nMr. Jonah Newman\nMs. Sarah M. Smith\nSeptember 28, 2023\nPage 5\n\nonly has access to the record through the shared electronic record\nmanagement system.\n\nThe Sheriff's Office did not explain its assertion of section 7(1)(d-5) of FOIA to\ndeny the request, except perhaps by stating that the record includes information obtained from\nCLEAR. By its plain language, the section 7(1)(d-5) exemption does not apply when the law\nenforcement agency that received the FOIA request created the record. The withheld e-mail was\ncreated by the Sheriff's Office. Further, while the exemption expressly does not apply when the\nlaw enforcement agency that received the request did not have a role in the events at issue in the\nrecord, the Sheriff's Office plainly participated in the events that are the subject of the e-mail.\nLastly, although the exemption expressly applies only when the law enforcement agency solely\nhas access to the record through a shared electronic record management system, the e-mail was\nsent by the Sheriff's Office, and the Sheriff's Office did not set forth facts illustrating that the\nrecord consists of information to which it had access only through a shared electronic record\nmanagement system. Therefore, the Sheriff's Office failed to prove by clear and convincing\nevidence that the e-mail is exempt from disclosure under section 7(1)(d-5).\n\nFor the reasons stated above, to remedy its improper denial, the Public Access\nBureau asks the Sheriff's Office to provide Mr. Newman with a copy of the withheld record.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at joshua.jones@ilag.gov.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n70185 f 71a improper 71d5 improper 71dv improper co\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An email about an incident log","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70185/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 28, 2023\n\nVia electronic mail\n\nMr. Jonah Newman\n\nEditor\n\nInjustice Watch\n\n[street address redacted for site publication -- see original PDF]\njonahnewman@injusticewatch.org\n\nVia electronic mail\n\nMs. Sarah M. Smith\n\nAssistant General Counsel - FOIA\nCook County Sheriff's Office\n\n50 West Washington Street, Room 704\nChicago, Illinois 60602\nSarah.Smith@ccsheriff.org\n\nRE: FOIA Request for Review — 2022 PAC 70185\nDear Mr. Newman and Ms. Smith:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons stated below, the\nPublic Access Bureau concludes that the Cook County Sheriff's Office (Sheriff's Office) failed to\nprove by clear and convincing evidence that the disputed record responsive to Mr. Jonah\nNewman's December 16, 2021, FOIA request is exempt from disclosure.\n\nOn that date, Mr. Newman submitted a FOIA request to the Sheriff's Office on\nbehalf of Injustice Watch seeking copies of certain e-mails from e-mail logs. On February 18,\n2022, the Sheriff's Office responded, in relevant part, by denying the e-mail \"RE: Incident Log\n\n30 May 2020\" pursuant to sections 7(1)(a), 7(1)(d-5), and 7(1)(d)(v) of FOIA.! On March 1,\n2022, Mr. Newman submitted a Request for Review contesting the denial of that e-mail.\n\nOn March 16, 2022, this office forwarded a copy of the Request for Review to the\nSheriff's Office and asked it to provide a copy of the withheld record for this office's confidential\nreview, together with a detailed description of the applicability of the asserted exemptions. On\nthat same date, the Sheriff's Office furnished those materials. On March 25, 2022, this office\nforwarded a copy of the Sheriff's Office's response to Mr. Newman; he did not submit a reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.” 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Dept. of Public Health, 218 Il. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2022).\n\nIn its answer to this office's inquiry letter, the Sheriff's Office explained the\ncontext of the e-mail in question as follows:\n\nWe denied production of this record after I spoke to\nDirector Aracelis Gotay of our Incident Command Center. Director\nGotay provided that the record was highly confidential and had\nonly been seen by one other person. The email concerns\n\"Operation Cermak\", an operation monitoring protests of the death\nof George Floyd and other unrest in the city on May 30, 2020.!\n\nSection 7(1)(a) and LEADS\n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[i]nformation\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" The Sheriff's Office asserted that it properly denied the\nrequest under section 7(1)(a) because \"Direct Gotay provided that the email includes information\n\n15 ILCS 140/7(1)(a), (1)(d-5), (1)(d)(v) (West 2022).\n\n?E-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\n\nprovided by other law enforcement agencies, including information from CLEAR\"! and\nLEADS|[,]\"* though the Sheriff's Office acknowledged that \"[t]he email also includes information\ngathered while monitoring social media and other public websites.\"* The Sheriff's Office\nreferenced section 1240.80(d) of title 20 of the Administrative Code (20 III. Adm. Code\n§1240.80(d) (2022), last amended at 23 Ill. Reg. 7521, effective June 18, 1999), which provides\nthat \"LEADS data shall not be disseminated to any individual or organization that is not legally\nauthorized to have access to the information.\" This provision specifically prohibits disclosure of\nLEADS data. See Better Government Ass'n v. Zaruba, 2014 IL App (2d) 140071, 27 (\"The\nregulations make clear that the public is not entitled to view or possess data that is transmitted\nthrough, received through, or stored in LEADS.\").\n\nThis office's review of the withheld record revealed that it does not contain any\nLEADS print-outs; no portion of the record is self-evidently LEADS data or data that appears to\nderive from LEADS, such as criminal history record information. In addition, the Sheriff's\nOffice did not identify LEADS as the source of any specific information in the withheld record.\nTherefore, the Sheriff's Office failed to prove by clear and convincing evidence that any\ninformation in the record is exempt from disclosure under section 7(1)(a) of FOIA as\nconfidential LEADS data.\n\nSection 7(1)(d)(v) of FOIA\nSection 7(1)(d)(v) of FOIA exempts from disclosure:\n\nRecords in the possession of any public body created in the\ncourse of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes,\n\nbut only to the extent that disclosure would:\nKOK\n\n(v) disclose unique or specialized investigative\ntechniques other than those generally used and known or\ndisclose internal documents of correctional agencies related\nto detection, observation or investigation of incidents of\n\n5\"CLEAR\" is an acronym for \"Citizen Law Enforcement Analysis and Reporting,\" a database\nsystem used by the Chicago Police Department.\n\n4\"LEADS\" is an acronym for \"Law Enforcement Agencies Data System.\"\n\n5E-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\n\ncrime or misconduct, and disclosure would result in\ndemonstrable harm to the agency or public body that is the\nrecipient of the request[.]\n\nThe Sheriff's Office asserted that \"[b]ecause of the highly sensitive nature of the\ninformation in the email and the techniques used to gather the information,\" it denied the request\nunder section 7(1)(d)(v) \"to protect disclosure of unique or specialized investigative\ntechniques.\"°\n\nBare assertions without a detailed rationale do not satisfy a public body's burden\nof explaining how exemptions are applicable. See Rockford Police Benevolent & Protective\nAss'n v. Morrissey, 398 Il. App. 3d 145, 151 (2010) (citing [/linois Education Ass'n v. Illinois\nState Board of Education, 204 Ill. 2d 456, 464 (2003)). \"The public body satisfies its burden\nwhen it provides a detailed justification for the clatmed exemption which addresses the specific\ndocuments requested and allows for adequate adversarial testing.\" Turner v. Joliet Police\nDepartment, 2019 IL App (3d) 170819, | 10.\n\nThe Sheriff's Office's sparse explanation for the section 7(1)(d)(v) exemption is\ngeneralized and conclusory. The Sheriff's Office did not set forth facts suggesting that any\nunique or specialized techniques are depicted in the withheld record, nor did the Sheriff's Office\nprovide facts suggesting that any law enforcement techniques discussed in the record are not\ngenerally used and known. Further, the Sheriffs Office did not explain how or why disclosure of\nthe e-mail would cause it to endure demonstrable harm. Law enforcement monitoring of social\nmedia and other public websites is a common and generally-known technique. Accordingly, the\nSheriff's Office failed to prove by clear and convincing evidence that the e-mail is exempt from\ndisclosure under section 7(1)(d)(v).\n\nSection 7(1)(d-5) of FOIA\nSection 7(1)(d-5) of FOIA exempts from disclosure:\n\nA law enforcement record created for law enforcement\npurposes and contained in a shared electronic record management\nsystem if the law enforcement agency that is the recipient of the\nrequest did not create the record, did not participate in or have a\nrole in any of the events which are the subject of the record, and\n\nE-mail from Sarah M. Smith, Assistant General Counsel-FOIA, Cook County Sheriff's Office, to\n\nonly has access to the record through the shared electronic record\nmanagement system.\n\nThe Sheriff's Office did not explain its assertion of section 7(1)(d-5) of FOIA to\ndeny the request, except perhaps by stating that the record includes information obtained from\nCLEAR. By its plain language, the section 7(1)(d-5) exemption does not apply when the law\nenforcement agency that received the FOIA request created the record. The withheld e-mail was\ncreated by the Sheriff's Office. Further, while the exemption expressly does not apply when the\nlaw enforcement agency that received the request did not have a role in the events at issue in the\nrecord, the Sheriff's Office plainly participated in the events that are the subject of the e-mail.\nLastly, although the exemption expressly applies only when the law enforcement agency solely\nhas access to the record through a shared electronic record management system, the e-mail was\nsent by the Sheriff's Office, and the Sheriff's Office did not set forth facts illustrating that the\nrecord consists of information to which it had access only through a shared electronic record\nmanagement system. Therefore, the Sheriff's Office failed to prove by clear and convincing\nevidence that the e-mail is exempt from disclosure under section 7(1)(d-5).\n\nFor the reasons stated above, to remedy its improper denial, the Public Access\nBureau asks the Sheriff's Office to provide Mr. Newman with a copy of the withheld record.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\n\nany questions, please contact me at joshua.jones@ilag.gov.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n70185 f 71a improper 71d5 improper 71dv improper co"}
{"id":976,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-10-13","case_number":null,"request_numbers":["70212"],"title":"City of Chicago OEMC improperly redacted civil unrest slide deck under 7(1)(f) and 7(1)(v)","filename":"70212, issued October 13, 2022.pdf","rel_path":null,"word_count":2044,"summary":"The Chicago Tribune requested a slide deck regarding civil unrest and preparedness, which the City of Chicago partially redacted under FOIA exemptions 7(1)(f) and 7(1)(v). The PAC determined that the City failed to justify many of its redactions and ordered the release of the majority of the document.","plain_summary":"A reporter requested a presentation about the City's response to civil unrest, but the City blacked out large portions of the document claiming they were exempt from disclosure. The Attorney General's office reviewed the slides and found that the City did not have a valid legal reason to hide most of that information. The City was ordered to release the majority of the slides to the reporter.","holding":"The City of Chicago improperly redacted portions of the requested slide deck as it failed to meet its burden of proving the information was exempt under FOIA.","legal_question":"Whether the City of Chicago properly applied FOIA exemptions 7(1)(f) (pre-decisional/deliberative process) and 7(1)(v) (vulnerability assessments/security procedures) to a slide deck regarding civil unrest.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(v)"],"public_body":"City of Chicago Office of Emergency Management and Communications (OEMC)","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned a slide deck titled '2020 Civil Unrest Overview and 2021 Preparedness Workshop' detailing the City's emergency response strategies.","ocr_status":"ok","ocr_quality":93.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_v/70212%2C%20issued%20October%2013%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["civil unrest","redactions","public records","emergency management","FOIA"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 13, 2022\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune. com\n\nVia electronic mail\nMr. Marc Augustave\nSenior Counsel\nCity of Chicago Department of Law\nLegal Information and Prosecutions Division\nmarc. augustave@cityofchicago. org\n\nRE: \n\nFOIA Request for Review –  2022 PAC 70212 ( 2021- PAC- C-0071) \n\nFOIA No. F211648- 060121\n\nDear Mr. Pratt and Mr. Augustave: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that the City of Chicago ( City) Office of Emergency\nManagement and Communications ( OEMC)  improperly redacted some portions of the slide deck\nresponsive to Mr. Gregory Pratt' s June 1, 2021,  FOIA request. \n\nOn that date,  Mr. Pratt,  on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to OEMC seeking a certain April 8, 2021,  slide deck entitled \" 2020 Civil Unrest\nOverview and 2021 Preparedness Workshop.\"   The document was attached to an e-mail between\nCity of Chicago Mayor Lori Lightfoot and OEMC Director Richard Guidice.   On June 29, 2021, \nOEMC provided Mr. Pratt with a copy of the responsive slide deck,  but redacted information\npursuant to sections 7(1)( f) and 7(1)( v) of FOIA ( 5 ILCS 140/ 7(1)( f), (1)( v) (West 2021 Supp.)).  \nOn June 30, 2021,  Mr. Pratt submitted a Request for Review challenging OEMC' s redactions. \n\nOn July 2, 2021,  this office sent a copy of the Request for Review to OEMC and\nasked it to provide an un-redacted copy of the slide deck responsive to Mr. Pratt' s FOIA request, \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 2\n\ntogether with a detailed explanation of the legal and factual bases for its assertion of sections\n7(1)(f) and 7(1)( v) of FOIA.   On July 13 and 14, 2021,  OEMC provided a written answer and the\nrequested materials.   On July 14, 2021,  this office forwarded OEMC' s answer to Mr. Pratt;  he\nreplied the same day. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.   5 ILCS 140/ 1.2 (West 2020).   The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 ( 1997).   \n\nSection 7(1)( f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\nactions are formulated,  except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\"   The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n5 U.S.C. §552( b)(5) (West 2020)), 1 which applies to \" inter-  and intra- agency predecisional and\ndeliberative material.\"   Harwood v. McDonough,  344 Ill. App. 3d 242, 247 ( 1st Dist. 2003).   The\nexemption is \"intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\"   Harwood,  344 Ill. App. \n3d at 248.   Factual material generally is not within the scope of section 7(1)( f) unless it cannot be\nreasonably segregated from deliberative material and,  therefore,  would provide insight into the\npublic body's decision- making process.   State Journal- Register v. University of Illinois\nSpringfield,  2013 IL App 4th, 120881, ¶ 27, 994 N.E.2d 705, 713 ( 2014). \n\nIn its response to this office, OEMC stated that \" the redacted contents\n\ndemonstrate the opinions and deliberations by the authors in preparation for an action or policy\n\n1Because Illinois'  FOIA statute is based on the federal FOIA statute,  decisions construing the\n\nlatter,  while not controlling,  may provide helpful and relevant precedents in construing the state Act.  Margolis v. \nDirector,  Ill. Department of Revenue,  180 Ill. App.  3d 1084,  1087 ( 1st Dist. 1989). \n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 3\n\nwhich had not yet been accomplished.\" 2 Mr. Pratt argued that the slide deck appeared to be a\nhistorical review with some forward- looking guidelines. \n\nThis office has reviewed the unredacted version of the slide deck and concludes\nthat most of the redactions were of facts concerning the City's response to past events.   In other\ninstances,  the City withheld final decisions,  not deliberative or predecisional material.   Such\nfactual material and final directives may not be withheld pursuant to section 7(1)(f).  Only two\nslides,  55 and 56, contained pre-decisional opinions which may be withheld pursuant to section\n7(1)(f).  There is no indication that slides 55 or 56 were publically cited or identified by the head\nof the City or OEMC.   Accordingly,  with the exception of the redactions on slides 55 and 56, this\noffice concludes that OEMC violated FOIA by redacting other pages of the slide deck pursuant\nto section 7(1)(f). \n\nSection 7(1)( v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments,  security measures,  and response\n\npolicies or plans that are designed to identify,  prevent,  or respond\nto potential attacks upon a community' s population or systems, \nfacilities,  or installations,  the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community,  but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of the\nmeasures or the safety of the personnel who implement them or the\npublic.  Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment,  to the operation of communication\nsystems or protocols,  or to tactical operations. \n\nThis office has previously determined that section 7(1)(v) concerns homeland security and\nemergency preparations rather than routine duties carried out by an agency.   See Ill. Att'y Gen. \nPub.  Acc. Op. No. 21-005, issued June 2, 2021,  at 7; Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 48212, \nissued November 2, 2017,  at 7.     \n\nIn its response in this matter,  the OEMC stated \"[ t]he portions of the slide deck\nwhich were redacted pursuant to section 7(1)(v) of FOIA relate to OEMC' s after action report\n\nHarter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Illinois Attorney General,  at 3. \n\n2Letter from Marc Augustave,  Senior Counsel,  City of Chicago,  Department of Law, to Laura S. \n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 4\n\nrelated to the civil unrest which occurred in 2020 and OEMC' s improvement plan in preparation\nfor 2021.\" 3\n\nThe redacted slides contain detailed descriptions of the\ncity's preparedness,  provides recommendations,  and identifies\nstrengths as well as specific areas for improvement\npreparedness plan. As such,  the report describes a response plan, \nresponse policy, and vulnerability assessment designed to identify, \nprevent,  or respond to potential attacks and civil unrest.  The\nredacted slides contain detailed information concerning the\nlogistics for responding to attacks and unrest. \n\nto the city's\n\nBecause the redacted information provides detailed\ninformation concerning mobilization and tactical deployment of\nemergency response personnel,  as well as policies or plans\ndesigned to protect the community,  it is believed that its release\nwould compromise the security of emergency first responders. \nShould these security measures get into the hands of criminals or\nother individuals with nefarious intent,  this information could be\nused to circumvent\nmembers.  Furthermore,  this information could be exploited by\nthese individuals to evade or overcome safety and security\nmeasures.  Disclosure of the contents of these slides could\nreasonably be expected to jeopardize the effectiveness of the city's\nresponse,  the safety of its personnel and that of the public.[ 4] \n\nthe ability of emergency response team\n\nIn his reply, Mr. Pratt questioned whether disclosure of the withheld information\n\nwould undermine the effectiveness of the City's security plans.   He noted that the City has\nissued press releases detailing plans to shut down roads,  raise bridges,  detail cops downtown, \nbring out garbage trucks and line commercial corridors throughout the city.  * * * [ T]he city has\nrepeatedly described its tactics to prevent looting without seeing them undermined or destroyed\nby the disclosure.\" 5\n\nHarter,  Deputy Bureau Chief, Public Access Bureau,  Office of the Illinois Attorney General,  at 3. \n\n3Letter from Marc Augustave,  Senior Counsel,  City of Chicago,  Department of Law, to Laura S. \n\nHarter,  Deputy Bureau Chief, Public Access Bureau,  Office of the Illinois Attorney General,  at 4. \n\n4Letter from Marc Augustave,  Senior Counsel,  City of Chicago,  Department of Law, to Laura S. \n\n5E- mail from Gregory Pratt,  Chicago Tribune,  to [ Laura Harter] ( July 14, 2021). \n\n\fMr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 5\n\nThis office' s review of the withheld information confirmed that the slides address\n\nthe City's emergency response to past protests,  civil unrest,  and looting.   Even though many of\nthe slides concerned past events,  the overall purpose of the slide deck appears to be for training\nand for preparing the City's future responses to similar emergency situations.   Disclosure of\ncertain slides would reveal vulnerabilities and specific emergency response plans and it is\napparent from the face of the slides that their disclosure would undermine those plans' \neffectiveness. 6\n\nOther slides in the presentation,  however,  report on information that is already\npublicly known.   Specifically,  on February 18, 2021,  the City of Chicago Office of Inspector\nGeneral ( OIG) issued a detailed report on \" Chicago' s Response to the George Floyd Protests and\nUnrest.\" 7 The report described the City's response to the events following Mr. Floyd' s death on\nMay 25, 2020.   OEMC redacted from its April 8, 2021,  slide deck certain details that the OIG\nhad already disclosed at the time of Mr. Pratt' s FOIA request.   In other instances,  OEMC\nwithheld information that has been previously disclosed through other public sources.   OEMC\nhas not explained how disclosure of these publicly known details could reasonably be expected\nto jeopardize the effectiveness of the City's emergency response plans.   Other information\nredacted from the slide deck is non-specific or presented without enough context to make it\napparent how it constitutes a vulnerability assessment,  security measure,  or response policy or\nplan.   Even if some of that information could be construed as a vulnerability assessment,  security\nmeasure,  or response policy or plan, OEMC has not demonstrated how disclosure of the\ninformation would undermine the effectiveness of its emergency response plans designed to\nprotect public safety.   Accordingly,  this office concludes that OEMC has not met its burden of\nestablishing that all of the information it redacted is exempt pursuant to section 7(1)(v) of FOIA. \n\nConsistent with the conclusions in this letter,  this office requests that OEMC\n\nprovide Mr. Pratt with a copy of the responsive slide deck with redactions made only to slides\n21, 23, 27, 43, 44, 55, 56, 63-68, 75, and 87. \n\n6Slides 21, 23, 27, 43, 44, 63-68, 75, 87. \n\n7City of Chicago Office of Inspector General,  Report on Chicago' s Response to George Floyd\n\nProtests and Unrest ( February 18, 2021),  https:// igchicago. org/wp- content/ uploads/ 2021/ 02/OIG- Report- on-\nChicagos- Response- to-George- Floyd -Protests- and- Unrest. pdf. \n\n\fr. Gregory Pratt\nMr. Marc Augustave\nOctober 13, 2022\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (217)  843- 0564 or laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70212 C-0071 f 71f proper improper 71v proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A slide deck on civil unrest emergency response strategies","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70212/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nOctober 13, 2022\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune. com\n\nVia electronic mail\nMr. Marc Augustave\nSenior Counsel\nCity of Chicago Department of Law\nLegal Information and Prosecutions Division\nmarc. augustave@cityofchicago. org\n\nRE: \n\nFOIA Request for Review – 2022 PAC 70212 (2021- PAC- C-0071) \n\nFOIA No. F211648- 060121\n\nDear Mr. Pratt and Mr. Augustave: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Chicago (City) Office of Emergency\nManagement and Communications (OEMC) improperly redacted some portions of the slide deck\nresponsive to Mr. Gregory Pratt's June 1, 2021, FOIA request. \n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to OEMC seeking a certain April 8, 2021, slide deck entitled \" 2020 Civil Unrest\nOverview and 2021 Preparedness Workshop.\" The document was attached to an e-mail between\nCity of Chicago Mayor Lori Lightfoot and OEMC Director Richard Guidice. On June 29, 2021, \nOEMC provided Mr. Pratt with a copy of the responsive slide deck, but redacted information\npursuant to sections 7(1)(f) and 7(1)(v) of FOIA (5 ILCS 140/ 7(1)(f), (1)(v) (West 2021 Supp.)). \nOn June 30, 2021, Mr. Pratt submitted a Request for Review challenging OEMC's redactions. \n\nOn July 2, 2021, this office sent a copy of the Request for Review to OEMC and\nasked it to provide an un-redacted copy of the slide deck responsive to Mr. Pratt's FOIA request, \n\ntogether with a detailed explanation of the legal and factual bases for its assertion of sections\n7(1)(f) and 7(1)(v) of FOIA. On July 13 and 14, 2021, OEMC provided a written answer and the\nrequested materials. On July 14, 2021, this office forwarded OEMC's answer to Mr. Pratt; he\nreplied the same day. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\nactions are formulated, except that a specific record or relevant portion of a record shall not be\nexempt when the record is publicly cited and identified by the head of the public body.\" The\nsection 7(1)(f) exemption is equivalent to the deliberative process exemption in the federal FOIA\n5 U.S.C. §552(b)(5) (West 2020)), 1 which applies to \" inter- and intra- agency predecisional and\ndeliberative material.\" Harwood v. McDonough, 344 Ill. App. 3d 242, 247 (1st Dist. 2003). The\nexemption is \"intended to protect the communications process and encourage frank and open\ndiscussion among agency employees before a final decision is made.\" Harwood, 344 Ill. App. \n3d at 248. Factual material generally is not within the scope of section 7(1)(f) unless it cannot be\nreasonably segregated from deliberative material and, therefore, would provide insight into the\npublic body's decision- making process. State Journal- Register v. University of Illinois\nSpringfield, 2013 IL App 4th, 120881, ¶ 27, 994 N.E.2d 705, 713 (2014). \n\nIn its response to this office, OEMC stated that \" the redacted contents\n\ndemonstrate the opinions and deliberations by the authors in preparation for an action or policy\n\n1 Because Illinois' FOIA statute is based on the federal FOIA statute, decisions construing the\n\nlatter, while not controlling, may provide helpful and relevant precedents in construing the state Act. Margolis v. \n\nwhich had not yet been accomplished.\" 2 Mr. Pratt argued that the slide deck appeared to be a\nhistorical review with some forward- looking guidelines. \n\nThis office has reviewed the unredacted version of the slide deck and concludes\nthat most of the redactions were of facts concerning the City's response to past events. In other\ninstances, the City withheld final decisions, not deliberative or predecisional material. Such\nfactual material and final directives may not be withheld pursuant to section 7(1)(f). Only two\nslides, 55 and 56, contained pre-decisional opinions which may be withheld pursuant to section\n7(1)(f). There is no indication that slides 55 or 56 were publically cited or identified by the head\nof the City or OEMC. Accordingly, with the exception of the redactions on slides 55 and 56, this\noffice concludes that OEMC violated FOIA by redacting other pages of the slide deck pursuant\nto section 7(1)(f). \n\nSection 7(1)(v) of FOIA\n\nSection 7(1)(v) of FOIA exempts from disclosure: \n\nVulnerability assessments, security measures, and response\n\npolicies or plans that are designed to identify, prevent, or respond\nto potential attacks upon a community's population or systems, \nfacilities, or installations, the destruction or contamination of\nwhich would constitute a clear and present danger to the health or\nsafety of the community, but only to the extent that disclosure\ncould reasonably be expected to jeopardize the effectiveness of the\nmeasures or the safety of the personnel who implement them or the\npublic. Information exempt under this item may include such\nthings as details pertaining to the mobilization or deployment of\npersonnel or equipment, to the operation of communication\nsystems or protocols, or to tactical operations. \n\nThis office has previously determined that section 7(1)(v) concerns homeland security and\nemergency preparations rather than routine duties carried out by an agency. See Ill. Att'y Gen. \nPub. Acc. Op. No. 21-005, issued June 2, 2021, at 7; Ill. Att'y Gen. PAC Req. Rev. Ltr. 48212, \nissued November 2, 2017, at 7. \n\nIn its response in this matter, the OEMC stated \"[ t]he portions of the slide deck\nwhich were redacted pursuant to section 7(1)(v) of FOIA relate to OEMC's after action report\n\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, at 3. \n\n2 Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Laura S. \n\nrelated to the civil unrest which occurred in 2020 and OEMC's improvement plan in preparation\nfor 2021.\" 3\n\nThe redacted slides contain detailed descriptions of the\ncity's preparedness, provides recommendations, and identifies\nstrengths as well as specific areas for improvement\npreparedness plan. As such, the report describes a response plan, \nresponse policy, and vulnerability assessment designed to identify, \nprevent, or respond to potential attacks and civil unrest. The\nredacted slides contain detailed information concerning the\nlogistics for responding to attacks and unrest. \n\nto the city's\n\nBecause the redacted information provides detailed\ninformation concerning mobilization and tactical deployment of\nemergency response personnel, as well as policies or plans\ndesigned to protect the community, it is believed that its release\nwould compromise the security of emergency first responders. \nShould these security measures get into the hands of criminals or\nother individuals with nefarious intent, this information could be\nused to circumvent\nmembers. Furthermore, this information could be exploited by\nthese individuals to evade or overcome safety and security\nmeasures. Disclosure of the contents of these slides could\nreasonably be expected to jeopardize the effectiveness of the city's\nresponse, the safety of its personnel and that of the public.[ 4] \n\nthe ability of emergency response team\n\nIn his reply, Mr. Pratt questioned whether disclosure of the withheld information\n\nwould undermine the effectiveness of the City's security plans. He noted that the City has\nissued press releases detailing plans to shut down roads, raise bridges, detail cops downtown, \nbring out garbage trucks and line commercial corridors throughout the city. * * * [ T]he city has\nrepeatedly described its tactics to prevent looting without seeing them undermined or destroyed\nby the disclosure.\" 5\n\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, at 3. \n\n3 Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Laura S. \n\nHarter, Deputy Bureau Chief, Public Access Bureau, Office of the Illinois Attorney General, at 4. \n\n4 Letter from Marc Augustave, Senior Counsel, City of Chicago, Department of Law, to Laura S. \n\nThis office's review of the withheld information confirmed that the slides address\n\nthe City's emergency response to past protests, civil unrest, and looting. Even though many of\nthe slides concerned past events, the overall purpose of the slide deck appears to be for training\nand for preparing the City's future responses to similar emergency situations. Disclosure of\ncertain slides would reveal vulnerabilities and specific emergency response plans and it is\napparent from the face of the slides that their disclosure would undermine those plans' \neffectiveness. 6\n\nOther slides in the presentation, however, report on information that is already\npublicly known. Specifically, on February 18, 2021, the City of Chicago Office of Inspector\nGeneral (OIG) issued a detailed report on \" Chicago's Response to the George Floyd Protests and\nUnrest.\" 7 The report described the City's response to the events following Mr. Floyd's death on\nMay 25, 2020. OEMC redacted from its April 8, 2021, slide deck certain details that the OIG\nhad already disclosed at the time of Mr. Pratt's FOIA request. In other instances, OEMC\nwithheld information that has been previously disclosed through other public sources. OEMC\nhas not explained how disclosure of these publicly known details could reasonably be expected\nto jeopardize the effectiveness of the City's emergency response plans. Other information\nredacted from the slide deck is non-specific or presented without enough context to make it\napparent how it constitutes a vulnerability assessment, security measure, or response policy or\nplan. Even if some of that information could be construed as a vulnerability assessment, security\nmeasure, or response policy or plan, OEMC has not demonstrated how disclosure of the\ninformation would undermine the effectiveness of its emergency response plans designed to\nprotect public safety. Accordingly, this office concludes that OEMC has not met its burden of\nestablishing that all of the information it redacted is exempt pursuant to section 7(1)(v) of FOIA. \n\nConsistent with the conclusions in this letter, this office requests that OEMC\n\nprovide Mr. Pratt with a copy of the responsive slide deck with redactions made only to slides\n21, 23, 27, 43, 44, 55, 56, 63-68, 75, and 87. \n\n6 Slides 21, 23, 27, 43, 44, 63-68, 75, 87. \n\n7 City of Chicago Office of Inspector General, Report on Chicago's Response to George Floyd\n\nProtests and Unrest (February 18, 2021), https:// igchicago. org/wp- content/ uploads/ 2021/ 02/OIG- Report- on-\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70212 C-0071 f 71f proper improper 71v proper improper mun"}
{"id":977,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-05-17","case_number":null,"request_numbers":["70344","70349","70357","70358"],"title":"Niles-Maine District Library violated FOIA by failing to search trustees' personal accounts","filename":"70344 70349 70357 70358, issued May 17, 2022.pdf","rel_path":null,"word_count":4052,"summary":"The requester sought communications regarding library business sent via personal accounts, and the PAC determined the Library failed to conduct an adequate search for these records.","plain_summary":"A citizen requested emails and communications regarding library business, but the library failed to search the personal accounts of its trustees. The Attorney General's office ruled that public business conducted on private devices or accounts is still subject to FOIA and ordered the library to perform a more thorough search. This means government officials cannot hide public records simply by using personal email or text messages.","holding":"The Niles-Maine District Library violated FOIA by failing to conduct an adequate search for responsive records, including those held in personal accounts of trustees.","legal_question":"Whether a public body is required to search the personal accounts and devices of its officials for records pertaining to the transaction of public business.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Niles-Maine District Library","requesting_party":"Mr. David Sutherland (Northwest Side Coalition Against Racism & Hate)","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"FOIA search adequacy","subject_description":"The requester sought communications regarding library business that were conducted via the personal accounts and devices of library trustees.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Personal-Accounts/70344%2070349%2070357%2070358%2C%20issued%20May%2017%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personal email","public records","search adequacy","library board"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 17, 2022\n\nVia electronic mail\nMr. David Sutherland\nOrganizer\nNorthwest Side Coalition Against Racism &  Hate\ndave@nwscoalition. com\n\nVia electronic mail\nMr. Gregory J. Pritz\nAssistant Director\nBusiness and Operations Manager\nNiles- Maine District Library\n[street address redacted for site publication -- see original PDF]\ngpritz@nileslibrary.org\n\nRE:  FOIA Requests for Review:  2021 PAC C-0099 (2022 PAC 70344)  \n2021 PAC C-0102 ( 2022 PAC 70349)  \n2021 PAC C-0104 (2022 PAC 70357)  \n2021 PAC C-0105 ( 2022 PAC 70358) \n\nDear Mr. Sutherland and Mr. Pritz: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  This office has consolidated four\nRequests for Review in this determination because they concern similar issues and legal\narguments.  For the reasons that follow, the Public Access Bureau concludes that the responses\nby the Niles- Maine District Library ( Library)  to Mr. David Sutherland' s June 17, 2021,  and June\n18, 2021, FOIA requests violated FOIA. \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 •  TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 2\n\nBACKGROUND\n\n2021 PAC C-0105\n\nOn June 17, 2021, Mr. Sutherland, on behalf of the Northwest Side Coalition\n\nAgainst Racism &  Hate,  submitted a FOIA request to the Library seeking copies of all \" records\nand communications * * *  regarding the 'Communications, Technology and Procedural\nConsultant'  contract between January 1, 2021 and the date this request\nincluding\nany communications on privately owned devices.1 The request noted that a copy of the proposal\nby the consultant,  Steven Yasell,  had been previously furnished in response to another request\nbut stated:  \" It is unclear as to how this proposal was solicited by the Niles-Maine District\nLibrary Board and why.\" 2 On June 26, 2021,  the Library responded by stating it had no\nresponsive records.  On July 8, 2021, Mr. Sutherland submitted a complete Request for Review\nchallenging the completeness of the Library' s response. \n\nis processed[,]\" \n\n2021 PAC C-0099,  2021 PAC C-0102,  and 2021 PAC C-0104\n\nOn June 18,  2021,  Mr. Sutherland submitted a FOIA request to the Library\n\nseeking copies of \"all correspondence in Niles-Maine District Library Board Trustee Olivia\nHanusiak' s possession regarding library business in systems not maintained by the Niles- Maine\nDistrict Library\" from May 19, 2021, to the date of the request.3 That same day, Mr. Sutherland\nsubmitted two more FOIA requests similarly seeking copies of all correspondence regarding\nlibrary business in the possession of two other trustees, Joe Makula and Suzanne Schoenfeldt, \nthat were not maintained by the Library.   All three requests cited City of Champaign v. Madigan, \n2013 IL App (4th) 120662, 992 N.E.2d 629 (2013), and Binding Opinion 16-006 issued by the\nAttorney General for the proposition that \"[ c] ommunications pertaining to the transaction of\npublic business are public records, even on personal accounts.\" 4 On June 26, 2021, the Library\nresponded by stating that it did not possess any public records responsive to the three requests.  \nOn July 8, 2021, Mr. Sutherland submitted complete Requests for Review challenging the\ncompleteness of the Library' s responses. \n\n1FOIA request from Northwestside Coalition to Niles-Maine District Library (June 17, 2021). \n\n2FOIA request from Northwestside Coalition to Niles-Maine District Library (June 17, 2021). \n\n3FOIA request from Northwestside Coalition to Niles-Maine District Library (June 18, 2021). \n\n4FOIA requests from Northwestside Coalition to Niles -Maine District Library (June 18, 2021). \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 3\n\nOn July 19, 2021, this office forwarded copies of the four Requests for Review to\n\nthe Library and asked it to provide detailed descriptions of its searches for responsive records.  \nOn August 10, 2021, this office received a consolidated response to 2021 PAC C-0099, 2021\nPAC C-0102,  and 2021 PAC C-0104,  including supporting material for this office' s confidential\nreview.5 On August 13, 2021, this office forwarded a copy of the Library's response to Mr. \nSutherland;  he submitted a reply on August 19,  2021.   On August 24, 2021,  this office received a\nwritten response to 2021 PAC C-0105 that consisted of both a complete version of its written\nresponse for this office' s confidential\nreview and a redacted version for this office to forward to\nMr. Sutherland.6 On August 25, 2021, this office forwarded a copy of the redacted response to\nMr. Sutherland;  he did not submit a reply to that answer.   \n\nDETERMINATION\n\nFOIA is intended to ensure public access to \" full and complete information\n\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees[.]\"   5 ILCS 140/ 1 ( West 2020).   FOIA,  however, \" is not\nintended to cause an unwarranted invasion of personal privacy[.]\"   5 ILCS 140/1 (West 2020).  \nIn accordance with these policies,  FOIA requires that \"[ e] ach public body shall make available to\nany person for inspection or copying all public records, except as otherwise provided in\nSections 7 and 8.5 of this Act.\"  ( Emphasis added.)   5 ILCS 140/ 3(a) ( West 2020).   \n\nWhen presented with a FOIA request,  a public body is required to conduct a\n\nreasonable search tailored to the nature of a particular request.\"   Campbell v. U.S. Department\nof Justice,  164 F.3d 20, 28 ( D.C. Cir. 1998);  see also Steinberg v. DOJ,  23 F.3d 548,  551 ( D.C. \nCir.1994) (\" The question [ whether a public body's search was sufficient] is not whether other\nresponsive records may exist,  but whether the search itself was adequate.\").   The adequacy of a\npublic body's search for responsive records is judged by a standard of reasonableness and\ndepends upon the particular facts of the case.   Better Government Ass' n v. City of Chicago,  2020\nIL App (1st) 190038, ¶31, 169 N.E.3d 1066, 1076 (2020).  \" Although a public body is not\nrequired to perform an exhaustive search of every possible location,  the body must construe\nFOIA requests liberally and search those places that are 'reasonably likely to contain responsive\n\n5See 5 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n6See 5 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 4\n\nrecords.'\"   Better Government Ass'n, 2020 IL App (1st) 190038, ¶31, 169 N.E.3d at 1076\nquoting Judicial Watch,  Inc. v. U.S.  Dep' t of Justice,  373 F. Supp.  3d 120,  126 ( D.D.C. 2019)). \n\nSection 2(c) of FOIA ( 5 ILCS 140/ 2(c) ( West 2020))  defines \" public records\"  as\nall records * * *  pertaining to the transaction of public business, regardless of physical form or\ncharacteristics,  having been prepared by or for, or having been or being used by, received by, in\nthe possession of, or under the control of any public body.\"  A record pertains to the transaction\nof public business when it \"pertain[ s]  to 'business or community interests as opposed to private\naffairs.'  Indeed, FOIA is not concerned with an individual's private affairs.\"  City of Champaign\nv. Madigan,  2013 IL App ( 4th)  120662, ¶ 31,  992 N.E.2d 629,  637 ( 2013). \n\nIn City of Champaign v. Madigan,  2013 IL App ( 4th)  120662, ¶ 64, 992 N.E.2d\n\n629, 643 (2013), the Illinois Appellate Court affirmed a trial court's decision to uphold a binding\nopinion7 in which the Attorney General concluded that e- mails and text messages concerning\npublic business that were sent or received by city council members on their personal devices\nduring a public meeting were \" public records\"  subject to the requirements of FOIA.   The court\nheld that the communications were in the possession of the city council because a quorum was\npresent and acting collectively as a public body at the time.   City of Champaign,  2013 IL App\n4th) 120662, ¶¶40, 42-43, 992 N.E.2d at 639-40.  The court also stated that \"[ u]nder this\ninterpretation,  a message from a constituent ' pertaining to the transaction of public business' \nreceived at home by an individual city council member on his personal electronic device would\nnot be subject to FOIA\"  unless \" it was forwarded to enough members of the city council to\nconstitute a quorum for that specific body[.]\"   City of Champaign, 2013 IL App (4th) 120662, \n41, 992 N.E.2d at 639.   That reasoning,  however,  was not part of the court' s holding as records\nfrom individual constituents were not at issue in the case.  \n\nIn Better Goverment Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶36, \n\n169 N.E.3d 1066,  1078 ( 2020),  the Illinois Appellate Court upheld the lower court' s finding that\nthe defendants did not perform a reasonable search for responsive records because they did not\ninclude searches of the personal e-mails and text messages of the relevant officials.   In that case, \nthe plaintiff submitted two FOIA requests to the City of Chicago Mayor's Office and Department\nof Public Health seeking copies of certain communications involving specified officials.   Better\nGovernment Ass'n, 2020 IL App (1st) 190038, ¶3, 169 N.E.3d at 1069.  The Mayor's Office\nacknowledged that four officials named in the request used their personal e- mail accounts for\npublic business, but argued that it was not required, nor did it have the ability, to search those\naccounts for responsive records.   Better Government Ass' n, 2020 IL App ( 1st)  190038, ¶ 4, 169\nN.E.3d at 1070.  The defendants contended, in part, that those communications were not subject\n\n7Ill. Att'y Gen. Pub. Acc. Op. No. 11-006, issued November 15, 2011.  \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 5\n\nto FOIA because they \"lack the requisite nexus to a public body.\"  Better Government Ass'n, \n2020 IL App ( 1st)  190038, ¶ 19,  169 N.E.3d at 1073.   The court rejected that argument:  \n\nAlthough we agree with defendants that the individual officials\nidentified in the requests are not themselves public bodies under\nFOIA,  this does not mean that their communications about public\nbusiness cannot be public records. Instead, it is sufficient that the\ncommunications were either prepared for, used by, received by, or\nin the possession of a public body.  Better Government Ass'n, 2020\nIL App ( 1st)  190038, ¶ 19,  169 N.E.3d at 1073.   \n\nin City of\n\nThe court also observed that the officials in question,  unlike the city council\nChampaign, were not limited by quorum requirements in conducting public business and could\nmake unilateral decisions on behalf of their public bodies.   Better Government Ass' n, 2020 IL\nApp (1st) 190038, ¶19, 169 N.E.3d at 1073.  The court thus concluded that \"the e-mails and text\nmessages from those officials'  personal accounts are ' in the possession of' a public body within\nthe meaning of FOIA. It is also reasonable to conclude that, at a minimum, many such\ncommunications are prepared for or eventually used by the public body.\"   Better Government\nAss'n, 2020 IL App (1st) 190038, ¶19, 169 N.E.3d at 1073.  Because the defendants did not make\nan inquiry into whether the personal\nany responsive records, the court affirmed the lower court's order directing the defendants to\nmake that inquiry.   Better Government Ass' n, 2020 IL App ( 1st)  190038, ¶ 36, 169 N.E.3d at\n1078. \n\ntext messages and e- mail accounts of the officials contained\n\nIn addition, the Attorney General has issued a binding opinion concluding that e-\n\nmails pertaining to the transaction of public business that were sent to or from the personal e-\nmail accounts of Chicago Police Department (CPD) employees are subject to the requirements of\nFOIA.   Ill. Att' y Gen.  Pub.  Acc.  Op.  No. 16- 006,  issued August 9, 2016.   CPD contended that the\ne-mails were not public records because they were prepared and possessed by individual officers\nbut were not received and used by CPD.   Ill. Att' y Gen.  Pub.  Acc.  Op.  No. 16- 006,  at 7.  This\noffice rejected that argument as \" undercut[ting] the principle that public bodies act through their\nemployees\"  and as \" erroneously focus[ ing]  not on the content of a communication but on the\nmethod by which it is transmitted.\"   Ill. Att'y Gen. Pub. Acc. Op. No. 16-006, at 7.  The Attorney\nGeneral further concluded: \n\nInterpreting the definition of \"public records\"  in FOIA to exclude\ncommunications pertaining to the transaction of public business\nwhich were sent from or received on personal e- mail accounts of\npublic officials and public employees would be contrary to the\nGeneral Assembly' s intent of ensuring full and complete\n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 6\n\ninformation regarding the affairs of government.  Such an\ninterpretation would yield an absurd result by enabling public\nofficials to sidestep FOIA and conceal how they conduct their\npublic duties simply by communicating via personal electronic\ndevices.  Ill. Att'y Gen. Pub. Acc. Op. No. 16-006, at 7.  (Emphasis\nadded.) \n\nParties'  Arguments\n\nIn its response to this office,  the Library maintained that the \" communications\n\ntrustee cannot bind a public body or take any action individually[.]\" 9\n\ninvolving the personal accounts and devices of Library trustees\" do not constitute \"public\nrecords\"  subject to FOIA' s requirements. 8 Specifically,  the Library argued that,  based on City of\nChampaign, a communication on a trustee's private device is not subject to FOIA unless it is sent\nto a quorum of Board members or sent during a public meeting.    The Library further argued that\nthe court's ruling in Better Government Ass'n did not overturn City of Madigan, including \"the\npremises that an individual\nThe Library asserted that its trustees did not have individual authority under the Public Library\nDistrict Act of 1991 to make decisions on behalf of the Library.   Specifically,  the trustees could\nonly function as a public body when a majority of a quorum is present.\" 10 Additionally, the\nLibrary contended that Binding Opinion 16- 006 is not applicable because the binding opinion\nonly addressed whether employee communications are subject to FOIA, whereas Mr. \nSutherland' s requests concerned communications involving elected officials who did not have\nindividual decision-making powers.  Consistent with this position, the Library explained that to\nsearch for records responsive to the June 18, 2021,  requests,  it had \" asked all of the trustees at\nissue whether or not they had any responsive records to this FOIA request that would meet the\nCity of Champaign public records exceptions for private trustee communications,  and they all\nsearched their records and stated in writing that they have no responsive records[.]\" 11 The\nLibrary noted,  however,  that the proposal\nJune 17, 2021, request \" was ultimately considered and approved by the Library Board and\n\nin the e- mail that was the subject of Mr. Sutherland' s\n\nGeneral, Public Access Bureau (August 24, 2021), at 2. \n\n8Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (August 24, 2021), at 2. \n\n9Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant Attorney\n\nAttorney General, Public Access Bureau (August 24, 2021), at 2. \n\n10Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant\n\nAttorney General, Public Access Bureau (August 10, 2021), at 2. \n\n11Letter from Mallory A. Milluzzi, Klein, Thorpe &  Jenkins, Ltd., to Teresa Lim, Assistant\n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 7\n\nbecause]  there [ are]  so many questions surrounding this proposal, we are providing it in good\nfaith as part of this PAC review.\" 12\n\nIn his reply to this office,  Mr. Sutherland expressed skepticism that the Library\n\nhad no records responsive to his June 18, 2021, requests.  He contended that the Library \"ignores\nwhat has happened in the State of Illinois and nationwide and worldwide since City of\nChampaign was decided on July 16, 2013: pandemic and virtual meetings of public bodies\nattended by public officials on personal devices.\" 13 He asserted that \"[ i]t is not only conceivable\nbut practical that public officials join the 'public body' via their personal devices during this time; \nconceivable that public officials can communicate about ' public business'  on their personal\ndevices during any meeting of the 'public body' while off screen[,]\"  and that public officials\nmight otherwise engage in public business outside of physical meetings without the public being\naware of those activities.14 Mr. Sutherland stated that in response to prior FOIA requests to the\nLibrary,  he had learned that the Library' s Board president had \" proposals and letters of\nagreement that were never received via the Library network\" but instead sent to her \"only\nthrough her own private email account.\" 15 He questioned how those documents could not\nconstitute public records:  \" There is surely no requirement that a quorum of the body have also\nreceived these documents for them to be considered public records.\" 16 Mr. Sutherland also\nquestioned the adequacy of the Library's method of asking the named trustees to search their\naccounts for responsive records. \n\nConclusion\n\nThis office concludes that the Library did not perform an adequate search for\n\nrecords responsive to Mr. Sutherland's requests.  Although it was reasonable for the Library to\n\nAttorney General, Public Access Bureau (August 24, 2021), at 3. \n\n12Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant\n\nLim (August 19, 2021). \n\n13E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n14E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n15E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n16E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 8\n\nrequest that the specified trustees search their own records,17 limiting the parameters of the\nsearch to only those communications forwarded to a quorum of its trustees or transmitted during\na Library Board meeting was too narrow to locate all responsive public records.  The Library's\nargument relies on comments in City of Champaign about hypothetical\nrecords that were not at\nissue in that case, and the Library conflates the meanings of \"final action\" pursuant to the Open\nMeetings Act ( OMA) ( 5 ILCS 120/ 1 et seq. ( West 2020))  and \" public business\"  under FOIA by\nasserting that e-mails that do not involve a quorum of Library Board members are not public\nrecords because individual Library Board members do not have authority to make decisions for\nthe Library Board under the Public Library District Act of 1991.  OMA is intended \"to ensure\nthat the actions of public bodies be taken openly and that their deliberations be conducted\nopenly.\"  (Emphasis added.) 5 ILCS 120/1 (West 2020).  Because an individual trustee cannot\ntake final action attributable to the Library Board,  an e- mail reflecting an individual Library\nBoard member's decision outside of a meeting would not constitute improper final action by a\npublic body under section 2(e)  of OMA. 18 Nevertheless,  a trustee can transact \" public business\" \neither through unilateral actions or by communicating on behalf of the Board to pursue its\nobjectives.   The definition of \"public records\"  in FOIA is not limited to those records that\ndocument final actions collectively taken by public bodies; FOIA defines \"public records\"  to\nbroadly encompass \" all records * * *  pertaining to the transaction of public business, * * * \nhaving been or being used by, received by, in the possession of, or under the control of any\npublic body.\"   5 ILCS 140/ 2(c) ( West 2020).  \n\nTo construe the phrase \" possession of * * *  any public body\"  so narrowly would\nbe contrary to FOIA's purpose of ensuring full and complete information concerning the affairs\nof government.   Under the Library' s narrow interpretation,  elected officials could conceal records\ndocumenting how they conducted their public duties by simply electing not to use their public\nbodies'  electronic devices,  e- mail accounts,  and recordkeeping systems.   FOIA cannot reasonably\nbe construed as giving elected officials the option to withhold communications concerning public\nbusiness simply because the communications are maintained on personal e- mail accounts and do\nnot involve a quorum of the public body's members.  To conclude otherwise would be to\ndetermine that it is permissible for elected officials to communicate on behalf of the public body\n\n17See Nissen v. Pierce County, 183 Wash. 2d 863, 886-87, 357 P.3d 45, 57 (Wash. 2015) \n\nA]gency employees are responsible for searching their files, devices, and accounts for records responsive to a\n\nrelevant [ public records]  request. * * *  When done in good faith, this procedure allows an agency to fulfill its\nresponsibility to search for and disclose records without unnecessarily treading on the constitutional rights of its\nemployees.\"). \n\n18Section 2(e) of OMA (5 ILCS 120/2(e) ( West 2020), as amended by Public Act 102-558,  \n\neffective August 20, 2021; 102-237, effective January 1, 2022) provides:  \" Final action shall be preceded by a public\nrecital of the nature of the matter being considered and other information that will inform the public of the business\nbeing conducted.\"   \n\n\fr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 9\n\nthey represent in secret so long as they use personal devices and accounts and do not copy a\nsufficient number of their fellow members.   See Ill. Att' y Gen.  Req.  Rev.  Ltr. 49623,  issued\nFebruary 14, 2018 (concluding that e-mail communications sent by a county board member on\nhis personal account would be subject to FOIA if they pertained to the transaction of the county' s\nbusiness). \n\nAlthough the Library has now provided Mr. Sutherland with a copy of the e-mail\nto the Board President and it is therefore no longer at issue, \n\nin which Mr. Yasell sent a proposal\nthe record nevertheless illustrates how communications on trustees' private accounts can be\npublic records.   On May 18,  2021,  Mr. Yasell sent an e-mail to the Board President' s personal e-\nmail with a proposal that indicated it was \" From: Yissilmissil Productions\" and \" To: Niles-Maine\nDistrict Library[.]\" 19 Even though the e- mail conveying the proposal was sent to the Board\nPresident's personal e-mail address and did not copy a quorum of Board members, it was clearly\nprepared for the Library.   The Board President received the communication because of her role\nwith the Board, and it would be absurd to conclude that the transmittal e-mail was not a public\nrecord solely because the Board President could not act alone in approving the proposal.  \nFurther, it is reasonable to conclude that any preliminary communications with individual\ntrustees and other documents prepared for and used by the Board are public records subject to\nFOIA, regardless of how they were transmitted. \n\nThis office requests that the Library ask the trustees to perform additional\n\nsearches of their personal accounts and devices for any responsive communications pertaining to\nLibrary business within the specified time period.  The Library should disclose copies of any\nresponsive records to Mr. Sutherland,  subject to any permissible redactions.   \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\nC-0099 C-0102 C-0104 C-0105 f consol 3a search improper lib\n\n19E- mail from Steve Yassell to Joe Makula and Carolyn Drblik (May 18, 2021). \n\n\fMr. David Sutherland\nMr. Gregory J. Pritz\nMay 17,  2022\nPage 10\n\ncc: \n\nVia electronic mail\nMs. Mallory Milluzzi\nAttorney for Niles-Maines District Library\nKlein,  Thorpe &  Jenkins\n20 North Wacker Drive\nChicago,  Illinois 60606\nmamilluzzi@ktjlaw.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Library trustees' communications via personal accounts","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70344/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 17, 2022\n\nVia electronic mail\nMr. David Sutherland\nOrganizer\nNorthwest Side Coalition Against Racism & Hate\ndave@nwscoalition. com\n\nVia electronic mail\nMr. Gregory J. Pritz\nAssistant Director\nBusiness and Operations Manager\nNiles- Maine District Library\n[street address redacted for site publication -- see original PDF]\ngpritz@nileslibrary.org\n\nRE: FOIA Requests for Review: 2021 PAC C-0099 (2022 PAC 70344) \n2021 PAC C-0102 (2022 PAC 70349) \n2021 PAC C-0104 (2022 PAC 70357) \n2021 PAC C-0105 (2022 PAC 70358) \n\nDear Mr. Sutherland and Mr. Pritz: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). This office has consolidated four\nRequests for Review in this determination because they concern similar issues and legal\narguments. For the reasons that follow, the Public Access Bureau concludes that the responses\nby the Niles- Maine District Library (Library) to Mr. David Sutherland's June 17, 2021, and June\n18, 2021, FOIA requests violated FOIA. \n\nBACKGROUND\n\n2021 PAC C-0105\n\nOn June 17, 2021, Mr. Sutherland, on behalf of the Northwest Side Coalition\n\nAgainst Racism & Hate, submitted a FOIA request to the Library seeking copies of all \" records\nand communications * * * regarding the 'Communications, Technology and Procedural\nConsultant' contract between January 1, 2021 and the date this request\nincluding\nany communications on privately owned devices.1 The request noted that a copy of the proposal\nby the consultant, Steven Yasell, had been previously furnished in response to another request\nbut stated: \" It is unclear as to how this proposal was solicited by the Niles-Maine District\nLibrary Board and why.\" 2 On June 26, 2021, the Library responded by stating it had no\nresponsive records. On July 8, 2021, Mr. Sutherland submitted a complete Request for Review\nchallenging the completeness of the Library's response. \n\nis processed[,]\" \n\n2021 PAC C-0099, 2021 PAC C-0102, and 2021 PAC C-0104\n\nOn June 18, 2021, Mr. Sutherland submitted a FOIA request to the Library\n\nseeking copies of \"all correspondence in Niles-Maine District Library Board Trustee Olivia\nHanusiak's possession regarding library business in systems not maintained by the Niles- Maine\nDistrict Library\" from May 19, 2021, to the date of the request.3 That same day, Mr. Sutherland\nsubmitted two more FOIA requests similarly seeking copies of all correspondence regarding\nlibrary business in the possession of two other trustees, Joe Makula and Suzanne Schoenfeldt, \nthat were not maintained by the Library. All three requests cited City of Champaign v. Madigan, \n2013 IL App (4th) 120662, 992 N.E.2d 629 (2013), and Binding Opinion 16-006 issued by the\nAttorney General for the proposition that \"[ c] ommunications pertaining to the transaction of\npublic business are public records, even on personal accounts.\" 4 On June 26, 2021, the Library\nresponded by stating that it did not possess any public records responsive to the three requests. \nOn July 8, 2021, Mr. Sutherland submitted complete Requests for Review challenging the\ncompleteness of the Library's responses. \n\n1FOIA request from Northwestside Coalition to Niles-Maine District Library (June 17, 2021). \n\n2FOIA request from Northwestside Coalition to Niles-Maine District Library (June 17, 2021). \n\n3FOIA request from Northwestside Coalition to Niles-Maine District Library (June 18, 2021). \n\n4FOIA requests from Northwestside Coalition to Niles -Maine District Library (June 18, 2021). \n\nOn July 19, 2021, this office forwarded copies of the four Requests for Review to\n\nthe Library and asked it to provide detailed descriptions of its searches for responsive records. \nOn August 10, 2021, this office received a consolidated response to 2021 PAC C-0099, 2021\nPAC C-0102, and 2021 PAC C-0104, including supporting material for this office's confidential\nreview.5 On August 13, 2021, this office forwarded a copy of the Library's response to Mr. \nSutherland; he submitted a reply on August 19, 2021. On August 24, 2021, this office received a\nwritten response to 2021 PAC C-0105 that consisted of both a complete version of its written\nresponse for this office's confidential\nreview and a redacted version for this office to forward to\nMr. Sutherland.6 On August 25, 2021, this office forwarded a copy of the redacted response to\nMr. Sutherland; he did not submit a reply to that answer. \n\nDETERMINATION\n\nFOIA is intended to ensure public access to \" full and complete information\n\nregarding the affairs of government and the official acts and policies of those who represent them\nas public officials and public employees[.]\" 5 ILCS 140/ 1 (West 2020). FOIA, however, \" is not\nintended to cause an unwarranted invasion of personal privacy[.]\" 5 ILCS 140/1 (West 2020). \nIn accordance with these policies, FOIA requires that \"[ e] ach public body shall make available to\nany person for inspection or copying all public records, except as otherwise provided in\nSections 7 and 8.5 of this Act.\" (Emphasis added.) 5 ILCS 140/ 3(a) (West 2020). \n\nWhen presented with a FOIA request, a public body is required to conduct a\n\nreasonable search tailored to the nature of a particular request.\" Campbell v. U.S. Department\nof Justice, 164 F.3d 20, 28 (D.C. Cir. 1998); see also Steinberg v. DOJ, 23 F.3d 548, 551 (D.C. \nCir.1994) (\" The question [ whether a public body's search was sufficient] is not whether other\nresponsive records may exist, but whether the search itself was adequate.\"). The adequacy of a\npublic body's search for responsive records is judged by a standard of reasonableness and\ndepends upon the particular facts of the case. Better Government Ass' n v. City of Chicago, 2020\nIL App (1st) 190038, ¶31, 169 N.E.3d 1066, 1076 (2020). \" Although a public body is not\nrequired to perform an exhaustive search of every possible location, the body must construe\nFOIA requests liberally and search those places that are 'reasonably likely to contain responsive\n\n5 See 5 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\n6 See 5 ILCS 140/9.5(d) (West 2020) (\" The Public Access Counselor shall forward a copy of the\n\nanswer to the person submitting the request for review, with any alleged confidential information to which the\n\nrecords.'\" Better Government Ass'n, 2020 IL App (1st) 190038, ¶31, 169 N.E.3d at 1076\nquoting Judicial Watch, Inc. v. U.S. Dep' t of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019)). \n\nSection 2(c) of FOIA (5 ILCS 140/ 2(c) (West 2020)) defines \" public records\" as\nall records * * * pertaining to the transaction of public business, regardless of physical form or\ncharacteristics, having been prepared by or for, or having been or being used by, received by, in\nthe possession of, or under the control of any public body.\" A record pertains to the transaction\nof public business when it \"pertain[ s] to 'business or community interests as opposed to private\naffairs.' Indeed, FOIA is not concerned with an individual's private affairs.\" City of Champaign\nv. Madigan, 2013 IL App (4th) 120662, ¶ 31, 992 N.E.2d 629, 637 (2013). \n\nIn City of Champaign v. Madigan, 2013 IL App (4th) 120662, ¶ 64, 992 N.E.2d\n\n629, 643 (2013), the Illinois Appellate Court affirmed a trial court's decision to uphold a binding\nopinion7 in which the Attorney General concluded that e- mails and text messages concerning\npublic business that were sent or received by city council members on their personal devices\nduring a public meeting were \" public records\" subject to the requirements of FOIA. The court\nheld that the communications were in the possession of the city council because a quorum was\npresent and acting collectively as a public body at the time. City of Champaign, 2013 IL App\n4th) 120662, ¶¶40, 42-43, 992 N.E.2d at 639-40. The court also stated that \"[ u]nder this\ninterpretation, a message from a constituent ' pertaining to the transaction of public business' \nreceived at home by an individual city council member on his personal electronic device would\nnot be subject to FOIA\" unless \" it was forwarded to enough members of the city council to\nconstitute a quorum for that specific body[.]\" City of Champaign, 2013 IL App (4th) 120662, \n41, 992 N.E.2d at 639. That reasoning, however, was not part of the court's holding as records\nfrom individual constituents were not at issue in the case. \n\nIn Better Goverment Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶36, \n\n169 N.E.3d 1066, 1078 (2020), the Illinois Appellate Court upheld the lower court's finding that\nthe defendants did not perform a reasonable search for responsive records because they did not\ninclude searches of the personal e-mails and text messages of the relevant officials. In that case, \nthe plaintiff submitted two FOIA requests to the City of Chicago Mayor's Office and Department\nof Public Health seeking copies of certain communications involving specified officials. Better\nGovernment Ass'n, 2020 IL App (1st) 190038, ¶3, 169 N.E.3d at 1069. The Mayor's Office\nacknowledged that four officials named in the request used their personal e- mail accounts for\npublic business, but argued that it was not required, nor did it have the ability, to search those\naccounts for responsive records. Better Government Ass' n, 2020 IL App (1st) 190038, ¶ 4, 169\nN.E.3d at 1070. The defendants contended, in part, that those communications were not subject\n\nto FOIA because they \"lack the requisite nexus to a public body.\" Better Government Ass'n, \n2020 IL App (1st) 190038, ¶ 19, 169 N.E.3d at 1073. The court rejected that argument: \n\nAlthough we agree with defendants that the individual officials\nidentified in the requests are not themselves public bodies under\nFOIA, this does not mean that their communications about public\nbusiness cannot be public records. Instead, it is sufficient that the\ncommunications were either prepared for, used by, received by, or\nin the possession of a public body. Better Government Ass'n, 2020\nIL App (1st) 190038, ¶ 19, 169 N.E.3d at 1073. \n\nin City of\n\nThe court also observed that the officials in question, unlike the city council\nChampaign, were not limited by quorum requirements in conducting public business and could\nmake unilateral decisions on behalf of their public bodies. Better Government Ass' n, 2020 IL\nApp (1st) 190038, ¶19, 169 N.E.3d at 1073. The court thus concluded that \"the e-mails and text\nmessages from those officials' personal accounts are ' in the possession of' a public body within\nthe meaning of FOIA. It is also reasonable to conclude that, at a minimum, many such\ncommunications are prepared for or eventually used by the public body.\" Better Government\nAss'n, 2020 IL App (1st) 190038, ¶19, 169 N.E.3d at 1073. Because the defendants did not make\nan inquiry into whether the personal\nany responsive records, the court affirmed the lower court's order directing the defendants to\nmake that inquiry. Better Government Ass' n, 2020 IL App (1st) 190038, ¶ 36, 169 N.E.3d at\n1078. \n\ntext messages and e- mail accounts of the officials contained\n\nIn addition, the Attorney General has issued a binding opinion concluding that e-\n\nmails pertaining to the transaction of public business that were sent to or from the personal e-\nmail accounts of Chicago Police Department (CPD) employees are subject to the requirements of\nFOIA. Ill. Att' y Gen. Pub. Acc. Op. No. 16- 006, issued August 9, 2016. CPD contended that the\ne-mails were not public records because they were prepared and possessed by individual officers\nbut were not received and used by CPD. Ill. Att' y Gen. Pub. Acc. Op. No. 16- 006, at 7. This\noffice rejected that argument as \" undercut[ting] the principle that public bodies act through their\nemployees\" and as \" erroneously focus[ ing] not on the content of a communication but on the\nmethod by which it is transmitted.\" Ill. Att'y Gen. Pub. Acc. Op. No. 16-006, at 7. The Attorney\nGeneral further concluded: \n\nInterpreting the definition of \"public records\" in FOIA to exclude\n\ninformation regarding the affairs of government. Such an\ninterpretation would yield an absurd result by enabling public\nofficials to sidestep FOIA and conceal how they conduct their\npublic duties simply by communicating via personal electronic\ndevices. Ill. Att'y Gen. Pub. Acc. Op. No. 16-006, at 7. (Emphasis\nadded.) \n\nParties' Arguments\n\nIn its response to this office, the Library maintained that the \" communications\n\ntrustee cannot bind a public body or take any action individually[.]\" 9\n\ninvolving the personal accounts and devices of Library trustees\" do not constitute \"public\nrecords\" subject to FOIA's requirements. 8 Specifically, the Library argued that, based on City of\nChampaign, a communication on a trustee's private device is not subject to FOIA unless it is sent\nto a quorum of Board members or sent during a public meeting. The Library further argued that\nthe court's ruling in Better Government Ass'n did not overturn City of Madigan, including \"the\npremises that an individual\nThe Library asserted that its trustees did not have individual authority under the Public Library\nDistrict Act of 1991 to make decisions on behalf of the Library. Specifically, the trustees could\nonly function as a public body when a majority of a quorum is present.\" 10 Additionally, the\nLibrary contended that Binding Opinion 16- 006 is not applicable because the binding opinion\nonly addressed whether employee communications are subject to FOIA, whereas Mr. \nSutherland's requests concerned communications involving elected officials who did not have\nindividual decision-making powers. Consistent with this position, the Library explained that to\nsearch for records responsive to the June 18, 2021, requests, it had \" asked all of the trustees at\nissue whether or not they had any responsive records to this FOIA request that would meet the\nCity of Champaign public records exceptions for private trustee communications, and they all\nsearched their records and stated in writing that they have no responsive records[.]\" 11 The\nLibrary noted, however, that the proposal\nJune 17, 2021, request \" was ultimately considered and approved by the Library Board and\n\nin the e- mail that was the subject of Mr. Sutherland's\n\nGeneral, Public Access Bureau (August 24, 2021), at 2. \n\n8 Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau (August 24, 2021), at 2. \n\n9 Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant Attorney\n\nbecause] there [ are] so many questions surrounding this proposal, we are providing it in good\nfaith as part of this PAC review.\" 12\n\nIn his reply to this office, Mr. Sutherland expressed skepticism that the Library\n\nhad no records responsive to his June 18, 2021, requests. He contended that the Library \"ignores\nwhat has happened in the State of Illinois and nationwide and worldwide since City of\nChampaign was decided on July 16, 2013: pandemic and virtual meetings of public bodies\nattended by public officials on personal devices.\" 13 He asserted that \"[ i]t is not only conceivable\nbut practical that public officials join the 'public body' via their personal devices during this time; \nconceivable that public officials can communicate about ' public business' on their personal\ndevices during any meeting of the 'public body' while off screen[,]\" and that public officials\nmight otherwise engage in public business outside of physical meetings without the public being\naware of those activities.14 Mr. Sutherland stated that in response to prior FOIA requests to the\nLibrary, he had learned that the Library's Board president had \" proposals and letters of\nagreement that were never received via the Library network\" but instead sent to her \"only\nthrough her own private email account.\" 15 He questioned how those documents could not\nconstitute public records: \" There is surely no requirement that a quorum of the body have also\nreceived these documents for them to be considered public records.\" 16 Mr. Sutherland also\nquestioned the adequacy of the Library's method of asking the named trustees to search their\naccounts for responsive records. \n\nConclusion\n\nThis office concludes that the Library did not perform an adequate search for\n\nrecords responsive to Mr. Sutherland's requests. Although it was reasonable for the Library to\n\nAttorney General, Public Access Bureau (August 24, 2021), at 3. \n\n12 Letter from Mallory Milluzzi, Klein, Thorpe and Jenkins, Ltd., to Teresa Lim, Assistant\n\nLim (August 19, 2021). \n\n13E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n14E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n15E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nLim (August 19, 2021). \n\n16E- mail from David Sutherland, Northwest Side Coalition Against Racism and Hate, to [Teresa] \n\nrequest that the specified trustees search their own records,17 limiting the parameters of the\nsearch to only those communications forwarded to a quorum of its trustees or transmitted during\na Library Board meeting was too narrow to locate all responsive public records. The Library's\nargument relies on comments in City of Champaign about hypothetical\nrecords that were not at\nissue in that case, and the Library conflates the meanings of \"final action\" pursuant to the Open\nMeetings Act (OMA) (5 ILCS 120/ 1 et seq. (West 2020)) and \" public business\" under FOIA by\nasserting that e-mails that do not involve a quorum of Library Board members are not public\nrecords because individual Library Board members do not have authority to make decisions for\nthe Library Board under the Public Library District Act of 1991. OMA is intended \"to ensure\nthat the actions of public bodies be taken openly and that their deliberations be conducted\nopenly.\" (Emphasis added.) 5 ILCS 120/1 (West 2020). Because an individual trustee cannot\ntake final action attributable to the Library Board, an e- mail reflecting an individual Library\nBoard member's decision outside of a meeting would not constitute improper final action by a\npublic body under section 2(e) of OMA. 18 Nevertheless, a trustee can transact \" public business\" \neither through unilateral actions or by communicating on behalf of the Board to pursue its\nobjectives. The definition of \"public records\" in FOIA is not limited to those records that\ndocument final actions collectively taken by public bodies; FOIA defines \"public records\" to\nbroadly encompass \" all records * * * pertaining to the transaction of public business, * * * \nhaving been or being used by, received by, in the possession of, or under the control of any\npublic body.\" 5 ILCS 140/ 2(c) (West 2020). \n\nTo construe the phrase \" possession of * * * any public body\" so narrowly would\nbe contrary to FOIA's purpose of ensuring full and complete information concerning the affairs\nof government. Under the Library's narrow interpretation, elected officials could conceal records\ndocumenting how they conducted their public duties by simply electing not to use their public\nbodies' electronic devices, e- mail accounts, and recordkeeping systems. FOIA cannot reasonably\nbe construed as giving elected officials the option to withhold communications concerning public\nbusiness simply because the communications are maintained on personal e- mail accounts and do\nnot involve a quorum of the public body's members. To conclude otherwise would be to\ndetermine that it is permissible for elected officials to communicate on behalf of the public body\n\n17 See Nissen v. Pierce County, 183 Wash. 2d 863, 886-87, 357 P.3d 45, 57 (Wash. 2015) \n\nA]gency employees are responsible for searching their files, devices, and accounts for records responsive to a\n\nrelevant [ public records] request. * * * When done in good faith, this procedure allows an agency to fulfill its\nresponsibility to search for and disclose records without unnecessarily treading on the constitutional rights of its\nemployees.\"). \n\n18 Section 2(e) of OMA (5 ILCS 120/2(e) (West 2020), as amended by Public Act 102-558, \n\neffective August 20, 2021; 102-237, effective January 1, 2022) provides: \" Final action shall be preceded by a public\nrecital of the nature of the matter being considered and other information that will inform the public of the business\n\nthey represent in secret so long as they use personal devices and accounts and do not copy a\nsufficient number of their fellow members. See Ill. Att' y Gen. Req. Rev. Ltr. 49623, issued\nFebruary 14, 2018 (concluding that e-mail communications sent by a county board member on\nhis personal account would be subject to FOIA if they pertained to the transaction of the county's\nbusiness). \n\nAlthough the Library has now provided Mr. Sutherland with a copy of the e-mail\nto the Board President and it is therefore no longer at issue, \n\nin which Mr. Yasell sent a proposal\nthe record nevertheless illustrates how communications on trustees' private accounts can be\npublic records. On May 18, 2021, Mr. Yasell sent an e-mail to the Board President's personal e-\nmail with a proposal that indicated it was \" From: Yissilmissil Productions\" and \" To: Niles-Maine\nDistrict Library[.]\" 19 Even though the e- mail conveying the proposal was sent to the Board\nPresident's personal e-mail address and did not copy a quorum of Board members, it was clearly\nprepared for the Library. The Board President received the communication because of her role\nwith the Board, and it would be absurd to conclude that the transmittal e-mail was not a public\nrecord solely because the Board President could not act alone in approving the proposal. \nFurther, it is reasonable to conclude that any preliminary communications with individual\ntrustees and other documents prepared for and used by the Board are public records subject to\nFOIA, regardless of how they were transmitted. \n\nThis office requests that the Library ask the trustees to perform additional\n\nsearches of their personal accounts and devices for any responsive communications pertaining to\nLibrary business within the specified time period. The Library should disclose copies of any\nresponsive records to Mr. Sutherland, subject to any permissible redactions. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\n\ncc: \n\nVia electronic mail\nMs. Mallory Milluzzi\nAttorney for Niles-Maines District Library\nKlein, Thorpe & Jenkins\n20 North Wacker Drive\nChicago, Illinois 60606\nmamilluzzi@ktjlaw.com"}
{"id":978,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-02","case_number":null,"request_numbers":["70498"],"title":"City of Chicago improperly withheld parking ticket locations and license plates under 7(1)(c)","filename":"70498, issued March 2, 2023.pdf","rel_path":null,"word_count":1892,"summary":"A journalist requested parking ticket data from the City of Chicago, but the City withheld location and license plate information citing privacy concerns. The PAC determined the City failed to prove these records were exempt and ordered their disclosure.","plain_summary":"A journalist asked the City of Chicago for details on parking tickets, including where they were issued and the license plate numbers of the vehicles. The City refused to provide this information, claiming it could reveal private details about drivers. The Attorney General's office disagreed, stating the City did not provide enough evidence to justify keeping the records secret, and ordered the City to release the information.","holding":"The City of Chicago Department of Finance improperly withheld ticket issuance locations and license plate numbers by failing to meet its burden of proof for the claimed exemptions.","legal_question":"Did the City of Chicago meet its burden of proof to demonstrate that parking ticket location data and license plate numbers are exempt from disclosure under FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Department of Finance","requesting_party":"Mr. Christopher Hacker (CBS Chicago)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought specific data fields for parking tickets issued by the City of Chicago between 2015 and 2022.","ocr_status":"ok","ocr_quality":96.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-5/70498%2C%20issued%20March%202%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["parking tickets","privacy","license plate","public records","data disclosure"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 2, 2023\n\nVia electronic mail\nMr. Christopher Hacker\nMulti-Platform Producer/ Data Journalist\ncmhacker@cbs. com\n\nVia electronic mail\nMr. Francis R. Davis\nFOIA Officer,  Assistant Director\nCity of Chicago Department of Finance\n[street address redacted for site publication -- see original PDF]\nfrank. davis@cityofchicago. org\n\nRE:  FOIA Request for Review –  2022 PAC 70498;  FOIA F016543- 021422\n\nDear Mr. Hacker and Mr. Davis: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Chicago ( City) Department of\nFinance ( Department)  to Mr. Christopher Hacker' s February 14, 2022,  FOIA request violated the\nrequirements of FOIA. \n\nOn that date,  Mr. Hacker,  on behalf of CBS Chicago,  submitted a FOIA request to\n\nthe Department seeking certain information concerning parking tickets the City has issued.  \nSpecifically,  he sought the following fields of information for each ticket issued from 2015 to\nFebruary 14, 2022: \n\nDate issued\nLocation issued ( address) \nReason ( e.g. city ordinance cited) \nVehicle make,  model and year\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 2\n\nLicense plate number or unique identifier for each vehicle\nticketed\nWhether the ticket was appealed\nIf appealed,  appeal outcome[ 1] \n\nOn March 9, 2022,  the Department provided Mr. Hacker with a data file that included ticket\nnumbers,  notice numbers,  dates and times the tickets were issued,  violation codes,  violation\ndescriptions,  vehicle makes,  hearing disposition,  and hearing disposition reasons.   The\nDepartment stated that pursuant to section 7(1)(c)2 of FOIA, it withheld the names of the\nindividuals to whom the vehicles were registered who received tickets in the mail.  On March 14, \n2022, Mr. Hacker filed this Request for Review alleging that the Department' s response was\nincomplete in that it did not include information on the ticket locations or the license plate or\nother unique identifiers for each vehicle ticketed.   He further explained that he did not seek the\nnames of the individuals who were ticketed,  so it is unclear why the Department stated that it\nwithheld that information. \n\nOn March 22, 2022,  this office sent a copy of the Request for Review to the\n\nDepartment and asked it to respond in writing to Mr. Hacker' s contention that the Department' s\nresponse is incomplete.   In particular,  this office asked the Department to clarify whether it\ntracks ticket locations and the license plate numbers of ticketed vehicles.   If so, this office asked\nthe Department whether it considers that information to be exempt from disclosure and the basis\nfor that position.   On March 30, 2022,  the Department responded,  asserting that the ticket\nlocation and license plate numbers are exempt from disclosure pursuant to sections 7(1)(b) 3 and\n7(1)(c) of FOIA.  On March 31, 2022,  this office forwarded the Department' s response to Mr. \nHacker;  he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/ 1.2 (West 2020).   Section 3(a) of FOIA ( 5 ILCS 140/ 3(a) ( West 2020))  further provides:  \nEach public body shall make available to any person for inspection or copying all public\nrecords,  except as otherwise provided in Sections 7 and 8.5 of this Act.\"  The exemptions from\n\nFOIA Officer ( February 14, 2022). \n\n1E- mail from Christopher Hacker,  Multi-Platform Producer/ Data Journalist,  CBS Chicago,  to\n\n25 ILCS 140/ 7(1)(c) (West 2021 Supp.). \n\n35 ILCS 140/ 7(1)(b) (West 2021 Supp.). \n\n\fMr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 3\n\ndisclosure contained in section 7 of FOIA ( 5 ILCS 140/ 7 (West 2021 Supp.))  are to be narrowly\nconstrued.   See Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, 407\n1997). \n\nIn its response to this office, the Department explained that Mr. Hacker has\n\nsubmitted several FOIA requests seeking ticket data.   The Department previously provided him\nwith ticket data from 2015 -  2021 including ticket numbers,  issue dates,  locations,  camera IDs, \nvehicle speeds,  posted speed,  fine level,  violation codes,  and descriptions.   In the FOIA request\nat issue here,  the Department provided parking \" ticket numbers,  violation codes,  fines assessed, \nand the dates and times that tickets were issued[,]\" 4 among other things.   The Department\nargued: \n\nMr. Hacker previously received a considerable amount of data\nfrom [ the Department],  including the ticket issuance addresses at\nissue here.   Since Mr. Hacker already had violation ticket numbers\nand locations,  providing this information along with license plate\nnumbers would enable the datasets to be combined [ in a manner\nthat]  could connect individual tickets to identifiable individuals.   In\norder to \" anonymize\"  this data and protect the personal privacy of\nthe ticketed parties, [ the Department]  redacted the license plate\nnumbers and the addresses of the violations pursuant to Section\n7(1)(b) and ( c).[5] \n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"  \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) (West 2020))  defines \" private information\"  to\ninclude \" personal\npossibility of attribution to any person.\" \n\nlicense plates,  except as otherwise provided by law or when compiled without\n\n4Letter from Francis R. Davis,  Freedom of Information Officer,  City of Chicago,  Department of\n\nFinance,  to Laura S. Harter,  Deputy Bureau Chief, Public Access Bureau,  Office of the Attorney General ( March 30, \n2022),  at [ 2]. \n\n5Letter from Francis R. Davis,  Freedom of Information Officer,  City of Chicago,  Department of\n\nFinance,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Attorney General ( March 30, \n2022),  at [ 2]. \n\n\fMr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 4\n\nAs an initial matter,  the Department withheld all of the license plate numbers\nwithout regard to whether they were personal rather than belonging to rental car companies, \nother businesses,  or government agencies.   Regardless of whether the license plates could be\nattributed to an individual,  if the license plate is not personal,  it is not exempt pursuant to section\n7(1)(b). \n\nAssuming some of the license plates are personal,  the Department also argued that\neven though Mr. Hacker did not request the identities of the individuals who received the tickets, \nwhen combined with the information that has already been made public,  the license plate\nnumbers at issue are attributable to specific persons.\" 6 However,  the Department has not\nexplained,  nor is it apparent to this office, how the disclosed information could be used with the\nlicense plate numbers to identify individuals.   Accordingly,  this office concludes that the\nDepartment has not met its burden of establishing that the license plate numbers are exempt\npursuant to section 7(1)(b) of FOIA.  \n\nSection 7(1)( c) of FOIA\n\nSection 7(1)( c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy,  unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"   Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject' s right to privacy outweighs any legitimate public interest in obtaining\nthe information.   The disclosure of information that bears on the public duties of public\nemployees and officials shall not be considered an invasion of personal privacy.\" \n\nThe Department argued in its response to this office that it withheld the ticket\n\nissuance location information and the license plate numbers because it wanted to prevent the data\nfrom being used to identify individuals.   As discussed above,  it is not clear how this information\ncould be used to identify individuals.   Even assuming it could be used to identify individuals,  the\ndisclosure of the identities of individuals who received parking tickets is not highly personal or\nobjectionable to a reasonable person.   A ticket,  citation,  or notice to appear is a document by\nwhich the prosecution for a violation of an ordinance is commenced,  and is therefore available\nfor public inspection unless sealed by the court. \n\nlicense plate numbers to reveal personal\n\nThe Department also contends that the ticket location could be combined with the\ninformation about individuals.   It stated that Mr. Hacker\n\n6Letter from Francis R. Davis,  Freedom of Information Officer, City of Chicago,  Department of\n\nFinance,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Attorney General ( March 30, \n2022),  at [ 4]. \n\n\fr. Christopher Hacker\nMr. Francis R. Davis\nMarch 2, 2023\nPage 5\n\nsought seven years'  worth of [the Department' s]  ticketing data, \nwhich,  when combined with license plate numbers,  allows the\nrequester to search the data set by location,  then limit by plate\nnumbers.   In this manner,  the data set would provide patterns\nwhere specific individuals are issued tickets in specific areas, \nallowing this data set to serve as a method to determine someone' s\nplace of work or the location of their home. * * *  No one that is\nissued a ticket expects that their personal\ninformation is going to\nbe made publicly available[.][ 7] \n\nThe Department' s contention that disclosure of the ticket locations and license\n\ninformation is speculative.   Even assuming\n\nplates would lead to the disclosure of highly personal\nthat the provided information could identify individuals,  the Department has not provided any\nexamples from the responsive data to support its contention that highly personal\ncould be gleaned from patterns in the data.   The Department has not established that any of the\ninformation could lead to the definitive identification of an individual' s home or workplace.  \nAccordingly,  this office concludes that the Department has not met its burden of establishing by\nclear and convincing evidence that the ticket location information and the related license plate\nnumbers are exempt from disclosure.  \n\ninformation\n\nIn accordance with the conclusions expressed above,  this office requests that the\n\nDepartment disclose to Mr. Hacker the ticket issuance locations and license plate numbers\nassociated with the tickets responsive to his request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at laura.harter@ilag. gov or (217)  843- 0564.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70498 f 71b improper 71c improper mun\n\n7Letter from Francis R. Davis,  Freedom of Information Officer,  City of Chicago,  Department of\n\nFinance,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Attorney General ( March 30, \n2022),  at [ 3]. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Parking ticket data fields from 2015 to 2022","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70498/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 2, 2023\n\nVia electronic mail\nMr. Christopher Hacker\nMulti-Platform Producer/ Data Journalist\ncmhacker@cbs. com\n\nVia electronic mail\nMr. Francis R. Davis\nFOIA Officer, Assistant Director\nCity of Chicago Department of Finance\n[street address redacted for site publication -- see original PDF]\nfrank. davis@cityofchicago. org\n\nRE: FOIA Request for Review – 2022 PAC 70498; FOIA F016543- 021422\n\nDear Mr. Hacker and Mr. Davis: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Chicago (City) Department of\nFinance (Department) to Mr. Christopher Hacker's February 14, 2022, FOIA request violated the\nrequirements of FOIA. \n\nOn that date, Mr. Hacker, on behalf of CBS Chicago, submitted a FOIA request to\n\nthe Department seeking certain information concerning parking tickets the City has issued. \nSpecifically, he sought the following fields of information for each ticket issued from 2015 to\nFebruary 14, 2022: \n\nDate issued\nLocation issued (address) \nReason (e.g. city ordinance cited) \nVehicle make, model and year\n\nLicense plate number or unique identifier for each vehicle\nticketed\nWhether the ticket was appealed\nIf appealed, appeal outcome[ 1] \n\nOn March 9, 2022, the Department provided Mr. Hacker with a data file that included ticket\nnumbers, notice numbers, dates and times the tickets were issued, violation codes, violation\ndescriptions, vehicle makes, hearing disposition, and hearing disposition reasons. The\nDepartment stated that pursuant to section 7(1)(c)2 of FOIA, it withheld the names of the\nindividuals to whom the vehicles were registered who received tickets in the mail. On March 14, \n2022, Mr. Hacker filed this Request for Review alleging that the Department's response was\nincomplete in that it did not include information on the ticket locations or the license plate or\nother unique identifiers for each vehicle ticketed. He further explained that he did not seek the\nnames of the individuals who were ticketed, so it is unclear why the Department stated that it\nwithheld that information. \n\nOn March 22, 2022, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to respond in writing to Mr. Hacker's contention that the Department's\nresponse is incomplete. In particular, this office asked the Department to clarify whether it\ntracks ticket locations and the license plate numbers of ticketed vehicles. If so, this office asked\nthe Department whether it considers that information to be exempt from disclosure and the basis\nfor that position. On March 30, 2022, the Department responded, asserting that the ticket\nlocation and license plate numbers are exempt from disclosure pursuant to sections 7(1)(b) 3 and\n7(1)(c) of FOIA. On March 31, 2022, this office forwarded the Department's response to Mr. \nHacker; he did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2020). Section 3(a) of FOIA (5 ILCS 140/ 3(a) (West 2020)) further provides: \nEach public body shall make available to any person for inspection or copying all public\nrecords, except as otherwise provided in Sections 7 and 8.5 of this Act.\" The exemptions from\n\nFOIA Officer (February 14, 2022). \n\n1E- mail from Christopher Hacker, Multi-Platform Producer/ Data Journalist, CBS Chicago, to\n\ndisclosure contained in section 7 of FOIA (5 ILCS 140/ 7 (West 2021 Supp.)) are to be narrowly\nconstrued. See Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407\n1997). \n\nIn its response to this office, the Department explained that Mr. Hacker has\n\nsubmitted several FOIA requests seeking ticket data. The Department previously provided him\nwith ticket data from 2015 - 2021 including ticket numbers, issue dates, locations, camera IDs, \nvehicle speeds, posted speed, fine level, violation codes, and descriptions. In the FOIA request\nat issue here, the Department provided parking \" ticket numbers, violation codes, fines assessed, \nand the dates and times that tickets were issued[,]\" 4 among other things. The Department\nargued: \n\nMr. Hacker previously received a considerable amount of data\nfrom [ the Department], including the ticket issuance addresses at\nissue here. Since Mr. Hacker already had violation ticket numbers\nand locations, providing this information along with license plate\nnumbers would enable the datasets to be combined [ in a manner\nthat] could connect individual tickets to identifiable individuals. In\norder to \" anonymize\" this data and protect the personal privacy of\nthe ticketed parties, [ the Department] redacted the license plate\nnumbers and the addresses of the violations pursuant to Section\n7(1)(b) and (c).[5] \n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) (West 2020)) defines \" private information\" to\ninclude \" personal\npossibility of attribution to any person.\" \n\nlicense plates, except as otherwise provided by law or when compiled without\n\n4 Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (March 30, \n2022), at [ 2]. \n\n5 Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (March 30, \n\nAs an initial matter, the Department withheld all of the license plate numbers\nwithout regard to whether they were personal rather than belonging to rental car companies, \nother businesses, or government agencies. Regardless of whether the license plates could be\nattributed to an individual, if the license plate is not personal, it is not exempt pursuant to section\n7(1)(b). \n\nAssuming some of the license plates are personal, the Department also argued that\neven though Mr. Hacker did not request the identities of the individuals who received the tickets, \nwhen combined with the information that has already been made public, the license plate\nnumbers at issue are attributable to specific persons.\" 6 However, the Department has not\nexplained, nor is it apparent to this office, how the disclosed information could be used with the\nlicense plate numbers to identify individuals. Accordingly, this office concludes that the\nDepartment has not met its burden of establishing that the license plate numbers are exempt\npursuant to section 7(1)(b) of FOIA. \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information. The disclosure of information that bears on the public duties of public\nemployees and officials shall not be considered an invasion of personal privacy.\" \n\nThe Department argued in its response to this office that it withheld the ticket\n\nissuance location information and the license plate numbers because it wanted to prevent the data\nfrom being used to identify individuals. As discussed above, it is not clear how this information\ncould be used to identify individuals. Even assuming it could be used to identify individuals, the\ndisclosure of the identities of individuals who received parking tickets is not highly personal or\nobjectionable to a reasonable person. A ticket, citation, or notice to appear is a document by\nwhich the prosecution for a violation of an ordinance is commenced, and is therefore available\nfor public inspection unless sealed by the court. \n\nlicense plate numbers to reveal personal\n\nThe Department also contends that the ticket location could be combined with the\ninformation about individuals. It stated that Mr. Hacker\n\n6 Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (March 30, \n\nsought seven years' worth of [the Department's] ticketing data, \nwhich, when combined with license plate numbers, allows the\nrequester to search the data set by location, then limit by plate\nnumbers. In this manner, the data set would provide patterns\nwhere specific individuals are issued tickets in specific areas, \nallowing this data set to serve as a method to determine someone's\nplace of work or the location of their home. * * * No one that is\nissued a ticket expects that their personal\ninformation is going to\nbe made publicly available[.][ 7] \n\nThe Department's contention that disclosure of the ticket locations and license\n\ninformation is speculative. Even assuming\n\nplates would lead to the disclosure of highly personal\nthat the provided information could identify individuals, the Department has not provided any\nexamples from the responsive data to support its contention that highly personal\ncould be gleaned from patterns in the data. The Department has not established that any of the\ninformation could lead to the definitive identification of an individual's home or workplace. \nAccordingly, this office concludes that the Department has not met its burden of establishing by\nclear and convincing evidence that the ticket location information and the related license plate\nnumbers are exempt from disclosure. \n\ninformation\n\nIn accordance with the conclusions expressed above, this office requests that the\n\nDepartment disclose to Mr. Hacker the ticket issuance locations and license plate numbers\nassociated with the tickets responsive to his request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov or (217) 843- 0564. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70498 f 71b improper 71c improper mun\n\n7 Letter from Francis R. Davis, Freedom of Information Officer, City of Chicago, Department of\n\nFinance, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General (March 30, \n2022), at [ 3]."}
{"id":979,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-08-23","case_number":null,"request_numbers":["70612"],"title":"Cook County Sheriff's Office did not violate FOIA by refusing to create a new record from existing data","filename":"70612, issued August 23, 2024.pdf","rel_path":null,"word_count":3811,"summary":"The requester sought specific metadata regarding audio recordings of calls made by individuals under electronic monitoring, but the Cook County Sheriff's Office denied the request on the basis that the records did not exist in the requested format. The PAC determined that the Sheriff's Office was not required to create a new record by compiling and manipulating data from separate databases to satisfy the request.","plain_summary":"Mr. Chapman asked the Cook County Sheriff's Office for a list of metadata related to phone calls made by people on electronic monitoring. The Sheriff's Office refused, arguing that the information wasn't already compiled in a single report. The Attorney General's office agreed, stating that FOIA does not require public bodies to create new documents or combine data from different databases to answer a request.","holding":"The Cook County Sheriff's Office did not violate FOIA because it is not required to create a new record to fulfill a request.","legal_question":"Does FOIA require a public body to create a new record by compiling and manipulating data from existing databases to satisfy a request?","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Cook County Sheriff's Office","requesting_party":"Mr. Matt Chapman","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"creation of records","subject_description":"The requester sought a compilation of metadata regarding audio recordings of calls made by individuals under electronic monitoring.","ocr_status":"ok","ocr_quality":92.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Data-Requests/70612%2C%20issued%20August%2023%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["creation of records","electronic monitoring","data compilation","FOIA request"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"August 23, 2024\n\nVia electronic mail\nMr. Matt Chapman\nmatt@mchap. io\n\nVia electronic mail\nMr. Rob Olmstead\nDeputy General Counsel for Public Policy and Information\nCook County Sheriff' s Office\n[street address redacted for site publication -- see original PDF]\nrobert. olmstead@ccsheriff. org\n\nRE:   FOIA Request for Review –  2022 PAC 70612 ( 2021- PAC- C-0191)  \n\nFOIA R019181- 073021\n\nDear Mr. Chapman and Mr. Olmstead: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1\n\nOn July 30, 2021,  Mr. Matt Chapman submitted a FOIA request to the Cook\n\nCounty Sheriff' s Office ( Sheriff' s Office)  seeking certain data for calls made concerning\nindividuals under electronic monitoring ( EM).  Specifically,  he sought:  \n\nThe following information for all audio for all calls made or\nreceived by Protocol relating to any person on EM under CCSO[:]  \n1. Person being called\n2. Relationship to person being called\n3. Whether call is for primary contact or secondary contact ( or\nother) \n\n15 ILCS 140/9.5(f) (West 2023 Supp.). \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 2\n\n4. Date and time of audio start.  \n5. Date and time of audio end.  \n6. Size of audio file.  \n7. Booking ID\nPlease limit the timeframe of this request from Jan.  1, 2020 to [ July\n30, 2021].[ 2] \n\nOn August 6, 2021,  the Sheriff' s Office informed Mr. Chapman that it had previously produced\ncall data to him in response to FOIA request number R016665- 052521.   Later the same day, Mr. \nChapman responded to the Sheriff' s Office, stating that the response to R016665- 052521 did not\nsatisfy his current request.   He clarified that his request sought information about the call\nrecordings and noted \"[ t]o the extent that Protocol BI has the ability to look up recordings by\nperson,  then the functionality,  by necessity,  exists to complete this request,  though likely through\na database query.\" 3 On August 10, 2021,  the Sheriff' s Office informed Mr. Chapman that\nProtocol' s case management system cannot query audio files in conjunction with the fields\nrequested\" 4 and stated that it could not generate a report responsive to his request.   Mr. Chapman\nthen asked the Sheriff' s Office if it could contact the database vendor to arrange for it to run a\nquery for the responsive information.   On August 11, 2021,  the Sheriff' s Office responded: \n\nThe fields you are requesting are not extractable from the case\nmanagement system as a collective.   Your request would require\ndedicated development work by County vendors to create a\ncustomized query and functionality that serves no purpose except\nto address your FOIA.  FOIA does not require the creation of a\nnew record in response to a FOIA request that is not kept in the\nnormal course of business.[ 5] \n\nLater the same day, Mr. Chapman submitted this Request for Review challenging the Sheriff' s\nOffice' s denial.   He contended that running a query in the database would not be the creation of a\nnew record. \n\nOn August 26, 2021,  this office sent a copy of the Request for Review to the\nSheriff' s Office and requested a detailed written explanation in response to Mr. Chapman' s\n\n2FOIA Request submitted by Matt Chapman. \n\nOfficer/ Legal Department] ( August 6, 2021). \n\n3Message from [ Matt Chapman]  to Elizabeth [ Scannell,  Cook County Sheriff' s Office, FOIA\n\n4Message from Beth Scannell to [Matt Chapman] ( August 10, 2021). \n\nDepartment,  to Matt Chapman ( August 11, 2021). \n\n5Message from Elizabeth Scannell,  Cook County Sheriff' s Office, FOIA Officer/ Legal\n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 3\n\nallegations.   On September 16, 2021,  the Sheriff' s Office responded.   On September 17, 2021, \nthis office forwarded the Sheriff' s Office' s response to Mr. Chapman;  he replied on September\n22, 2021.   On February 7, 2022,  Mr. Chapman submitted additional\nlight of the information in Mr. Chapman' s February 7, 2022,  correspondence,  on May 5, 2022, \nthis office sent another letter of inquiry to the Sheriff' s Office.  It responded on May 31, 2022.  \nOn June 3, 2022,  this office forwarded that response to Mr. Chapman;  he submitted a reply on\nJune 9, 2022. \n\ninformation to this office.  In\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   The requirements of FOIA apply to\npublic records,\"  which are records \" having been prepared by or for, or having been or being\nused by, received by, in the possession of, or under the control of any public body.\"   5 ILCS\n140/ 2(c) (West 2020).  \" In this expansive definition of 'public records,'  the legislature recognizes\nthat information or documentation may be stored in myriad media,  some physical and some not. \nIllinois case law has long held that electronic records may be public records subject to FOIA.\"  \nHites v. Waubonsee Community College,  2016 IL App (2d) 150836, ¶  57.  A public body must\nperform a reasonable search for responsive records under the circumstances of each request.  \nBetter Government Ass'n v. City of Chicago,  2020 IL App (1st)  190038, ¶  31.  However, \"[ a] \nrequester is entitled only to records that an agency has in fact chosen to create and retain.\"  \nYeager v. Drug Enforcement Administration,  678 F.2d 315, 321 ( D.C. Cir. 1982).   \n\nIn Hites, the Illinois Appellate Court analyzed a series of requests for information\ncontained in multiple databases.   The Hites court distinguished requests for raw data maintained\nin a public body' s databases from requests seeking information about the data, which would\nrequire the creation of new records.   The court analogized a database to a file cabinet and stated\nthat \" the data that populates the database is like the files.  FOIA permits a proper request for a\nsingle file, some of the files, or all of the files.\"   Hites, 2016 IL App (2d) 150836, ¶  71.  The\ncourt held that compiling raw data already maintained in databases and available through\ncomputerized searches of the public body' s databases did not involve the creation of new records, \neven if the public body had to create and apply computer programming or coding to retrieve the\ninformation.   Hites, 2016 IL App (2d) 150836, ¶¶  75-81.   \n\nWhile raw data that were previously compiled and available through\n\ncomputerized searches of a database are subject to disclosure, \" FOIA was not designed to\ncompel the compilation of data not ordinarily kept by the public body.\"   Hites, 2016 IL App (2d) \n150836, ¶¶  75-80 (public body not obligated under FOIA to provide a listing of search results or\nto create records reflecting totals that had not been previously compiled from its data);  see also\nChicago Tribune Co. v. Dep't of Financial &  Professional Regulation,  2014 IL App (4th) \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 4\n\n130427, ¶  37 (State agency not required to respond to a request seeking the number of claims\nagainst certain doctors by calculating the number and creating a new record).   Additionally, \nFOIA does not require a public body to manually compile information from multiple sources and\ncreate a custom report for a requester.   See Martinez v. Cook Cty. State' s Attorney' s Office, 2018\nIL App 1st 163153, ¶  25 ( request that would have required public body to manually review its\nfiles and compile each \" instance\"  in which it \"used\"  specific information did not reasonably\ndescribe a record but instead was a general request for data that was \" scattered throughout [ the\npublic body' s]  records\");  see also Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 61967,  issued November 18, \n2020,  at 4-5 (concluding that where school district did not maintain responsive demographic and\ntesting data in one database,  but rather across multiple sources and departments, \" FOIA does not\nrequire a public body to collect,  cross reference,  match,  and collate various data scattered\nthrough its departments and multiple databases.\"). \n\nArguments\n\nIn its September 17, 2021,  answer to this office, the Sheriff' s Office explained that\nCook County contracted with Track Group,  Inc. to provide equipment and technology for its EM\nprograms \" and Track Group has in turn subcontracted with B.I. Incorporated ( d/b/a Protocol)  to\nprovide call center monitoring and case management services.   B.I. Incorporated uses a case\nmanagement system called Protocol to track alerts generated by EM devices and how those alerts\nare resolved.\" 6 The Sheriff' s Office explained that B.I. maintains records of outbound calls using\na telephone switch,  but that data is maintained separately from the Protocol database, \" meaning\nthere is no formal data integration between the telephone switch and the case management\nsystem.\" 7 Neither Protocol nor the telephone switch database contains all of the information Mr. \nChapman requested: \n\nAudio files are maintained separately by B.I. Incorporated and are\ncategorized and retrievable based on the outbound call number.  \nThey are not maintained or categorized by participant name or ID. \nThe data imprint of an audio file cannot be extracted in\nconjunction with other data fields related to a participant,  nor is the\naudio file stored in such a way that it captures any of the other\nfields Mr. Chapman requested.[ 8] \n\nHarter,  Deputy Bureau Chief, Public Access Counselor,  Illinois Attorney General ( September 16, 2021),  at 1. \n\n6Letter from Elizabeth Scannell,  Deputy General Counsel,  Cook County Sheriff's Office, to Laura\n\n7Henry Conforti Aff. ¶6 (June 1, 2021). \n\nHarter,  Deputy Bureau Chief,  Public Access Counselor,  Illinois Attorney General ( September 16, 2021),  at 2. \n\n8Letter from Elizabeth Scannell,  Deputy General Counsel,  Cook County Sheriff's Office, to Laura\n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 5\n\nThe Sheriff' s Office explained that while outbound call data may be exported from the telephone\nswitch database,  it would include all B.I. customers,  not just Sheriff' s Office data.   There are no\nidentifiers,  such as booking ID numbers,  within the telephone switch database by which the\nrecords could be sorted by Sheriff' s Office data. \n\nIn his September 22, 2021,  reply, Mr. Chapman suggested that the Sheriff' s Office\n\nprovide B.I. with a list of EM participants'  phone numbers and booking ID numbers.   Mr. \nChapman argued that the Sheriff' s Office or its contractors could then filter the telephone switch\ncall log records by calls made only to devices that are worn by the Sheriff' s Office' s EM\nparticipants and then provide him with information sufficient to satisfy his request.   He also\nnoted that he is aware \" that agents at the call center track their calls through notes and I'm aware\nthat the notes themselves cannot be compiled in a way to satisfy the requirements of my request\nwithout undue burden.\" 9\n\nIn response to Mr. Chapman' s suggestion,  the Sheriff' s Office explained that \"[ t]o\nfulfill Mr. Chapman' s FOIA request,  all phone numbers provided for each EM participant would\nneed to be pulled from the case management system and merged with the call data system to find\nmatches.\" 10 The Sheriff' s Office explained that: \n\na query [ in the telephone switch database]  for an individual record\ncan take 2 to 30 minutes.  We estimate that around 10,000 people\nspent at least one day on EM during the timeframe Mr. Chapman\nseeks ( 18 months).   Among those 10,000 participants,  multiple\nphone numbers may be associated with the participant ( between\nthe site host and other contacts for the participant).  The amount of\ntime and effort required to pull those records would put\nextraordinary strain on Protocol' s monitoring capabilities.[ 11] \n\n9Letter from Matt Chapman to Illinois Attorney General' s PAC Office ( September 21, 2021),  at\n\n1]. \n\n10Letter from Sarah M. Smith,  Assistant General Counsel,  FOIA Officer Law Department, \n\nSheriff' s Office of Cook County,  to Laura S. Harter,  Deputy Bureau Chief, Public Access Bureau,  Office of the\nAttorney General ( May 26, 2022),  at [ 2]. \n\n11Letter from Sarah M. Smith,  Assistant General Counsel,  FOIA Officer Law Department, \n\nSheriff' s Office of Cook County,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the\nAttorney General ( May 26, 2022),  at [ 2]. \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 6\n\nThe Sheriff' s Office stated that \"[ e] ach phone number would have to be queried separately ( with\nan estimate of 2-30 minutes for each query depending on the amount of information\navailable).\" 12\n\nMr. Chapman disputed that it would take the Sherriff' s Office a significant\n\namount of time to run the necessary query,  arguing that it should be able to run a query for all\nphone numbers at once,  particularly if the database is relational and the Sheriff' s Office can\ntherefore run a search using structured query language ( SQL). \n\nOn February 7, 2022,  Mr. Chapman provided this office with a copy of\n\ninformation he had obtained from an attorney who represents an individual who is a participant\nin the Sheriff' s Office' s EM program. 13 Specifically,  Mr. Chapman submitted a screenshot of\ninformation he believed was automatically generated by Track Group from a database containing\nEM call information.   The screenshot reflected the start time of a call, the duration of the call, the\nphone number called,  a user name,  and a reference number,  among other things,  for a specific\nSheriff' s Office EM participant.   Mr. Chapman asserted that this screenshot supports his\ncontention that the Sheriff' s Office' s contractors can run a database query to extract some or all\nof the information responsive to his request. \n\nIn response to the information submitted by Mr. Chapman,  the Sheriff' s Office\n\nstated that, without knowing more about the origin of the record,  it could only assume that it was\npulled using an individual' s phone number.   The Sheriff' s Office contended that \" Protocol and\nthe CCSO have never disputed Protocol' s capability to do this.  However,  Mr. Chapman' s FOIA\nrequest does not seek call information based on an individual participant or phone number. \nInstead,  it seeks all call data information for all CCSO EM participants between January 1, 2020\nand]  July 30, 2021.\" 14\n\nAnalysis\n\nMr. Chapman has conceded that to the extent information he sought is stored in\nProtocol' s \" Notes\"  field, it is unduly burdensome to compile that information in the manner he\nrequested.   Therefore,  the data categories at issue are booking ID number from the Protocol\ndatabase and any available outbound call data from the telephone switch database.   It is\nundisputed that the Sheriff' s Office possesses data on outbound calls to EM participants and that, \n\n12E- mail from [ Sarah Smith]  to Laura [ Harter] ( June 1, 2022). \n\npursuant to a subpoena issued to Track Group. \n\n13Mr.  Chapman informed this office that the attorney obtained the data shown in the screenshot\n\n14Letter from Sarah M. Smith,  Assistant General Counsel,  FOIA Officer Law Department, \n\nSheriff' s Office of Cook County,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the\nAttorney General ( May 26, 2022),  at [ 2]. \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 7\n\naside from the telephone numbers themselves,  the data are public records subject to disclosure. 15\nIt is also undisputed that the responsive information is stored in two separate databases.   The\nSheriff' s Office first argued that compiling the information Mr. Chapman requested \" would\nrequire dedicated development work by County vendors to build new features in the Protocol\nsystem to connect separately stored files to alert data.\" 16 The Sheriff' s Office then shifted its\nargument to assert that \" all phone numbers provided for each EM participant would need to be\npulled from [ Protocol]  and merged with the [ telephone switch database]  to find matches.   This\nmerging could require the creation of a record through a new query written by the third-party\nsoftware vendor.\" 17 The Sheriff' s Office thereby acknowledged that extracting the responsive\ncall data could be accomplished by running a query of the telephone switch database using EM\nparticipants'  phone numbers to identify responsive call data.   Rather than creating new records, \nquerying databases to extract existing data is \"[ a] n electronic search that * * *  meets the\ndefinition of 'copying'  under FOIA.\"   Hites, 2016 IL App (2d) 150836, ¶  73. \n\nThere is no query that could be run in either database,  however,  that would\n\ngenerate a result that contains both booking IDs and the requested call data.   Once the responsive\noutbound call data is extracted from the telephone switch database,  it must be compiled and\ncorrelated with the correct booking ID information.   The Sheriff' s Office did not address what\nmeasures would be required to accomplish this compilation.   Mr. Chapman suggested the use of\nautomated tables in a spreadsheet to sort and link the booking IDs with EM users'  phone\nnumbers and the related call data: \n\nThe spreadsheet works as follows:   Phone numbers,  device\n\nIDs, and CCSO booking IDs are entered into the \" Device Phone\nNumbers\"  worksheet.   The switch' s phone records can then be\ninserted into the [* * *] \" Data\"  sheet.   In the \" Data\"  worksheet,  the\nIs CCSO\"  will then reflect a 1 (or TRUE)  if that phone number' s\nwithin the list of phone numbers in the \" Device Phone Numbers\" \nworksheet.   Clicking on the dropdown at \" Is CCSO\"  and selecting\n1\" ( or TRUE)  will then filter the relevant information.[ 18] \n\n15Section 7(1)(b) of FOIA exempts from disclosure \" private information\"  and section 2(c-5) of\n\nFOIA defines \" private information\"  to include,  among other things,  personal\nWest 2021 Supp.);  5 ILCS 140/ 2(c-5) (West 2020). \n\ntelephone numbers.  5 ILCS 140/ 7(1)(b) \n\nHarter,  Deputy Bureau Chief, Public Access Counselor,  Illinois Attorney General ( September 16, 2021),  a t [3]. \n\n16Letter from Elizabeth Scannell,  Deputy General Counsel,  Cook County Sheriff' s Office, to Laura\n\n17Letter from Sarah M. Smith,  Assistant General Counsel,  FOIA Officer Law Department, \n\nSheriff' s Office of Cook County,  to Laura S. Harter,  Deputy Bureau Chief, Public Access Bureau,  Office of the\nAttorney General ( May 26, 2022),  at [ 2]. \n\n18Letter from Matt Chapman to Illinois Attorney General' s PAC Office ( September 21, 2021),  at\n\n3-4]. \n\n\fMr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 8\n\nEven if Mr. Chapman' s suggestion is feasible,  it is clear that compiling the\n\nrequested information would require more than merely running a query and extracting data from\na database;  the available information indicates that the Sheriff' s Office would have to link and\nmanipulate extracted data from two separate databases into a unique arrangement.   This office\nhas previously concluded that combining two reports to create a unique digital record constitutes\nthe creation of a new record.   Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 73026,  issued October 19, 2022, \nat 3.  FOIA does not require public bodies to manipulate data found in separate locations into\ncustom reports for requesters.   See Everytown for Gun Safety Support Fund v. BATFE, 403 F. \nSupp.  3d 343, 359 ( S.D.N.Y. 2019),  rev'd and remanded on other grounds,  984 F.3d 30 (2d Cir. \n2020) (\" whether information in a database constitutes an agency record hinges not on whether\nthe information is housed in the form requested,  but whether generating the information requires\nthe agency to engage in additional research or conduct additional analyses above and beyond the\ncontents of its database.\").   \n\nIn an e-mail to this office, Mr. Chapman cited ACLU Immigrants'  Rights Project\nv. United States Immigration &  Customs Enforcement,  58 F.4th 643, 656 ( 2d Cir. 2023),  for the\nproposition that a government agency cannot make an exempt record,  such as personal phone\nnumbers, \"' the sole 'key' or 'code'  necessary to access non-exempt records in a particular manner; \nitself use the exempt record to obtain non-exempt records in that manner;  and then invoke the\nrecord' s exempt status to deny the public similar access to the non- exempt records.'\" 19 In that\ncase,  the ACLU had requested data from United States Immigration &  Customs Enforcement\nICE) for five categories of information pertaining to stages of the deportation process.   The\nFOIA request specified that there should be a row in the spreadsheet for each individual alien\nand that the agency should substitute exempt \" A-Numbers\"  for unique identification numbers for\neach individual \" because such a substitution is necessary to allow ACLU to track individual\" \naliens across the five different categories of data.   ACLU Immigrants'  Rights Project, 58 F.4th\n643 at 648.   The United States District Court for the Southern District of New York found that\nFOIA did not require the agency to substitute unique IDs for the A-Numbers because to do so\nwould be the creation of a new record.   ACLU Immigrants'  Rights Project v. United States\nImmigration &  Customs Enforcement,  19 Civ. 7058,  2021 U.S. Dist. LEXIS 45109,  2021 WL\n918235 ( S.D.N.Y. Mar. 10, 2021).   The Second Circuit reversed,  concluding that \" to hold\notherwise could have the perverse effect of encouraging agencies to make exempt records the\nsingular means for gaining access to non-exempt records responsive to a particular query and, \nthereby,  effectively to conceal those records from the public, at least in the way responsive to the\nquery.\"  ACLU Immigrants'  Rights Project, 58 F.4th 643 at 656. \n\nThe facts here are distinguishable from ACLU Immigrants'  Rights Project in two\n\nnotable respects.   First, unlike the ACLU, Mr. Chapman' s FOIA request did not request\n\nImmigrants'  Rights Project v. United States Immigration &  Customs Enforcement,  58 F.4th 643 ( 2d Cir. 2023). \n\n19E- mail from Matt [ Chapman]  to Laura [ Harter] ( January 27, 2023),  quoting summary of ACLU\n\n\fr. Matt Chapman\nMr. Rob Olmstead\nAugust 23, 2024\nPage 9\n\ntelephone switch data in which unique identifiers were substituted for personal phone numbers. 20\nSecond,  the facts in ACLU Immigrants'  Rights Project did not involve the combination of data\nfrom two separate databases;  therefore,  the case did not address the central\n\nissue in this matter.  \n\nAccordingly,  this office concludes that preparing the information Mr. Chapman\n\nrequested would require the creation of a new record,  which is not required by FOIA.  \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (217)  843- 0564 or laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70612 C-0191 f 3d response complete co\n\n20This office has previously concluded that substituting unique codes for exempt identifying\ninformation is the creation of a new record that is not required by Illinois FOIA.   Ill. Att'y Gen.  Req.  Rev.  Ltr. \n71031,  issued April 25, 2022;  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 67739,  issued June 29, 2021. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Metadata compilation of electronic monitoring call recordings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70612/","full_text":"August 23, 2024\n\nVia electronic mail\nMr. Matt Chapman\nmatt@mchap. io\n\nVia electronic mail\nMr. Rob Olmstead\nDeputy General Counsel for Public Policy and Information\nCook County Sheriff's Office\n[street address redacted for site publication -- see original PDF]\nrobert. olmstead@ccsheriff. org\n\nRE: FOIA Request for Review – 2022 PAC 70612 (2021- PAC- C-0191) \n\nFOIA R019181- 073021\n\nDear Mr. Chapman and Mr. Olmstead: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1\n\nOn July 30, 2021, Mr. Matt Chapman submitted a FOIA request to the Cook\n\nCounty Sheriff's Office (Sheriff's Office) seeking certain data for calls made concerning\nindividuals under electronic monitoring (EM). Specifically, he sought: \n\nThe following information for all audio for all calls made or\nreceived by Protocol relating to any person on EM under CCSO[:] \n1. Person being called\n\n4. Date and time of audio start. \n5. Date and time of audio end. \n6. Size of audio file. \n7. Booking ID\nPlease limit the timeframe of this request from Jan. 1, 2020 to [ July\n30, 2021].[ 2] \n\nOn August 6, 2021, the Sheriff's Office informed Mr. Chapman that it had previously produced\ncall data to him in response to FOIA request number R016665- 052521. Later the same day, Mr. \nChapman responded to the Sheriff's Office, stating that the response to R016665- 052521 did not\nsatisfy his current request. He clarified that his request sought information about the call\nrecordings and noted \"[ t]o the extent that Protocol BI has the ability to look up recordings by\nperson, then the functionality, by necessity, exists to complete this request, though likely through\na database query.\" 3 On August 10, 2021, the Sheriff's Office informed Mr. Chapman that\nProtocol's case management system cannot query audio files in conjunction with the fields\nrequested\" 4 and stated that it could not generate a report responsive to his request. Mr. Chapman\nthen asked the Sheriff's Office if it could contact the database vendor to arrange for it to run a\nquery for the responsive information. On August 11, 2021, the Sheriff's Office responded: \n\nThe fields you are requesting are not extractable from the case\nmanagement system as a collective. Your request would require\ndedicated development work by County vendors to create a\ncustomized query and functionality that serves no purpose except\nto address your FOIA. FOIA does not require the creation of a\nnew record in response to a FOIA request that is not kept in the\nnormal course of business.[ 5] \n\nLater the same day, Mr. Chapman submitted this Request for Review challenging the Sheriff's\nOffice's denial. He contended that running a query in the database would not be the creation of a\nnew record. \n\nOn August 26, 2021, this office sent a copy of the Request for Review to the\nSheriff's Office and requested a detailed written explanation in response to Mr. Chapman's\n\n2FOIA Request submitted by Matt Chapman. \n\nOfficer/ Legal Department] (August 6, 2021). \n\nallegations. On September 16, 2021, the Sheriff's Office responded. On September 17, 2021, \nthis office forwarded the Sheriff's Office's response to Mr. Chapman; he replied on September\n22, 2021. On February 7, 2022, Mr. Chapman submitted additional\nlight of the information in Mr. Chapman's February 7, 2022, correspondence, on May 5, 2022, \nthis office sent another letter of inquiry to the Sheriff's Office. It responded on May 31, 2022. \nOn June 3, 2022, this office forwarded that response to Mr. Chapman; he submitted a reply on\nJune 9, 2022. \n\ninformation to this office. In\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). The requirements of FOIA apply to\npublic records,\" which are records \" having been prepared by or for, or having been or being\nused by, received by, in the possession of, or under the control of any public body.\" 5 ILCS\n140/ 2(c) (West 2020). \" In this expansive definition of 'public records,' the legislature recognizes\nthat information or documentation may be stored in myriad media, some physical and some not. \nIllinois case law has long held that electronic records may be public records subject to FOIA.\" \nHites v. Waubonsee Community College, 2016 IL App (2d) 150836, ¶ 57. A public body must\nperform a reasonable search for responsive records under the circumstances of each request. \nBetter Government Ass'n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31. However, \"[ a] \nrequester is entitled only to records that an agency has in fact chosen to create and retain.\" \nYeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982). \n\nIn Hites, the Illinois Appellate Court analyzed a series of requests for information\ncontained in multiple databases. The Hites court distinguished requests for raw data maintained\nin a public body's databases from requests seeking information about the data, which would\nrequire the creation of new records. The court analogized a database to a file cabinet and stated\nthat \" the data that populates the database is like the files. FOIA permits a proper request for a\nsingle file, some of the files, or all of the files.\" Hites, 2016 IL App (2d) 150836, ¶ 71. The\ncourt held that compiling raw data already maintained in databases and available through\ncomputerized searches of the public body's databases did not involve the creation of new records, \neven if the public body had to create and apply computer programming or coding to retrieve the\ninformation. Hites, 2016 IL App (2d) 150836, ¶¶ 75-81. \n\nWhile raw data that were previously compiled and available through\n\ncomputerized searches of a database are subject to disclosure, \" FOIA was not designed to\ncompel the compilation of data not ordinarily kept by the public body.\" Hites, 2016 IL App (2d) \n150836, ¶¶ 75-80 (public body not obligated under FOIA to provide a listing of search results or\nto create records reflecting totals that had not been previously compiled from its data); see also\n\n130427, ¶ 37 (State agency not required to respond to a request seeking the number of claims\nagainst certain doctors by calculating the number and creating a new record). Additionally, \nFOIA does not require a public body to manually compile information from multiple sources and\ncreate a custom report for a requester. See Martinez v. Cook Cty. State's Attorney's Office, 2018\nIL App 1st 163153, ¶ 25 (request that would have required public body to manually review its\nfiles and compile each \" instance\" in which it \"used\" specific information did not reasonably\ndescribe a record but instead was a general request for data that was \" scattered throughout [ the\npublic body's] records\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 61967, issued November 18, \n2020, at 4-5 (concluding that where school district did not maintain responsive demographic and\ntesting data in one database, but rather across multiple sources and departments, \" FOIA does not\nrequire a public body to collect, cross reference, match, and collate various data scattered\nthrough its departments and multiple databases.\"). \n\nArguments\n\nIn its September 17, 2021, answer to this office, the Sheriff's Office explained that\nCook County contracted with Track Group, Inc. to provide equipment and technology for its EM\nprograms \" and Track Group has in turn subcontracted with B.I. Incorporated (d/b/a Protocol) to\nprovide call center monitoring and case management services. B.I. Incorporated uses a case\nmanagement system called Protocol to track alerts generated by EM devices and how those alerts\nare resolved.\" 6 The Sheriff's Office explained that B.I. maintains records of outbound calls using\na telephone switch, but that data is maintained separately from the Protocol database, \" meaning\nthere is no formal data integration between the telephone switch and the case management\nsystem.\" 7 Neither Protocol nor the telephone switch database contains all of the information Mr. \nChapman requested: \n\nAudio files are maintained separately by B.I. Incorporated and are\ncategorized and retrievable based on the outbound call number. \nThey are not maintained or categorized by participant name or ID. \nThe data imprint of an audio file cannot be extracted in\nconjunction with other data fields related to a participant, nor is the\naudio file stored in such a way that it captures any of the other\nfields Mr. Chapman requested.[ 8] \n\nHarter, Deputy Bureau Chief, Public Access Counselor, Illinois Attorney General (September 16, 2021), at 1. \n\n6 Letter from Elizabeth Scannell, Deputy General Counsel, Cook County Sheriff's Office, to Laura\n\n7 Henry Conforti Aff. ¶6 (June 1, 2021). \n\nHarter, Deputy Bureau Chief, Public Access Counselor, Illinois Attorney General (September 16, 2021), at 2. \n\n8 Letter from Elizabeth Scannell, Deputy General Counsel, Cook County Sheriff's Office, to Laura\n\nThe Sheriff's Office explained that while outbound call data may be exported from the telephone\nswitch database, it would include all B.I. customers, not just Sheriff's Office data. There are no\nidentifiers, such as booking ID numbers, within the telephone switch database by which the\nrecords could be sorted by Sheriff's Office data. \n\nIn his September 22, 2021, reply, Mr. Chapman suggested that the Sheriff's Office\n\nprovide B.I. with a list of EM participants' phone numbers and booking ID numbers. Mr. \nChapman argued that the Sheriff's Office or its contractors could then filter the telephone switch\ncall log records by calls made only to devices that are worn by the Sheriff's Office's EM\nparticipants and then provide him with information sufficient to satisfy his request. He also\nnoted that he is aware \" that agents at the call center track their calls through notes and I'm aware\nthat the notes themselves cannot be compiled in a way to satisfy the requirements of my request\nwithout undue burden.\" 9\n\nIn response to Mr. Chapman's suggestion, the Sheriff's Office explained that \"[ t]o\nfulfill Mr. Chapman's FOIA request, all phone numbers provided for each EM participant would\nneed to be pulled from the case management system and merged with the call data system to find\nmatches.\" 10 The Sheriff's Office explained that: \n\na query [ in the telephone switch database] for an individual record\ncan take 2 to 30 minutes. We estimate that around 10,000 people\nspent at least one day on EM during the timeframe Mr. Chapman\nseeks (18 months). Among those 10,000 participants, multiple\nphone numbers may be associated with the participant (between\nthe site host and other contacts for the participant). The amount of\ntime and effort required to pull those records would put\nextraordinary strain on Protocol's monitoring capabilities.[ 11] \n\n9 Letter from Matt Chapman to Illinois Attorney General's PAC Office (September 21, 2021), at\n\n1]. \n\n10 Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff's Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General (May 26, 2022), at [ 2]. \n\n11 Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff's Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\n\nThe Sheriff's Office stated that \"[ e] ach phone number would have to be queried separately (with\nan estimate of 2-30 minutes for each query depending on the amount of information\navailable).\" 12\n\nMr. Chapman disputed that it would take the Sherriff's Office a significant\n\namount of time to run the necessary query, arguing that it should be able to run a query for all\nphone numbers at once, particularly if the database is relational and the Sheriff's Office can\ntherefore run a search using structured query language (SQL). \n\nOn February 7, 2022, Mr. Chapman provided this office with a copy of\n\ninformation he had obtained from an attorney who represents an individual who is a participant\nin the Sheriff's Office's EM program. 13 Specifically, Mr. Chapman submitted a screenshot of\ninformation he believed was automatically generated by Track Group from a database containing\nEM call information. The screenshot reflected the start time of a call, the duration of the call, the\nphone number called, a user name, and a reference number, among other things, for a specific\nSheriff's Office EM participant. Mr. Chapman asserted that this screenshot supports his\ncontention that the Sheriff's Office's contractors can run a database query to extract some or all\nof the information responsive to his request. \n\nIn response to the information submitted by Mr. Chapman, the Sheriff's Office\n\nstated that, without knowing more about the origin of the record, it could only assume that it was\npulled using an individual's phone number. The Sheriff's Office contended that \" Protocol and\nthe CCSO have never disputed Protocol's capability to do this. However, Mr. Chapman's FOIA\nrequest does not seek call information based on an individual participant or phone number. \nInstead, it seeks all call data information for all CCSO EM participants between January 1, 2020\nand] July 30, 2021.\" 14\n\nAnalysis\n\nMr. Chapman has conceded that to the extent information he sought is stored in\nProtocol's \" Notes\" field, it is unduly burdensome to compile that information in the manner he\nrequested. Therefore, the data categories at issue are booking ID number from the Protocol\ndatabase and any available outbound call data from the telephone switch database. It is\nundisputed that the Sheriff's Office possesses data on outbound calls to EM participants and that, \n\n12E- mail from [ Sarah Smith] to Laura [ Harter] (June 1, 2022). \n\npursuant to a subpoena issued to Track Group. \n\n13 Mr. Chapman informed this office that the attorney obtained the data shown in the screenshot\n\n14 Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff's Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\n\naside from the telephone numbers themselves, the data are public records subject to disclosure. 15\nIt is also undisputed that the responsive information is stored in two separate databases. The\nSheriff's Office first argued that compiling the information Mr. Chapman requested \" would\nrequire dedicated development work by County vendors to build new features in the Protocol\nsystem to connect separately stored files to alert data.\" 16 The Sheriff's Office then shifted its\nargument to assert that \" all phone numbers provided for each EM participant would need to be\npulled from [ Protocol] and merged with the [ telephone switch database] to find matches. This\nmerging could require the creation of a record through a new query written by the third-party\nsoftware vendor.\" 17 The Sheriff's Office thereby acknowledged that extracting the responsive\ncall data could be accomplished by running a query of the telephone switch database using EM\nparticipants' phone numbers to identify responsive call data. Rather than creating new records, \nquerying databases to extract existing data is \"[ a] n electronic search that * * * meets the\ndefinition of 'copying' under FOIA.\" Hites, 2016 IL App (2d) 150836, ¶ 73. \n\nThere is no query that could be run in either database, however, that would\n\ngenerate a result that contains both booking IDs and the requested call data. Once the responsive\noutbound call data is extracted from the telephone switch database, it must be compiled and\ncorrelated with the correct booking ID information. The Sheriff's Office did not address what\nmeasures would be required to accomplish this compilation. Mr. Chapman suggested the use of\nautomated tables in a spreadsheet to sort and link the booking IDs with EM users' phone\nnumbers and the related call data: \n\nThe spreadsheet works as follows: Phone numbers, device\n\nIDs, and CCSO booking IDs are entered into the \" Device Phone\nNumbers\" worksheet. The switch's phone records can then be\ninserted into the [* * *] \" Data\" sheet. In the \" Data\" worksheet, the\nIs CCSO\" will then reflect a 1 (or TRUE) if that phone number's\nwithin the list of phone numbers in the \" Device Phone Numbers\" \nworksheet. Clicking on the dropdown at \" Is CCSO\" and selecting\n1\" (or TRUE) will then filter the relevant information.[ 18] \n\n15 Section 7(1)(b) of FOIA exempts from disclosure \" private information\" and section 2(c-5) of\n\nFOIA defines \" private information\" to include, among other things, personal\nWest 2021 Supp.); 5 ILCS 140/ 2(c-5) (West 2020). \n\ntelephone numbers. 5 ILCS 140/ 7(1)(b) \n\nHarter, Deputy Bureau Chief, Public Access Counselor, Illinois Attorney General (September 16, 2021), a t [3]. \n\n16 Letter from Elizabeth Scannell, Deputy General Counsel, Cook County Sheriff's Office, to Laura\n\n17 Letter from Sarah M. Smith, Assistant General Counsel, FOIA Officer Law Department, \n\nSheriff's Office of Cook County, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the\nAttorney General (May 26, 2022), at [ 2]. \n\n18 Letter from Matt Chapman to Illinois Attorney General's PAC Office (September 21, 2021), at\n\nEven if Mr. Chapman's suggestion is feasible, it is clear that compiling the\n\nrequested information would require more than merely running a query and extracting data from\na database; the available information indicates that the Sheriff's Office would have to link and\nmanipulate extracted data from two separate databases into a unique arrangement. This office\nhas previously concluded that combining two reports to create a unique digital record constitutes\nthe creation of a new record. Ill. Att'y Gen. PAC Req. Rev. Ltr. 73026, issued October 19, 2022, \nat 3. FOIA does not require public bodies to manipulate data found in separate locations into\ncustom reports for requesters. See Everytown for Gun Safety Support Fund v. BATFE, 403 F. \nSupp. 3d 343, 359 (S.D.N.Y. 2019), rev'd and remanded on other grounds, 984 F.3d 30 (2d Cir. \n2020) (\" whether information in a database constitutes an agency record hinges not on whether\nthe information is housed in the form requested, but whether generating the information requires\nthe agency to engage in additional research or conduct additional analyses above and beyond the\ncontents of its database.\"). \n\nIn an e-mail to this office, Mr. Chapman cited ACLU Immigrants' Rights Project\nv. United States Immigration & Customs Enforcement, 58 F.4th 643, 656 (2d Cir. 2023), for the\nproposition that a government agency cannot make an exempt record, such as personal phone\nnumbers, \"' the sole 'key' or 'code' necessary to access non-exempt records in a particular manner; \nitself use the exempt record to obtain non-exempt records in that manner; and then invoke the\nrecord's exempt status to deny the public similar access to the non- exempt records.'\" 19 In that\ncase, the ACLU had requested data from United States Immigration & Customs Enforcement\nICE) for five categories of information pertaining to stages of the deportation process. The\nFOIA request specified that there should be a row in the spreadsheet for each individual alien\nand that the agency should substitute exempt \" A-Numbers\" for unique identification numbers for\neach individual \" because such a substitution is necessary to allow ACLU to track individual\" \naliens across the five different categories of data. ACLU Immigrants' Rights Project, 58 F.4th\n643 at 648. The United States District Court for the Southern District of New York found that\nFOIA did not require the agency to substitute unique IDs for the A-Numbers because to do so\nwould be the creation of a new record. ACLU Immigrants' Rights Project v. United States\nImmigration & Customs Enforcement, 19 Civ. 7058, 2021 U.S. Dist. LEXIS 45109, 2021 WL\n918235 (S.D.N.Y. Mar. 10, 2021). The Second Circuit reversed, concluding that \" to hold\notherwise could have the perverse effect of encouraging agencies to make exempt records the\nsingular means for gaining access to non-exempt records responsive to a particular query and, \nthereby, effectively to conceal those records from the public, at least in the way responsive to the\nquery.\" ACLU Immigrants' Rights Project, 58 F.4th 643 at 656. \n\nThe facts here are distinguishable from ACLU Immigrants' Rights Project in two\n\nnotable respects. First, unlike the ACLU, Mr. Chapman's FOIA request did not request\n\nImmigrants' Rights Project v. United States Immigration & Customs Enforcement, 58 F.4th 643 (2d Cir. 2023). \n\n19E- mail from Matt [ Chapman] to Laura [ Harter] (January 27, 2023), quoting summary of ACLU\n\ntelephone switch data in which unique identifiers were substituted for personal phone numbers. 20\nSecond, the facts in ACLU Immigrants' Rights Project did not involve the combination of data\nfrom two separate databases; therefore, the case did not address the central\n\nissue in this matter. \n\nAccordingly, this office concludes that preparing the information Mr. Chapman\n\nrequested would require the creation of a new record, which is not required by FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n70612 C-0191 f 3d response complete co\n\n20 This office has previously concluded that substituting unique codes for exempt identifying\ninformation is the creation of a new record that is not required by Illinois FOIA. Ill. Att'y Gen. Req. Rev. Ltr. \n71031, issued April 25, 2022; Ill. Att'y Gen. PAC Req. Rev. Ltr. 67739, issued June 29, 2021."}
{"id":980,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-07-01","case_number":null,"request_numbers":["70844"],"title":"Cook County School District 130 did not violate FOIA by withholding union membership data","filename":"70844, issued July 1 2022.pdf","rel_path":null,"word_count":1268,"summary":"The Freedom Foundation requested employee information for members of SEIU Local 73 from Cook County School District 130, which the District denied. The PAC determined the District did not violate FOIA because the requested information is exempt from disclosure under the Illinois Educational Labor Relations Act (IELRA).","plain_summary":"The Freedom Foundation asked Cook County School District 130 for a list of employees covered by a collective bargaining agreement with SEIU Local 73, including their names and job details. The school district refused to provide this information, citing privacy and labor laws. The Attorney General's office agreed with the school district, ruling that state law protects this type of union-related employee information from being released through a FOIA request because disclosing which employees are covered by the agreement would necessarily reveal union membership or status.","holding":"Cook County School District 130 did not violate FOIA by denying the request for employee information because such disclosure is prohibited by section 3(d) of the IELRA.","legal_question":"Whether a school district violates FOIA by withholding employee information that would reveal union membership status, which is protected under section 3(d) of the Illinois Educational Labor Relations Act (IELRA).","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(yy)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(c)"],"public_body":"Cook County School District 130","requesting_party":"Freedom Foundation","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought personal and employment information for school district employees covered by a specific collective bargaining agreement.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_yy/70844%2C%20issued%20July%201%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["employee records","union membership","IELRA","personnel information"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 1, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Leslie Quade Kennedy\nPartner\nOdelson, Sterk, Murphey, Frazier &  McGrath, Ltd. \n3318 West 95th Street\nEvergreen Park, Illinois\nlkennedy@osmfm. com\n\nRE:   FOIA Request for Review –  2022 PAC 70844\n\nDear\n\nand Ms. Kennedy: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  For the reasons explained below, the\nPublic Access Bureau concludes that the response by Cook County School District 130 ( District) \nto\n\nFOIA request did not violate FOIA. \n\nOn January 18, 2022, \n\non behalf of the Freedom Foundation, \n\nsubmitted a FOIA request to the District seeking \" the following information for each Cook\nCounty School District 130 employee covered by the collective bargaining agreement with SEIU\nLocal 73:\" \n\n1)  First name\n2)  Middle name\n3)  Last name\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Leslie Quade Kennedy\nJuly 1, 2022\nPage 2\n\n4)  Age or day of birth\n5)  Job title\n6)  Hire date\n7)  Department name\n8)  Work address\n9)  Work email address.[ 1]  \n\nOn January 26, 2022,  the District denied the request,  asserting that the request did\nnot reasonably identify a public record and that even if it did, the record would be exempt under\nsections 7(1)( a)  and 7(1)( c)  of FOIA ( 5 ILCS 140/ 7(1)( a), ( 1)( c) (West 2020),  as amended by\nPublic Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021).  On March\n28,  2022, \nsection 3(d)(5) of the Illinois Educational Labor Relations Act (IELRA) (115 ILCS 5/3(d)(5) \nWest 2020)),  which the District cited in conjunction with section 7(1)( a),  does not apply\nbecause his request did not seek union membership information; instead, he claimed, it sought\ninformation concerning employees covered by the collective bargaining agreement \" regardless\nof, and not including information about the employees' membership in a labor organization.\"2\n\nsubmitted a Request for Review contesting the denial.   He argued that\n\nOn April 4, 2022, this office sent a copy of the Request for Review to the District\n\nand asked it to provide this office with a detailed written explanation of the legal and factual\nbases for its denial of the request.   On May 27, 2022,  the District provided a complete version of\nits response for this office's confidential review and a redacted version for forwarding to\n\nOn June 7, 2022, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the possession or custody of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/1.2 (West 2020).  A public body \"has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/1.2 (West 2020).   \n\nOn June 30, 2022, the Public Access Bureau issued a binding opinion against the\nFreedom Foundation in a closely similar Request for Review.   Ill. Att'y Gen.  Pub.  Acc.  Op.  No. \n22-009, issued June 30, 2022.  The one difference is that the FOIA request in that matter asked\n\nCook County School District 130 (January 18, 2022). \n\n1Letter from\n\nOutreach Associate, Freedom Foundation, to FOIA Officer, \n\nPublic Access Counselor, Office of the Attorney General (March 28, 2022), at 2. \n\n2Letter from\n\nOutreach Associate, Freedom Foundation, to Leah Bartelt, \n\n\fMs. Leslie Quade Kennedy\nJuly 1, 2022\nPage 3\n\nfor each employee's \"[ u]nion,\"3 while the request in this matter instead asked for each employee's\na] ge or day of birth.\" 4 The other eight items in the requests are the same.   Because the former\n\nrequest was submitted to a city rather than a school district, the labor law provisions at issue\nwere sections 6(c-5), 10( a)( 8),  and 10( a)( 9) of the Illinois Public Labor Relations Act ( IPLRA). 5\nSection 6(c-5) of the IPLRA is identical to section 3(d) of the IELRA.6 Just as section 7.5(zz) of\nFOIA7 exempts from disclosure \"[ i]nformation prohibited from being disclosed under the Illinois\nPublic Labor Relations Act[,]\" section 7.5(yy) of FOIA8 exempts from disclosure \"[ i]nformation\nprohibited from being disclosed under the Illinois Educational Labor Relations Act.\"   \n\nIn the binding opinion,  this office explained that the requested information was\n\nexempt from disclosure under section 7.5(zz) because: \n\nMargaret M. Paul, City Clerk ( January 17, 2022).  \n\n3Letter from Erin Volz, Policy &  Outreach Associate,  Freedom Foundation,  to City of Berwyn, \n\nCook County School District 130 (January 18, 2022).  \n\n4Letter from\n\nOutreach Associate, Freedom Foundation, to FOIA Officer, \n\nILCS 315/10(a)( 8), (a)( 9) (West 2020), as amended by Public Act 102-596, effective August 27, 2021.  \n\n55 ILCS 315/6(c-5) (West 2020), as amended by Public Act 102-038, effective June 25, 2021; 5\n\n6Section 3(d) of the IELRA provides: \n\nNo employer shall disclose the following information of any employee: \n\n1) the employee’ s home address ( including ZIP code and county); ( 2) the\nemployee’ s date of birth; (3) the employee’ s home and personal phone number; \n4) the employee’ s personal email address; ( 5) any information personally\nidentifying employee membership or membership status in a labor organization\nor other voluntary association affiliated with a labor organization or a labor\nfederation (including whether employees are members of such organization, the\nidentity of such organization, whether or not employees pay or authorize the\npayment of any dues of moneys to such organization, and the amounts of such\ndues or moneys);  and (6) emails or other communications between a labor\norganization and its members. \n\n75 ILCS 140/7.5(zz) ( West 2020), as amended by Public Acts 102-036, effective June 25, 2021; \n102-237, effective January 1, 2022;  102-292, effective January 1, 2022;  102-520, effective August 20, 2021;  102-\n559, effective August 20, 2021. \n\n85 ILCS 140/7.5(yy) (West 2020), as amended by Public Acts 102-036, effective June 25, 2021; \n102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, effective August 20, 2021; 102-\n559, effective August 20, 2021.  \n\n\fMs. Leslie Quade Kennedy\nJuly 1, 2022\nPage 4\n\nConfirming that certain specific City employees are within a\nbargaining unit represented by SEIU Local 73 would necessarily\nreveal the identity of the organization and information concerning\nemployee membership or membership status;  the Foundation\nwould be informed that only these City employees are either\nmembers of the union or eligible to be members of the union,  and\nthat a majority voted to be represented by the union.[9]   \n\nThe same reasoning applies here because the same union membership and\n\nmembership status information is exempt from disclosure under section 3(d)  of the IELRA.  \nAlthough the request at issue here did not ask for each employee's \" union,\" that change is\ninconsequential because the request already identified the union as SEIU Local 73.   Because\ncompliance with\nrepresents the bargaining unit for certain specific employees,  the District did not violate section\n7.5(yy) of FOIA by denying the request. \n\nFOIA request would unavoidably involve identifying the union that\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions, please contact me at joshua.jones@ilag.gov.        \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n70844 f 75yy proper sd\n\nEnclosure\n\n9 Ill. Att'y Gen. Pub. Acc. Op. No. 22-009, at 10.  \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Employee information covered by a collective bargaining agreement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70844/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 1, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Leslie Quade Kennedy\nPartner\nOdelson, Sterk, Murphey, Frazier & McGrath, Ltd. \n3318 West 95th Street\nEvergreen Park, Illinois\nlkennedy@osmfm. com\n\nRE: FOIA Request for Review – 2022 PAC 70844\n\nDear\n\nand Ms. Kennedy: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that the response by Cook County School District 130 (District) \nto\n\nFOIA request did not violate FOIA. \n\nOn January 18, 2022, \n\non behalf of the Freedom Foundation, \n\nsubmitted a FOIA request to the District seeking \" the following information for each Cook\nCounty School District 130 employee covered by the collective bargaining agreement with SEIU\nLocal 73:\" \n\n1) First name\n2) Middle name\n3) Last name\n\n4) Age or day of birth\n5) Job title\n6) Hire date\n7) Department name\n8) Work address\n9) Work email address.[ 1] \n\nOn January 26, 2022, the District denied the request, asserting that the request did\nnot reasonably identify a public record and that even if it did, the record would be exempt under\nsections 7(1)(a) and 7(1)(c) of FOIA (5 ILCS 140/ 7(1)(a), (1)(c) (West 2020), as amended by\nPublic Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021). On March\n28, 2022, \nsection 3(d)(5) of the Illinois Educational Labor Relations Act (IELRA) (115 ILCS 5/3(d)(5) \nWest 2020)), which the District cited in conjunction with section 7(1)(a), does not apply\nbecause his request did not seek union membership information; instead, he claimed, it sought\ninformation concerning employees covered by the collective bargaining agreement \" regardless\nof, and not including information about the employees' membership in a labor organization.\"2\n\nsubmitted a Request for Review contesting the denial. He argued that\n\nOn April 4, 2022, this office sent a copy of the Request for Review to the District\n\nand asked it to provide this office with a detailed written explanation of the legal and factual\nbases for its denial of the request. On May 27, 2022, the District provided a complete version of\nits response for this office's confidential review and a redacted version for forwarding to\n\nOn June 7, 2022, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the possession or custody of a public body are presumed to be\n\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). \n\nOn June 30, 2022, the Public Access Bureau issued a binding opinion against the\nFreedom Foundation in a closely similar Request for Review. Ill. Att'y Gen. Pub. Acc. Op. No. \n22-009, issued June 30, 2022. The one difference is that the FOIA request in that matter asked\n\nCook County School District 130 (January 18, 2022). \n\nfor each employee's \"[ u]nion,\"3 while the request in this matter instead asked for each employee's\na] ge or day of birth.\" 4 The other eight items in the requests are the same. Because the former\n\nrequest was submitted to a city rather than a school district, the labor law provisions at issue\nwere sections 6(c-5), 10(a)(8), and 10(a)(9) of the Illinois Public Labor Relations Act (IPLRA). 5\nSection 6(c-5) of the IPLRA is identical to section 3(d) of the IELRA.6 Just as section 7.5(zz) of\nFOIA7 exempts from disclosure \"[ i]nformation prohibited from being disclosed under the Illinois\nPublic Labor Relations Act[,]\" section 7.5(yy) of FOIA8 exempts from disclosure \"[ i]nformation\nprohibited from being disclosed under the Illinois Educational Labor Relations Act.\" \n\nIn the binding opinion, this office explained that the requested information was\n\nexempt from disclosure under section 7.5(zz) because: \n\nMargaret M. Paul, City Clerk (January 17, 2022). \n\n3 Letter from Erin Volz, Policy & Outreach Associate, Freedom Foundation, to City of Berwyn, \n\nCook County School District 130 (January 18, 2022). \n\n4 Letter from\n\nOutreach Associate, Freedom Foundation, to FOIA Officer, \n\nILCS 315/10(a)(8), (a)(9) (West 2020), as amended by Public Act 102-596, effective August 27, 2021. \n\n55 ILCS 315/6(c-5) (West 2020), as amended by Public Act 102-038, effective June 25, 2021; 5\n\n6 Section 3(d) of the IELRA provides: \n\nNo employer shall disclose the following information of any employee: \n\n1) the employee’ s home address (including ZIP code and county); (2) the\nemployee’ s date of birth; (3) the employee’ s home and personal phone number; \n4) the employee’ s personal email address; (5) any information personally\nidentifying employee membership or membership status in a labor organization\nor other voluntary association affiliated with a labor organization or a labor\nfederation (including whether employees are members of such organization, the\nidentity of such organization, whether or not employees pay or authorize the\npayment of any dues of moneys to such organization, and the amounts of such\ndues or moneys); and (6) emails or other communications between a labor\norganization and its members. \n\n75 ILCS 140/7.5(zz) (West 2020), as amended by Public Acts 102-036, effective June 25, 2021; \n102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, effective August 20, 2021; 102-\n559, effective August 20, 2021. \n\n85 ILCS 140/7.5(yy) (West 2020), as amended by Public Acts 102-036, effective June 25, 2021; \n102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, effective August 20, 2021; 102-\n\nConfirming that certain specific City employees are within a\nbargaining unit represented by SEIU Local 73 would necessarily\nreveal the identity of the organization and information concerning\nemployee membership or membership status; the Foundation\nwould be informed that only these City employees are either\nmembers of the union or eligible to be members of the union, and\nthat a majority voted to be represented by the union.[9] \n\nThe same reasoning applies here because the same union membership and\n\nmembership status information is exempt from disclosure under section 3(d) of the IELRA. \nAlthough the request at issue here did not ask for each employee's \" union,\" that change is\ninconsequential because the request already identified the union as SEIU Local 73. Because\ncompliance with\nrepresents the bargaining unit for certain specific employees, the District did not violate section\n7.5(yy) of FOIA by denying the request. \n\nFOIA request would unavoidably involve identifying the union that\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at joshua.jones@ilag.gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n70844 f 75yy proper sd\n\nEnclosure\n\n9 Ill. Att'y Gen. Pub. Acc. Op. No. 22-009, at 10."}
{"id":981,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-05-04","case_number":null,"request_numbers":["70898"],"title":"SURS properly withheld de-identified medical records under FOIA 7(1)(b)","filename":"70898, issued May 4, 2022.pdf","rel_path":null,"word_count":815,"summary":"The requester sought de-identified disability claim records from the State Universities Retirement System (SURS), which the PAC determined were exempt from disclosure as medical records.","plain_summary":"A requester asked for disability claim records from the State Universities Retirement System (SURS) with personal information removed. SURS denied the request, stating the documents were medical records exempt from disclosure. The Attorney General's office agreed, noting that unlike some other types of private information, the law does not allow for the release of medical records even if they are de-identified.","holding":"The PAC determined that SURS properly withheld the requested medical records because FOIA does not provide an exception for the disclosure of de-identified medical records.","legal_question":"Whether medical records are exempt from disclosure under FOIA section 7(1)(b) even if the requester seeks de-identified versions.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/7(1)(b)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)"],"public_body":"State Universities Retirement System (SURS)","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"medical records","subject_description":"The request sought disability claim evaluation records for SURS members.","ocr_status":"ok","ocr_quality":93,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-5/70898%2C%20issued%20May%204%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["medical records","de-identified records","FOIA exemption","SURS"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMay 4, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:   FOIA Request for Review –  2022 PAC 70898\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)).  For the reasons set forth below, the\nPublic Access Bureau will take no further action in this matter.  \n\nOn March 8, 2022,  you submitted a FOIA request to the State Universities\n\nRetirement System (SURS) seeking \"a list of SURS members evaluated by\n\nfrom January 2018 to present for disability claims showing only the member' s\n\n1.   On March 15, 2022, SURS\n\nrace &  the approve/deny recommendation of\ndenied your request,  asserting that it did not maintain such a list for the provider in question or\nany other healthcare provider.  SURS further explained that the only responsive records in its\npossession consisted of \" the post- examination narrative report for each member prepared and\nprovided by\nto SURS[]\",  but that \"[ e] ach such narrative report is a medical\nrecord[]\"  exempt from disclosure in their entireties pursuant to section 7(1)( b) of FOIA ( 5 ILCS\n140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). 2 On March 30, 2022,  you submitted this Request for Review\ncontesting SURS' denial.  Specifically, you stated that you are interested only in de-identified\ncopies of the records in question,  with all \" private information\"  redacted\n\n1FOIA request from\n\nto FOIA Officer, SURS (March 8, 2022). \n\nOfficer, to\n\nMarch 15, 2022). \n\n2Letter from Heather V. Kimmons, Associate General Counsel and Freedom of Information Act\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMay 4, 2022\nPage 2\n\nSection 7(1)( b) of FOIA exempts from disclosure \"[ p] rivate information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"  \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) ( West 2020))  defines \" private information\"  as: \n\nunique identifiers,  including a person' s social security number, \ndriver's license number, employee identification number, biometric\nidentifiers,  personal financial\naccess codes, medical records, home or personal telephone\nnumbers,  and personal email addresses.  Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person.  (Emphasis added.) \n\ninformation,  passwords or other\n\nThe plain language of a statute is the best indication of the legislative intent.   \n\nParis v. Feder,  179 Ill. 2d 173,  177 ( 1997).  \" We will not depart from the plain statutory\nlanguage by reading into it exceptions, limitations, or conditions that are in conflict with the\nexpress legislative intent.\"   People v. Roberts,  214 Ill. 2d 106,  116 ( 2005).   \n\nUnder the plain language of the definition of \" private information\"  in FOIA,  the\n\nrecords comprising a medical patient's healthcare history are exempt from disclosure under\nsection 7(1)(b) of FOIA, and the Public Access Bureau has consistently determined that medical\nrecords are exempt from disclosure on that basis.   See Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 23175, \nissued May 12, 2015, at 3.  FOIA does not define the term \"medical records,\"  but Black's Law\nDictionary defines the term as \"[ t]he documents that compose a medical patient' s healthcare\nhistory.\"  Black's Law Dictionary (10th Ed. 2014), available at Westlaw BLACKS.   As opposed\nto a driver' s license number,  personal e- mail address,  and certain other forms of \" private\ninformation\" that may be able to be discretely redacted from public records, each \" medical\nrecord\"  constitutes the entirety of the public record in and of itself. \n\nSection 7(1)( b) of FOIA also provides that home addresses and personal\n\nlicense\n\nplates may be subject to disclosure \"when compiled without possibility of attribution to any\nperson.\"   Although you have requested de- identified copies of the records in question,  section\n7(1)(b) of FOIA provides no exception for the disclosure of \"medical records\" without the\npossibility of attribution to any person as it does with home addresses and personal\nlicense\nplates.  Accordingly, this office has concluded that no further action is warranted in this matter. \n\n\fMay 4, 2022\nPage 3\n\nThis letter closes this file.  If you have any questions,  please contact me at\n\nChristopher.Boggs@ilag.gov.  \n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\nSupervising Attorney\nPublic Access Bureau\n\n70898 f no fi war sa\n\ncc: \n\nVia electronic mail\nMs. Heather V. Kimmons\nAssociate General Counsel and FOIA Officer\nState Universities Retirement System\n1901 Fox Drive\nChampaign, Illinois 61820\nFOIA_ Officers@surs. org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disability claim evaluation records for SURS members","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-70898/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nMay 4, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2022 PAC 70898\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau will take no further action in this matter. \n\nOn March 8, 2022, you submitted a FOIA request to the State Universities\n\nRetirement System (SURS) seeking \"a list of SURS members evaluated by\n\nfrom January 2018 to present for disability claims showing only the member's\n\n1. On March 15, 2022, SURS\n\nrace & the approve/deny recommendation of\ndenied your request, asserting that it did not maintain such a list for the provider in question or\nany other healthcare provider. SURS further explained that the only responsive records in its\npossession consisted of \" the post- examination narrative report for each member prepared and\nprovided by\nto SURS[]\", but that \"[ e] ach such narrative report is a medical\nrecord[]\" exempt from disclosure in their entireties pursuant to section 7(1)(b) of FOIA (5 ILCS\n140/7(1)(b) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-558, \neffective August 20, 2021). 2 On March 30, 2022, you submitted this Request for Review\ncontesting SURS' denial. Specifically, you stated that you are interested only in de-identified\ncopies of the records in question, with all \" private information\" redacted\n\n1FOIA request from\n\nto FOIA Officer, SURS (March 8, 2022). \n\nOfficer, to\n\nMarch 15, 2022). \n\n2 Letter from Heather V. Kimmons, Associate General Counsel and Freedom of Information Act\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) (West 2020)) defines \" private information\" as: \n\nunique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\nidentifiers, personal financial\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.) \n\ninformation, passwords or other\n\nThe plain language of a statute is the best indication of the legislative intent. \n\nParis v. Feder, 179 Ill. 2d 173, 177 (1997). \" We will not depart from the plain statutory\nlanguage by reading into it exceptions, limitations, or conditions that are in conflict with the\nexpress legislative intent.\" People v. Roberts, 214 Ill. 2d 106, 116 (2005). \n\nUnder the plain language of the definition of \" private information\" in FOIA, the\n\nrecords comprising a medical patient's healthcare history are exempt from disclosure under\nsection 7(1)(b) of FOIA, and the Public Access Bureau has consistently determined that medical\nrecords are exempt from disclosure on that basis. See Ill. Att'y Gen. PAC Req. Rev. Ltr. 23175, \nissued May 12, 2015, at 3. FOIA does not define the term \"medical records,\" but Black's Law\nDictionary defines the term as \"[ t]he documents that compose a medical patient's healthcare\nhistory.\" Black's Law Dictionary (10th Ed. 2014), available at Westlaw BLACKS. As opposed\nto a driver's license number, personal e- mail address, and certain other forms of \" private\ninformation\" that may be able to be discretely redacted from public records, each \" medical\nrecord\" constitutes the entirety of the public record in and of itself. \n\nSection 7(1)(b) of FOIA also provides that home addresses and personal\n\nlicense\n\nplates may be subject to disclosure \"when compiled without possibility of attribution to any\nperson.\" Although you have requested de- identified copies of the records in question, section\n7(1)(b) of FOIA provides no exception for the disclosure of \"medical records\" without the\npossibility of attribution to any person as it does with home addresses and personal\nlicense\nplates. Accordingly, this office has concluded that no further action is warranted in this matter. \n\nThis letter closes this file. If you have any questions, please contact me at\n\nChristopher.Boggs@ilag.gov. \n\nVery truly yours, \n\nCHRISTOPHER R. BOGGS\nSupervising Attorney\nPublic Access Bureau\n\n70898 f no fi war sa\n\ncc: \n\nVia electronic mail\nMs. Heather V. Kimmons\nAssociate General Counsel and FOIA Officer\nState Universities Retirement System\n1901 Fox Drive\nChampaign, Illinois 61820\nFOIA_ Officers@surs. org"}
{"id":982,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-10-16","case_number":null,"request_numbers":["71207"],"title":"Village of Lindenhurst Police did not violate FOIA by redacting names, birth dates in call records","filename":"71207, issued October 16, 2022.pdf","rel_path":null,"word_count":1501,"summary":"A requester challenged the Village of Lindenhurst Police Department's redaction of personal information from police call records, and the PAC determined the redactions were permissible under FOIA.","plain_summary":"A resident requested police call records for their address, but the police department redacted certain names and dates of birth from the documents provided. The resident complained to the Attorney General's office, which reviewed the records and concluded that the police department correctly protected private information from public disclosure. The case is now closed with no further action required.","holding":"The Village of Lindenhurst Police Department did not violate FOIA by redacting identifying information from police records to protect personal privacy.","legal_question":"Whether the Village of Lindenhurst Police Department properly redacted names and dates of birth from police call records pursuant to FOIA privacy exemptions.","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)"],"public_body":"Village of Lindenhurst Police Department","requesting_party":"Anonymous requester","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought records of all police calls made to their residence over a specific period.","ocr_status":"ok","ocr_quality":92.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c-5/71207%2C%20issued%20October%2016%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","privacy redaction","personal information","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nOctober 16, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Thomas Jones\n\nChief of Police\n\nVillage of Lindenhurst Police Department\n2300 East Grand Avenue\n\nLindenhurst, Illinois 60046\njones@lindenhurstpd.org\n\nRE: FOIA Request for Review — 2022 PAC 71207\n\nDear ae Mr. Jones:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by Village of Lindenhurst Police Department\n(Police Department) to A Apri 11, 2022, FOIA request did not violate the\nrequirements of FOIA.\n\nOn April 11, 2022, submitted a FOIA request to the Police Department\nseeking copies of all police calls made to his address from March 20, 2022, to the present date.\nOn April 12, 2022, the Police Department provided EE with copies of responsive records,\nbut redacted certain information pursuant to section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West\n2021 Supp.), as amended by Public Acts 102-791, effective May 13, 2022; 102-1055, effective\nJune 10, 2022). On that same date, submitted the above-referenced Request for\nReview disputing the Police Department's response.\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 + Fax (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 + TTY: (800) 964-3013 + Fax (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 » TTY: (877) 675-9339 + Fax (618) 529-6416\n\nChief Thomas Jones\nOctober 16, 2022\nPage 2\n\nOn April 18, 2022, this office sent a copy of the Request for Review to the Police\nDepartment and asked it to provide unredacted copies of the contested records for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of section 7(1)(b) of FOIA. The Police Department did not respond to this office.\nOn August 3, 2022, this office again forwarded a copy of the Request for Review and inquiry\nletter to the Police Department and requested a response. On August 4, 2022, the Police\nDepartment provided this office with the requested materials, and explained that it did not\nreceive the Request for Review the first time this office sent a copy. On August 8, 2022, this\noffice forwarded a copy of the Police Department's response letter to aa: he did not submit\na written reply.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisanv.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information\" as:\n\n[U]nique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information, passwords or\nother access codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person (Emphasis added).\n\nIn its response to this office, the Police Department stated it properly redacted \"name, address,\ndate of birth, telephone number, complainant's information, third party information, and police\nofficer identifiers/signatures\" pursuant to section 7(1)(b).! The information the Police\nDepartment redacted that meets the definition of \"private information\" because it uniquely\n\n‘E-mail from Cynthia Mroczek, F.O.LA. Officer, to Chief [Thomas] Jones (August 3, 2022).\n\nChief Thomas Jones\nOctober 16, 2022\nPage 3\n\nidentifies people's home or personal telephone numbers, home addresses, signatures, employee\nidentification numbers, and driver's license numbers. The Police Department did not improperly\nredact this information because it is exempt from disclosure under the section 7(1)(b) exemption.\nHowever, section 7(1)(b) does not encompass names and dates of birth. Because the rights of\ncertain third parties are at stake, this office will analyze those items below under the section\n7(1)(c) exemption.”\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Further, under section 7(1)(c), \"[t]he disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\" A public body's assertion that the release of information would constitute\nan unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192,\n196 (Ist Dist. 2001).\n\nIn balancing the public interest in disclosure of personal information with\npersonal privacy rights, courts have held that while arrestees have diminished privacy interests,\nthe right to privacy \"is strongest where the individuals in question 'have been investigated but\nnever publicly charged.'\" Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of\nJustice, 846 F. Supp. 2d 63, 71 (D.D.C. 2012) (quoting American Civil Liberties Union v. U.S.\nDep't of Justice, 655 F.3d 1, 7 (D.C. Cir. 2011)); see also Ill. Att'y Gen. Pub. Acc. Op. No. 16-\n009, issued November 7, 2016, at 16 (disclosure of information identifying suspect of a crime\nwho had not been arrested or charged would constitute a clearly unwarranted invasion of\npersonal privacy). Similarly, courts have concluded that the disclosure of the names of witnesses\nand other third parties in police reports would typically constitute an unwarranted invasion of\npersonal privacy. See, for example, Mays v. Drug Enforcement Administration, 234 F.3d 1324,\n1327 (D.C. Cir. 2000) (\"Absent exceptional circumstances, the balance [between the public\ninterest in disclosure and the right to privacy] categorically favors withholding the names and\naddresses of third parties as\" such information does not provide insight into the conduct or\nperformance of a government agency); see also Coleman v. F.B.I., 13 F. Supp. 2d 75, 80 (D.D.C.\n1998) (disclosure of FBI documents would constitute an unwarranted invasion of personal\n\n25 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13,\n2022; 102-1055, effective June 10,2022.\n\nChief Thomas Jones\nOctober 16, 2022\nPage 4\n\nprivacy because they \"reveal the identities of innocent third parties, witnesses or victims.\"); III.\nAtt'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 10-11 (names and other\nidentifying information of third parties in complaint documents exempt from disclosure).\n\nBased on its confidential review of the responsive records, this office confirms\nthat the Police Department redacted the names of people accused of crimes, but there is no\nindication those individuals were arrested or charged with crimes. The Police Department also\nredacted names of witnesses and third parties mentioned incidentally in the police reports.\nAlthough [J has a personal interest in information related to incidents at his home\naddress, the redacted names are highly personal in the context of the reports. Moreover, the\ndisclosure of the names would not illuminate how law enforcement officials performed their\npublic duties, so there is no legitimate public interest in disclosure that outweighs the parties’\nprivacy rights. In addition to the section 7(1)(c) exemption, section 7(1)(d)(iv) of FOIA? plainly\nallows police to withhold witness identities. Lastly, the Attorney General has concluded that the\ndisclosure of a person's date of birth would generally constitute a clearly unwarranted invasion of\npersonal privacy (Ill. Att'y Gen. Pub. Acc. Op. No 16-009, issued November 7, 2016, at 12), so\nthe Police Department permissibly redacted that information. Because the disclosure of the\nredacted identifying information would constitute a clearly unwarranted invasion of personal\nprivacy, the Police Department did not improperly redact that certain names and dates of birth\nunder section 7(1)(c) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at c.lucentemccullough@ilag.gov or the Chicago address on the first page of this letter if you\nhave any questions.\n\nVery truly yours\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n71207 f 71b proper 71c¢ proper pd\n\n3Section 7(1)(d)(iv) (S ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102-\n791, effective May 13,2022; 102-1055, effective June 10,2022) exempts from disclosure information that would\n\"unavoidably disclose the identity of a confidential source, confidential information furnished only by the\nconfidential source, or persons who file complaints with or provide information to administrative, investigative, law\nenforcement, or penal agencies.\"\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police call records for a residence","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71207/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nOctober 16, 2022\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Thomas Jones\n\nChief of Police\n\nVillage of Lindenhurst Police Department\n2300 East Grand Avenue\n\nLindenhurst, Illinois 60046\njones@lindenhurstpd.org\n\nRE: FOIA Request for Review — 2022 PAC 71207\n\nDear ae Mr. Jones:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by Village of Lindenhurst Police Department\n(Police Department) to A Apri 11, 2022, FOIA request did not violate the\nrequirements of FOIA.\n\nOn April 11, 2022, submitted a FOIA request to the Police Department\nseeking copies of all police calls made to his address from March 20, 2022, to the present date.\nOn April 12, 2022, the Police Department provided EE with copies of responsive records,\nbut redacted certain information pursuant to section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West\n2021 Supp.), as amended by Public Acts 102-791, effective May 13, 2022; 102-1055, effective\n\nOn April 18, 2022, this office sent a copy of the Request for Review to the Police\nDepartment and asked it to provide unredacted copies of the contested records for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of section 7(1)(b) of FOIA. The Police Department did not respond to this office.\nOn August 3, 2022, this office again forwarded a copy of the Request for Review and inquiry\nletter to the Police Department and requested a response. On August 4, 2022, the Police\nDepartment provided this office with the requested materials, and explained that it did not\nreceive the Request for Review the first time this office sent a copy. On August 8, 2022, this\noffice forwarded a copy of the Police Department's response letter to aa: he did not submit\na written reply.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisanv.\nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[p]rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"\nSection 2(c-5) of FOIA (5 ILCS 140/2(c-5) (West 2020)) defines \"private information\" as:\n\n[U]nique identifiers, including a person's social security number,\ndriver's license number, employee identification number,\nbiometric identifiers, personal financial information, passwords or\nother access codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person (Emphasis added).\n\nIn its response to this office, the Police Department stated it properly redacted \"name, address,\ndate of birth, telephone number, complainant's information, third party information, and police\n\nidentifies people's home or personal telephone numbers, home addresses, signatures, employee\nidentification numbers, and driver's license numbers. The Police Department did not improperly\nredact this information because it is exempt from disclosure under the section 7(1)(b) exemption.\nHowever, section 7(1)(b) does not encompass names and dates of birth. Because the rights of\ncertain third parties are at stake, this office will analyze those items below under the section\n7(1)(c) exemption.”\n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal\nprivacy\" as \"the disclosure of information that is highly personal or objectionable to a reasonable\nperson and in which the subject's right to privacy outweighs any legitimate public interest in\nobtaining the information.\" Further, under section 7(1)(c), \"[t]he disclosure of information that\nbears on the public duties of public employees and officials shall not be considered an invasion\nof personal privacy.\" A public body's assertion that the release of information would constitute\nan unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192,\n196 (Ist Dist. 2001).\n\nIn balancing the public interest in disclosure of personal information with\npersonal privacy rights, courts have held that while arrestees have diminished privacy interests,\nthe right to privacy \"is strongest where the individuals in question 'have been investigated but\nnever publicly charged.'\" Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of\nJustice, 846 F. Supp. 2d 63, 71 (D.D.C. 2012) (quoting American Civil Liberties Union v. U.S.\nDep't of Justice, 655 F.3d 1, 7 (D.C. Cir. 2011)); see also Ill. Att'y Gen. Pub. Acc. Op. No. 16-\n009, issued November 7, 2016, at 16 (disclosure of information identifying suspect of a crime\nwho had not been arrested or charged would constitute a clearly unwarranted invasion of\npersonal privacy). Similarly, courts have concluded that the disclosure of the names of witnesses\nand other third parties in police reports would typically constitute an unwarranted invasion of\npersonal privacy. See, for example, Mays v. Drug Enforcement Administration, 234 F.3d 1324,\n1327 (D.C. Cir. 2000) (\"Absent exceptional circumstances, the balance [between the public\ninterest in disclosure and the right to privacy] categorically favors withholding the names and\naddresses of third parties as\" such information does not provide insight into the conduct or\nperformance of a government agency); see also Coleman v. F.B.I., 13 F. Supp. 2d 75, 80 (D.D.C.\n1998) (disclosure of FBI documents would constitute an unwarranted invasion of personal\n\n25 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13,\n\nprivacy because they \"reveal the identities of innocent third parties, witnesses or victims.\"); III.\nAtt'y Gen. Pub. Acc. Op. No. 22-005, issued March 24, 2022, at 10-11 (names and other\nidentifying information of third parties in complaint documents exempt from disclosure).\n\nBased on its confidential review of the responsive records, this office confirms\nthat the Police Department redacted the names of people accused of crimes, but there is no\nindication those individuals were arrested or charged with crimes. The Police Department also\nredacted names of witnesses and third parties mentioned incidentally in the police reports.\nAlthough [J has a personal interest in information related to incidents at his home\naddress, the redacted names are highly personal in the context of the reports. Moreover, the\ndisclosure of the names would not illuminate how law enforcement officials performed their\npublic duties, so there is no legitimate public interest in disclosure that outweighs the parties’\nprivacy rights. In addition to the section 7(1)(c) exemption, section 7(1)(d)(iv) of FOIA? plainly\nallows police to withhold witness identities. Lastly, the Attorney General has concluded that the\ndisclosure of a person's date of birth would generally constitute a clearly unwarranted invasion of\npersonal privacy (Ill. Att'y Gen. Pub. Acc. Op. No 16-009, issued November 7, 2016, at 12), so\nthe Police Department permissibly redacted that information. Because the disclosure of the\nredacted identifying information would constitute a clearly unwarranted invasion of personal\nprivacy, the Police Department did not improperly redact that certain names and dates of birth\nunder section 7(1)(c) of FOIA.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. Please contact\nme at c.lucentemccullough@ilag.gov or the Chicago address on the first page of this letter if you\nhave any questions.\n\nVery truly yours\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n71207 f 71b proper 71c¢ proper pd\n\n3 Section 7(1)(d)(iv) (S ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102-\n791, effective May 13,2022; 102-1055, effective June 10,2022) exempts from disclosure information that would\n\"unavoidably disclose the identity of a confidential source, confidential information furnished only by the\nconfidential source, or persons who file complaints with or provide information to administrative, investigative, law\nenforcement, or penal agencies.\""}
{"id":983,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-17","case_number":null,"request_numbers":["71500"],"title":"City of Chicago Mayor's Office improperly redacted personal emails under 7(1)(c)","filename":"71500, issued March 17, 2023.pdf","rel_path":null,"word_count":1598,"summary":"The Chicago Tribune requested emails from Mayor Lori Lightfoot's non-city accounts, and the PAC determined that the Mayor's Office improperly redacted certain portions of a January 23, 2022, email under FOIA's personal privacy exemption.","plain_summary":"A reporter sought e-mails from the mayor's personal account concerning public business, one of which the mayor's office redacted as containing personal information about a grieving crime victim's family. The PAC determined that while some of the redacted material was purely personal and properly withheld, other portions concerned potential actions the mayor's office might take and served a public interest that outweighed the family's privacy interest. The mayor's office was directed to release a less-redacted version of the e-mail.","holding":"The City of Chicago improperly redacted portions of an email that did not meet the threshold for the personal privacy exemption.","legal_question":"Whether the City of Chicago properly applied FOIA section 7(1)(c) to redact personal information from emails sent via non-city accounts.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"City of Chicago, Office of the Mayor","requesting_party":"Mr. Gregory Pratt, Chicago Tribune","pac_outcome":"Violation found","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request sought emails concerning public business sent from non-city email accounts used by the Mayor.","ocr_status":"ok","ocr_quality":89.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/71500%2C%20issued%20March%2017%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personal email","privacy exemption","redaction","public business"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 17, 2023\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune. com\n\nVia electronic mail\nMr. Thomas Skelton\nFOIA Officer\nOffice of the Mayor\nCity of Chicago\n[street address redacted for site publication -- see original PDF]\nthomas. skelton@cityofchicago. org\n\nRE:  FOIA Request for Review –  2022 PAC 71500;  F015831- 020122\n\nDear Mr. Pratt and Mr. Skelton: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Chicago,  Office of the Mayor\nMayor' s Office)  to Mr. Gregory Pratt' s January 31, 2022,  FOIA request violated FOIA. \n\nOn that date,  Mr. Pratt,  on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to the Mayor' s Office seeking,  relevant to this Request for Review,  all e-mails\nconcerning public business from January 1, 2022,  through January 31, 2022,  residing on any\nnon-city e-mail account used by Mayor Lori Lightfoot.   After extending its time to respond,  on\nApril 27, 2022,  the Mayor' s Office provided Mr. Pratt with copies of the e- mails responsive to\nhis request,  but redacted information pursuant to sections 7(1)(b), 7(1)( c), and 7(1)(f) of FOIA. 1\nOn April 27, 2022,  Mr. Pratt submitted a Request for Review challenging the redactions made to\n\nJune 25, 2021;  102- 558,  effective August 20, 2021. \n\n15 ILCS 140/ 7(1)(b), (1)(c), (1)(f) (West 2020),  as amended by Public Acts 102- 038, effective\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Gregory Pratt\nMr. Thomas Skelton\nMarch 17, 2023\nPage 2\n\none e-mail:  a January 23, 2022,  message sent at 5:33 p.m. from Mayor Lori Lightfoot' s personal\ne-mail address to her City e-mail address. \n\nOn May 4, 2022,  this office sent a copy of the Request for Review to the Mayor' s\nOffice and asked it to provide an un-redacted copy of the e-mail identified in Mr. Pratt' s Request\nfor Review for this office' s confidential review.   This office asked that the Mayor' s Office clarify\nthe applicable exemptions cited for the information redacted from the record and provide a\ndetailed explanation of the legal and factual bases for the applicability of those exemptions.   On\nMay 23, 2022,  this office received the Mayor' s Office' s written answer and a copy of the un-\nredacted record.   Later that day, this office forwarded the Mayor' s Office' s answer to Mr. Pratt; \non May 25, 2022,  this office received Mr. Pratt's reply. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.   5 ILCS 140/ 1.2 (West 2018).   The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 ( 1997). \n\nIn its response to this office, the Mayor' s Office clarified that the e-mail at issue\ncontains notes from personal conversations about a crime victim and their family.  The Mayor' s\nOffice stated that it redacted the e-mail on the basis of the section 7(1)(c) exemption.   Section\n7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\nrecords,  the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy,  unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\"   Section 7(1)(c) defines \" unwarranted invasion of personal privacy\"  as \" the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject' s right to privacy outweighs any legitimate public interest in obtaining the\ninformation.   The disclosure of information that bears on the public duties of public employees\nand officials shall not be considered an invasion of personal privacy.\" \n\ninformation contained within public\n\nA public body's contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by-case basis.   Chicago\nJourneymen Plumbers'  Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 ( 1st Dist. 2001).   The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption,  and the burden is on the government agency\nhaving charge of the record to prove that standard has been met.   Schessler v. Department of\n\n\fMr. Gregory Pratt\nMr. Thomas Skelton\nMarch 17, 2023\nPage 3\n\nConservation,  256 Ill. App. 3d 198, 202 ( 4th Dist. 1994).   Illinois courts consider the following\nfactors in determining whether disclosure of information would constitute an unwarranted\ninvasion of personal privacy: \"( 1) the plaintiff' s interest in disclosure, ( 2) the public interest in\ndisclosure, ( 3) the degree of invasion of personal privacy,  and ( 4) the availability of alternative\nmeans of obtaining the requested information.\"   National Ass'n of Criminal Defense Lawyers v. \nChicago Police Department,  399 Ill. App. 3d 1, 13 (1st Dist. 2010). \n\nUnder the first and second factors of the balancing test, Mr. Pratt writes for The\n\nChicago Tribune.  Because Mr. Pratt is seeking the requested information to distribute to the\npublic as part of his duties as a newspaper reporter,  his interest and the public' s interest in\ndisclosure of the records are aligned.   He contends that there is a public interest in the use of\npublic resources to address a matter of public concern.   He speculated that if the record reflects\ncommunications with \" someone who's connected and reached out to the mayor * * *  and is\nasking for something --  a settlement,  a policy action,  a personnel change, * * * \nsomething where the public interest of how people are using their access to power outweighs the\nalleged privacy interests.\" 2 The Mayor' s Office argues that \" there is no real public interest in the\ndisclosure of this information.   The information does not relate to the affairs of government or\nthe official actions of public officials. * * *   These notes are about purely personal matters.\" 3\n\nthat is probably\n\nAs to the third factor\n\nthe degree of invasion of personal privacy\n\nthis office's\n\nreview of the un-redacted e-mail confirmed that the Mayor' s Office withheld a series of notes\nthat appear to summarize a discussion about a grieving family of a crime victim.  The notes\nreflect many personal details about the family that are unrelated to any actions by the Mayor' s\nOffice.   A reasonable person would find the disclosure of the personal details highly\nobjectionable given the sensitive nature of the circumstances surrounding the incident. 4 Other\ndetails are less personal,  however,  and reflect facts the Mayor' s Office collected to apprise itself\nof the situation and inform its response or potential response. \n\nRegarding the fourth factor,  there does not appear to be another means for Mr. \n\nPratt to obtain the withheld record. \n\n2E- mail from [ Gregory Pratt]  to [Laura S. Harter] ( May 24, 2022). \n\nChief, Public Access Bureau,  Office of the Attorney General ( May 22, 2022),  at [ 2]. \n\n3Letter from Tom Skelton,  FOIA Officer,  Office of the Mayor,  to Laura S. Harter,  Deputy Bureau\n\nFOIA precludes this office from further identifying the substance of the record. \n\n4Because the Mayor' s Office provided the record to this office confidentially,  section 9.5(c) of\n\n\fr. Gregory Pratt\nMr. Thomas Skelton\nMarch 17, 2023\nPage 4\n\nTaking all of these factors into account,  this office concludes that there is a public\n\ninterest in the general subject matter of the e-mail, which reflects the Mayor' s summary of facts\nabout the circumstances of certain constituents in the aftermath of a tragic incident.   The entirety\nof the e-mail does not concern a purely personal matter unrelated to government affairs and the\nMayor' s public duties.   Rather,  the notes appear to suggest some potential actions the Mayor' s\nOffice might consider or matters it would continue to monitor.   In these portions of the e-mail, \nthe public interest in disclosure outweighs the relatively minor invasion of the victim' s family.  \nHowever,  other portions of the e-mail contain highly personal details,  and the substantial\npersonal privacy interests of the crime victim' s family in those portions outweigh the minimal\npublic interest in disclosure.   Therefore,  this office requests that the Mayor' s Office disclose to\nMr. Pratt a less redacted version of the January 23, 2022,  e-mail in which it redacts only:  the\nfirst word in the first line, the fourth line before the second ellipsis and after the last ellipsis,  and\nthe 6th and 7th lines, and the 11th, 12th, and 13th lines. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (217)  843- 0564 or laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n71500 f 71c proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A reporter requested emails from the Mayor's personal accounts used for city business. The Mayor's office redacted parts of the emails, claiming they were private. The Attorney General's office reviewed the records and decided that some of those redactions were unnecessary and ordered the city to release more information.","card_headline":"Emails from non-city accounts used by the mayor","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71500/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 17, 2023\n\nVia electronic mail\nMr. Gregory Pratt\nChicago Tribune\ngpratt@chicagotribune. com\n\nVia electronic mail\nMr. Thomas Skelton\nFOIA Officer\nOffice of the Mayor\nCity of Chicago\n[street address redacted for site publication -- see original PDF]\nthomas. skelton@cityofchicago. org\n\nRE: FOIA Request for Review – 2022 PAC 71500; F015831- 020122\n\nDear Mr. Pratt and Mr. Skelton: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the City of Chicago, Office of the Mayor\nMayor's Office) to Mr. Gregory Pratt's January 31, 2022, FOIA request violated FOIA. \n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\n\nrequest to the Mayor's Office seeking, relevant to this Request for Review, all e-mails\nconcerning public business from January 1, 2022, through January 31, 2022, residing on any\nnon-city e-mail account used by Mayor Lori Lightfoot. After extending its time to respond, on\nApril 27, 2022, the Mayor's Office provided Mr. Pratt with copies of the e- mails responsive to\nhis request, but redacted information pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(f) of FOIA. 1\nOn April 27, 2022, Mr. Pratt submitted a Request for Review challenging the redactions made to\n\nJune 25, 2021; 102- 558, effective August 20, 2021. \n\n15 ILCS 140/ 7(1)(b), (1)(c), (1)(f) (West 2020), as amended by Public Acts 102- 038, effective\n\none e-mail: a January 23, 2022, message sent at 5:33 p.m. from Mayor Lori Lightfoot's personal\ne-mail address to her City e-mail address. \n\nOn May 4, 2022, this office sent a copy of the Request for Review to the Mayor's\nOffice and asked it to provide an un-redacted copy of the e-mail identified in Mr. Pratt's Request\nfor Review for this office's confidential review. This office asked that the Mayor's Office clarify\nthe applicable exemptions cited for the information redacted from the record and provide a\ndetailed explanation of the legal and factual bases for the applicability of those exemptions. On\nMay 23, 2022, this office received the Mayor's Office's written answer and a copy of the un-\nredacted record. Later that day, this office forwarded the Mayor's Office's answer to Mr. Pratt; \non May 25, 2022, this office received Mr. Pratt's reply. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2018). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nIn its response to this office, the Mayor's Office clarified that the e-mail at issue\ncontains notes from personal conversations about a crime victim and their family. The Mayor's\nOffice stated that it redacted the e-mail on the basis of the section 7(1)(c) exemption. Section\n7(1)(c) of FOIA exempts from disclosure \"[ p] ersonal\nrecords, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy, unless the disclosure is consented to in writing by the individual subjects of the\ninformation.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" as \" the\ndisclosure of information that is highly personal or objectionable to a reasonable person and in\nwhich the subject's right to privacy outweighs any legitimate public interest in obtaining the\ninformation. The disclosure of information that bears on the public duties of public employees\nand officials shall not be considered an invasion of personal privacy.\" \n\ninformation contained within public\n\nA public body's contention that the release of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by-case basis. Chicago\nJourneymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d\n192, 196 (1st Dist. 2001). The phrase \" clearly unwarranted invasion of personal privacy\" \nevinces a strict standard to claim the exemption, and the burden is on the government agency\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\n\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). Illinois courts consider the following\nfactors in determining whether disclosure of information would constitute an unwarranted\ninvasion of personal privacy: \"(1) the plaintiff's interest in disclosure, (2) the public interest in\ndisclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative\nmeans of obtaining the requested information.\" National Ass'n of Criminal Defense Lawyers v. \nChicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010). \n\nUnder the first and second factors of the balancing test, Mr. Pratt writes for The\n\nChicago Tribune. Because Mr. Pratt is seeking the requested information to distribute to the\npublic as part of his duties as a newspaper reporter, his interest and the public's interest in\ndisclosure of the records are aligned. He contends that there is a public interest in the use of\npublic resources to address a matter of public concern. He speculated that if the record reflects\ncommunications with \" someone who's connected and reached out to the mayor * * * and is\nasking for something -- a settlement, a policy action, a personnel change, * * * \nsomething where the public interest of how people are using their access to power outweighs the\nalleged privacy interests.\" 2 The Mayor's Office argues that \" there is no real public interest in the\ndisclosure of this information. The information does not relate to the affairs of government or\nthe official actions of public officials. * * * These notes are about purely personal matters.\" 3\n\nthat is probably\n\nAs to the third factor\n\nthe degree of invasion of personal privacy\n\nthis office's\n\nreview of the un-redacted e-mail confirmed that the Mayor's Office withheld a series of notes\nthat appear to summarize a discussion about a grieving family of a crime victim. The notes\nreflect many personal details about the family that are unrelated to any actions by the Mayor's\nOffice. A reasonable person would find the disclosure of the personal details highly\nobjectionable given the sensitive nature of the circumstances surrounding the incident. 4 Other\ndetails are less personal, however, and reflect facts the Mayor's Office collected to apprise itself\nof the situation and inform its response or potential response. \n\nRegarding the fourth factor, there does not appear to be another means for Mr. \n\nPratt to obtain the withheld record. \n\n2E- mail from [ Gregory Pratt] to [Laura S. Harter] (May 24, 2022). \n\nChief, Public Access Bureau, Office of the Attorney General (May 22, 2022), at [ 2]. \n\n3 Letter from Tom Skelton, FOIA Officer, Office of the Mayor, to Laura S. Harter, Deputy Bureau\n\nFOIA precludes this office from further identifying the substance of the record. \n\n4 Because the Mayor's Office provided the record to this office confidentially, section 9.5(c) of\n\nTaking all of these factors into account, this office concludes that there is a public\n\ninterest in the general subject matter of the e-mail, which reflects the Mayor's summary of facts\nabout the circumstances of certain constituents in the aftermath of a tragic incident. The entirety\nof the e-mail does not concern a purely personal matter unrelated to government affairs and the\nMayor's public duties. Rather, the notes appear to suggest some potential actions the Mayor's\nOffice might consider or matters it would continue to monitor. In these portions of the e-mail, \nthe public interest in disclosure outweighs the relatively minor invasion of the victim's family. \nHowever, other portions of the e-mail contain highly personal details, and the substantial\npersonal privacy interests of the crime victim's family in those portions outweigh the minimal\npublic interest in disclosure. Therefore, this office requests that the Mayor's Office disclose to\nMr. Pratt a less redacted version of the January 23, 2022, e-mail in which it redacts only: the\nfirst word in the first line, the fourth line before the second ellipsis and after the last ellipsis, and\nthe 6th and 7th lines, and the 11th, 12th, and 13th lines. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n71500 f 71c proper improper mun"}
{"id":984,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-05","case_number":null,"request_numbers":["71689"],"title":"City of Chicago Mayor's Office did not violate FOIA by redacting personal text messages under 7(1)(c)","filename":"71689, issued May 5, 2023.pdf","rel_path":null,"word_count":945,"summary":"The Chicago Tribune requested text messages between the Mayor and four public officials, and the PAC determined that the City's redaction of purely personal communications was appropriate because those messages did not constitute public records.","plain_summary":"A reporter requested text messages between the Mayor and other officials. The City provided the messages but redacted parts they claimed were private. The Attorney General's office reviewed the messages and agreed that the redacted portions were personal in nature and not subject to FOIA disclosure.","holding":"The City of Chicago did not violate FOIA by redacting text messages that were purely personal and did not pertain to the transaction of public business.","legal_question":"Whether text messages of a purely personal nature, which do not relate to the transaction of public business, constitute 'public records' subject to disclosure under FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/2(c)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Mayor's Office","requesting_party":"Mr. Gregory Pratt (Chicago Tribune)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought text messages exchanged between the Mayor and four public officials over a three-year period.","ocr_status":"ok","ocr_quality":91.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_c/71689%2C%20issued%20May%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["text messages","public records","personal communications","Mayor's Office"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 5, 2023\n\nVia electronic mail\n\nMr. Gregory Pratt\n\nReporter\n\nChicago Tribune\n\n[street address redacted for site publication -- see original PDF]\ngpratt@chicagotribune.com\n\nVia electronic mail\n\nMr. Tom Skelton\n\nFOIA Officer\n\nCity of Chicago Mayor's Office\n\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60602\nThomas.Skelton@cityofchicago.org\n\nRE: FOIA Request for Review — 2022 PAC 71689; City FOIA No.: F017544\nDear Mr. Pratt and Mr. Skelton:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that the City of Chicago (City) Mayor's Office (Mayor's Office)\ndid not improperly respond to Mr. Gregory Pratt's February 28, 2022, FOIA request by redacting\nthe text messages at issue in this matter.\n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\nrequest to the Mayor's Office seeking copies of all text messages exchanged between Mayor Lori\nLightfoot and four named public officials for the timeframe of May 20, 2019, through February\n28, 2022. On May 6, 2022, the Mayor's Office provided responsive text messages, but indicated\nthat it redacted some information that did not pertain to the transaction of public business\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 » Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 * (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 Fax: (618) 529-6416\n\nMr. Gregory Pratt\nMr. Tom Skelton\nMay 5S, 2023\nPage 4\n\npursuant to section 7(1)(c) of FOIA.'! On May 9, 2022, Mr. Pratt submitted a Request for\nReview disputing those redactions.\n\nOn May 13, 2022, this office sent a copy of the Request for Review to the\nMayor's Office and asked it to provide unredacted copies of the requested text messages for this\noffice's confidential review. This office also requested a detailed explanation of the factual and\nlegal bases for redacting the information from those text messages. On June 1, 2022, the\nMayor's Office furnished those materials and a written answer. Later that day, this office\nforwarded a copy of the Mayor's Office's answer to Mr. Pratt; he replied on June 3, 2022.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nSection 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. (Emphasis added.)\n\nIn City of Champaign v. Madigan, 2013 IL App (4th) 120662, 931, 992 N.E.2d\n629, 636 (2013) the Illinois Appellate Court noted that FOIA does not define the term \"public\nbusiness.\" Turning then to the dictionary's definition of \"public,\" the court stated \"to qualify as a\npublic record a communication must first pertain to business or community interests as opposed\nto private affairs. Indeed, FOIA is not concerned with an individual's private affairs.\" City of\nChampaign, 2013 IL App (4th) 120662, § 31, 992 N.E.2d at 637 (internal quotation omitted).\nTherefore, the threshold determination of whether a communication is a \"public record\" for the\npurposes of FOIA is whether that communication pertains to \"public business.\" Only if this\n\n'5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n102-558, effective August 20, 2021.\n\nMr. Gregory Pratt\nMr. Tom Skelton\nMay 5, 2023\nPage 4\n\nthreshold is met does the analysis proceed to whether the communication was \"(2) prepared by,\n(3) prepared for, (4) used by (5) received by, (6) possessed by, or (7) controlled by a public\nbody.\" City of Champaign, 2013 IL App (4th) 120662, 4 42, 992 N.E.2d at 639-40.\n\nIn its response to this office, the Mayor's Office asserted that the redacted portions\nof the disputed text messages are not public records subject to disclosure under FOIA because\nthe text messages \"relate to private affairs as opposed to governmental or community interests.\"*\n\nThis office's confidential review confirmed that the redacted information pertains\nto purely private affairs, such as condolences, personal greetings, and other private matters. The\nredacted information does not appear to relate to the officials' public duties nor to the transaction\nof City business. Because the redacted messages are not \"public records\" as defined by section\n2(c) of FOIA, this office concludes that the Mayor's Office's redactions did not violate FOIA.*\n\nThe Public Access Counselor has determined that the resolution of this matter\ndoes not require the issuance of a binding opinion. This matter is closed. If you have questions,\nmy e-mail address is Shannon.Barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n71689 f 2c proper mun\n\n*Letter from Tom Skelton, FOIA Officer, Office of the Mayor, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (June 1, 2022), at [3].\n\n*Because this determination resolves this matter, this office need not address the applicability of\nsection 7(1)(c) of FOIA to the redactions.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A mayor's text messages with public officials","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71689/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 5, 2023\n\nVia electronic mail\n\nMr. Gregory Pratt\n\nReporter\n\nChicago Tribune\n\n[street address redacted for site publication -- see original PDF]\ngpratt@chicagotribune.com\n\nVia electronic mail\n\nMr. Tom Skelton\n\nFOIA Officer\n\nCity of Chicago Mayor's Office\n\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60602\nThomas.Skelton@cityofchicago.org\n\nRE: FOIA Request for Review — 2022 PAC 71689; City FOIA No.: F017544\nDear Mr. Pratt and Mr. Skelton:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons explained below, the\nPublic Access Bureau concludes that the City of Chicago (City) Mayor's Office (Mayor's Office)\ndid not improperly respond to Mr. Gregory Pratt's February 28, 2022, FOIA request by redacting\nthe text messages at issue in this matter.\n\nOn that date, Mr. Pratt, on behalf of the Chicago Tribune, submitted a FOIA\nrequest to the Mayor's Office seeking copies of all text messages exchanged between Mayor Lori\nLightfoot and four named public officials for the timeframe of May 20, 2019, through February\n28, 2022. On May 6, 2022, the Mayor's Office provided responsive text messages, but indicated\nthat it redacted some information that did not pertain to the transaction of public business\n\npursuant to section 7(1)(c) of FOIA.'! On May 9, 2022, Mr. Pratt submitted a Request for\nReview disputing those redactions.\n\nOn May 13, 2022, this office sent a copy of the Request for Review to the\nMayor's Office and asked it to provide unredacted copies of the requested text messages for this\noffice's confidential review. This office also requested a detailed explanation of the factual and\nlegal bases for redacting the information from those text messages. On June 1, 2022, the\nMayor's Office furnished those materials and a written answer. Later that day, this office\nforwarded a copy of the Mayor's Office's answer to Mr. Pratt; he replied on June 3, 2022.\n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \"presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020).\n\nSection 2(c) of FOIA defines \"public records\" as:\n\nall records, reports, forms, writings, letters, memoranda, books,\npapers, maps, photographs, microfilms, cards, tapes, recordings,\nelectronic data processing records, electronic communications,\nrecorded information and all other documentary materials\npertaining to the transaction of public business, regardless of\nphysical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or\nunder the control of any public body. (Emphasis added.)\n\nIn City of Champaign v. Madigan, 2013 IL App (4th) 120662, 931, 992 N.E.2d\n629, 636 (2013) the Illinois Appellate Court noted that FOIA does not define the term \"public\nbusiness.\" Turning then to the dictionary's definition of \"public,\" the court stated \"to qualify as a\npublic record a communication must first pertain to business or community interests as opposed\nto private affairs. Indeed, FOIA is not concerned with an individual's private affairs.\" City of\nChampaign, 2013 IL App (4th) 120662, § 31, 992 N.E.2d at 637 (internal quotation omitted).\nTherefore, the threshold determination of whether a communication is a \"public record\" for the\npurposes of FOIA is whether that communication pertains to \"public business.\" Only if this\n\n'5 ILCS 140/7(1)(c) (West 2020), as amended by Public Acts 102-038, effective June 25, 2021;\n\nthreshold is met does the analysis proceed to whether the communication was \"(2) prepared by,\n(3) prepared for, (4) used by (5) received by, (6) possessed by, or (7) controlled by a public\nbody.\" City of Champaign, 2013 IL App (4th) 120662, 4 42, 992 N.E.2d at 639-40.\n\nIn its response to this office, the Mayor's Office asserted that the redacted portions\nof the disputed text messages are not public records subject to disclosure under FOIA because\nthe text messages \"relate to private affairs as opposed to governmental or community interests.\"*\n\nThis office's confidential review confirmed that the redacted information pertains\nto purely private affairs, such as condolences, personal greetings, and other private matters. The\nredacted information does not appear to relate to the officials' public duties nor to the transaction\nof City business. Because the redacted messages are not \"public records\" as defined by section\n2(c) of FOIA, this office concludes that the Mayor's Office's redactions did not violate FOIA.*\n\nThe Public Access Counselor has determined that the resolution of this matter\ndoes not require the issuance of a binding opinion. This matter is closed. If you have questions,\nmy e-mail address is Shannon.Barnaby@ilag. gov.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n71689 f 2c proper mun\n\n*Letter from Tom Skelton, FOIA Officer, Office of the Mayor, to Shannon Barnaby, Assistant\nAttorney General, Public Access Bureau, Office of the Attorney General (June 1, 2022), at [3].\n\n*Because this determination resolves this matter, this office need not address the applicability of\nsection 7(1)(c) of FOIA to the redactions."}
{"id":985,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-06-23","case_number":null,"request_numbers":["71823","73490","73492"],"title":"DeKalb County Housing Authority directed to release personnel file footnotes, upheld driver's license redactions","filename":"71823 73490 73492, issued June 23, 2023.pdf","rel_path":null,"word_count":6042,"summary":"The requester sought personnel files for three employees from the DeKalb County Housing Authority, which the Authority denied citing various exemptions including privacy. The PAC determined that the Authority failed to demonstrate that the employees' middle initials were exempt from disclosure under section 7(1)(c).","plain_summary":"A requester asked the DeKalb County Housing Authority for personnel files of three employees, and later submitted requests for the same records for six other employees. The Housing Authority released some records but redacted many categories, including footnotes, employment applications, retirement investment elections, social security cards, driver's licenses, and middle initials. The Illinois Attorney General's Public Access Bureau reviewed the redactions and determined that the footnotes were not private information under FOIA and directed the Housing Authority to provide unredacted copies of those footnotes. The Bureau also found that driver's license numbers, birthdates, and signatures were properly redacted, but did not explicitly rule on the remaining contested categories such as middle initials, employment applications, resumes, references, and retirement investment elections.","holding":"The determination found that footnotes in the records were not exempt under section 7(1)(b) and directed the Housing Authority to release them, while upholding redactions of driver's license numbers, birthdates, and signatures; no final ruling was made on other contested categories.","legal_question":"Whether the disclosure of public employees' middle initials constitutes a clearly unwarranted invasion of personal privacy under FOIA section 7(1)(c).","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)","7.5(q)"],"public_body":"DeKalb County Housing Authority","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought personnel files for three employees of the DeKalb County Housing Authority.","ocr_status":"ok","ocr_quality":96,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Information-that-bears-on-public-duties-of-public-officials-and-employees/71823%2073490%2073492%2C%20issued%20June%2023%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["personnel records","privacy","FOIA exemption","public employee"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 23, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. David Siegel\nFOIA Officer\nDeKalb County Housing Authority\n310 North 6th Street\nDeKalb,  Illinois 60115\nFOIA@dekcohousing.com\n\nRE:  FOIA Request for Review – 2022 PAC 71823; 2022 PAC 73490; \n\n2022 PAC 73492\n\nDear\n\nand Mr. Siegel: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  We have consolidated the above-\nreferenced Requests for Review for purposes of this determination because the requested records\nare comparable, and the applicable FOIA exemptions are identical for them. \n\nOn March 21, 2022,  \n\nsubmitted a FOIA request to the\n\nDeKalb County Housing Authority ( Housing Authority)  seeking copies of the personnel\nthree employees, excluding any performance reports.  On March 28, 2022, the Housing\nAuthority denied the request pursuant\nOn May 12, 2022, this office received\nchallenging the denial.   On May 23,  2022,  this office forwarded a copy of the Request for\n\nto sections 7(1)( a),  7(1)( b),  7(1)( c),  and 7.5(q) of FOIA. 1\nRequest for Review (2022 PAC 71823) \n\nfiles of\n\n15 ILCS 140/7(1))(a), ( 1)(b), (1)(c) (West 2020), as amended by Public Acts 102-038, effective\n\nJune 25, 2021; 102-558, effective August 20, 2021; 5 ILCS 140/7.5(q) (West 2020), as amended by Public Acts\n102-036, effective June 25, 2021; 102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, \neffective August 20, 2021; 102-559, effective August 20, 2021; 102-813, effective May 13, 2022.   \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. David Siegel\nJune 23,  2023\nPage 2\n\nReview to the Housing Authority and asked it to provide unredacted copies of the records, \ntogether with a detailed explanation of the asserted exemptions.   \n\nOn June 9, 2022, and June 17, 2022,  \n\nsubmitted additional requests\nto the Housing Authority seeking the same records for six other employees.   On July 18, 2022, \nthe Housing Authority provided responsive records but redacted certain information pursuant to\nsections 7(1)( a),  7(1)( b), and 7(1)( c)  of FOIA. 2 The Housing Authority also issued an amended\nresponse to the March 21, 2022, request, releasing responsive records but redacting them\npursuant to the same exemptions.   On September 15,  2022,  \nReview (2022 PAC 73490 and 2022 PAC 73492) challenging the partial denial of his two June\nrequests;  he also challenged the amended response to his March 21, 2022,  request.   \n\nsubmitted Requests for\n\nOn September 14, 2022,  this office requested a written response to 2022 PAC\n\n71823 that addressed the contested redactions, as well as unredacted copies of the records.  On\nSeptember 23, 2022,  this office forwarded copies of the two new Requests for Review to the\nHousing Authority and requested the same materials.  On October 24, 2022, and October 25, \n2022,  this office received the requested materials.   In its response,  the Housing Authority\nwithdrew its assertion of section 7(1)(a).   On October 27, 2022, this office forwarded a copy of\nthe Housing Authority' s responses to ; \n\nhe replied on November 7, 2023.   \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 ( West 2020);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body that redacts\nrecords \" has the burden of proving by clear and convincing evidence\"  that the information is\nexempt from disclosure.  5 ILCS 140/1.2 (West 2020).  The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 (1997).  \n\nIn his Requests for Review,  \n\ncontended that particular portions of\n\nthe records he received were improperly redacted.   The Housing Authority' s response to this\noffice stated that some of the contested redactions would be withdrawn.  Specifically, the\nHousing Authority stated it would issue an amended response withdrawing the redaction of\n\n25 ILCS 140/7(1)(a), ( 1)(b), (1)(c) (West 2021 Supp.), as amended by Public Acts 102-694, \n\neffective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, \n2022. \n\n\fMr. David Siegel\nJune 23,  2023\nPage 3\n\nFEINs, \" spot awards,\"  and business information. 3 With respect to the remaining contested\nredactions, the Housing Authority maintained that it properly redacted the following:  \n\nFootnotes in documents\nEmployment applications,  resumes,  and references\nEmployee retirement\ninvestment elections\nSocial security cards and driver' s licenses\nMiddle initials of employee names\n\nSection 7(1)( b) of FOIA\n\nSection 7(1)( b) of FOIA exempts from disclosure \"[ p] rivate information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\"  \nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) ( West 2020))  defines \" private information\"  as: \n\nU]nique identifiers, including a person's social security number, \ndriver' s license number,  employee identification number,  biometric\nidentifiers, personal financial information, passwords or other\naccess codes,  medical records,  home or personal\nnumbers, and personal email addresses.  Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person.   \n\nlicense plates,  except as\n\ntelephone\n\nThe Public Access Bureau has previously determined that business information is\n\nnot exempt from disclosure under section 7(1)(b) because it identifies businesses rather than\nindividuals.   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 48986,  issued July 1, 2020,  at 4.  Thus,  business\naddresses, business telephone numbers, and other similar information do not fall within the scope\nof the exemption.   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 22902,  issued June 27, 2016,  at 3; Ill. Att'y\nGen. PAC Req. Rev. Ltr. 23125, issued March 26, 2014, at 2.   \n\nFootnotes in Documents\n\nIn its response to this office, the Housing Authority asserted that it properly\n\nredacted footnotes contained in the records pursuant\n\nto section 7(1)( b) because they revealed \" the\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n3Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\n\fMr. David Siegel\nJune 23,  2023\nPage 4\n\nlocations of the documents referred to in each document.\" 4 The Housing Authority\ninternal\nargued that those internal locations are akin to access codes and thus within the scope of the\nexemption.   It argued:  \" If the location of the document on the HACD server is known via a\ndocument, then the possibility exists of the use of this information to attempt to access the\nHACD server.\" 5\n\ndisagreed with that claim.   He argued,  in relevant part: \n\nTo log into an internal server or cloud server,  you need to have a\nuser id and password. You cannot access a file unless you have\nbeen granted permission to access the file after being authenticated\nby logging into the system (internal server or cloud server such as\nMicrosoft OneDrive or Google Drive).  If the file is on an internal\nserver behind a firewall, like I believe the housing authority uses, \nyou need to have an user id (access code)  and password to get\nbehind the firewall into the organization’ s internal network.[6] \n\nBased on this office's review of a sampling of the unredacted records, the\nfootnotes do not contain information that would uniquely identify a person.   Rather than\nrevealing any access codes for individual employees,  the footnotes provide information about the\nrecordkeeping practices of the Housing Authority.  The records do not appear to be accessible\nunless the Housing Authority authorizes access to its internal server,  as\nnoted.  \nThe Housing Authority also redacted passwords and user identification information for\nindividual employees listed in some of the forms. 7 Although passwords and user IDs are unique\nidentifiers within the scope of section 7(1)(b), the footnotes do not constitute \" private\ninformation\"  that is exempt from disclosure under the exemption.   \n\nThis office' s review also determined that the Housing Authority redacted driver' s\nlicense numbers, signatures, and birthdates contained in some of the contested records.  Among\nthose records,  the Housing Authority redacted driver' s license numbers and birthdates in the\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n4Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n5Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\n6Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at [ 4]. \n\n7E.g., page 2 of the Capps file provided by ; \n\npage 82 of the Perkins file provided by\n\n\fMr. David Siegel\nJune 23,  2023\nPage 5\n\nletters to the AHRMA8 and signatures in the \" Employee Statement of Understanding and\nCompliance with the Drug-Free Workplace Act of 1988\" forms.9 The Housing Authority also\nredacted signatures in certain other correspondence. 10 Because those details either constitute\nprivate information\" under section 7(1)(b) or would constitute a clearly unwarranted invasion of\npersonal privacy if disclosed under section 7(1)( c),11 the Housing Authority did not improperly\nredact that information.  However, this office requests that the Housing Authority provide\n\nwith copies of the records that disclose the footnotes. \n\nAs noted above,  the Housing Authority stated it would withdraw the redaction of\nbusiness information contained in some of the records, acknowledging that the information does\nnot fall within the scope of sections 7(1)( b) or 7(1)( c).   The Housing Authority identified some\npages of the records that it would amend.  This office notes that business e-mail addresses, \nbusiness telephone numbers,  and other business contact details were redacted in other pages of\nthe records.12 Those redactions also do not fall within the scope of section 7(1)(b).  Although the\nAuthority indicated it would disclose FEINs,  it has the option of redacting them pursuant to\nsection 7(1)(kk) of FOIA.13\n\nAdditionally, the Housing Authority redacted copies of certificates of notary\n\npublic and certain details in other records.   With respect to the certificates of notary public,  the\nHousing Authority redacted,  in relevant part,  the commission beginning and ending dates, \ncommission number, and county.  The Housing Authority did not explain how those details are\n\n8E.g., page 9 of Bright file, part 1, provided by . \n\n9E.g., page 12 of Bright file, part 1, provided by . \n\nby . \n\n10E. g., pages 1, 2 of Bright file, part 3, provided by ; \n\npage 51 of Perkins file provided\n\n11The Public Access Bureau has consistently determined that personal signatures and birthdates\n\nare exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c) of FOIA respectively. Ill. Att'y Gen. Pub. Acc. \nOp. No. 14-015, issued November 25, 2014, at 11 (signatures);  Ill. Att'y Gen. Pub. Acc. Op. No. 16-009, issued\nNovember 7, 2016, at 12 (birthdates). \n\n1, provided by ); \nprovided by ). \n\n12E. g., pages 8, 10 of Bright file provided by Housing Authority (pages 10, 17 of Bright file, part\n\nPage 33 of Perkins file provided by Housing Authority (page 66 of Perkins file\n\n135 ILCS 140/7(1)(kk) (West 2021 Supp.), as amended by Public Acts 102-694, effective January\n7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022 (exempting\nfrom disclosure \"[ t]he public body's credit card numbers, debit card numbers, bank account numbers, Federal\nEmployer Identification Number, security code numbers, passwords, and similar account information, the disclosure\nof which could result in identity theft or impression or defrauding of a governmental entity or a person.\").   \n\n\fMr. David Siegel\nJune 23,  2023\nPage 6\n\nexempt from disclosure under sections 7(1)( b) or 7(1)( c).  Further,  that public notary information\nmay be found on the Illinois Secretary of State website.14 As to the other records, the Housing\nAuthority did not explain the factual or legal bases for redacting certain details15 not otherwise\ndiscussed below.  Accordingly, this office requests that the Housing Authority disclose the\ncontested parts of the notary public certificates and other contested details that are not\ndetermined to be exempt from disclosure in subsequent sections of this determination.  \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records,  the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\"   Section 7(1)( c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject' s right to privacy outweighs any legitimate public interest in obtaining\nthe information.  The disclosure of information that bears on the public duties of public\nemployees and officials shall not be considered an invasion of personal privacy.\" \n\nA public body' s assertion that the release of information would constitute a clearly\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis.   Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, \n196 ( 1st Dist.  2001).   Illinois courts consider the following factors in determining whether\ndisclosure of information would constitute an unwarranted invasion of personal privacy: \"(1) the\nplaintiff' s interest in disclosure, ( 2) the public interest in disclosure, ( 3) the degree of invasion of\npersonal privacy, and (4) the availability of alternative means of obtaining the requested\ninformation.\"   National Ass' n of Criminal Defense Lawyers v. Chicago Police Department,  399\nIll. App. 3d 1, 13 (1st Dist. 2010).  The phrase \" clearly unwarranted invasion of personal\nprivacy\"  evinces a strict standard to claim the exemption,  and the burden is on the public body\nhaving charge of the record to prove that standard has been met.  Schessler v. Department of\nConservation,  256 Ill. App.  3d 198,  202 ( 4th Dist.  1994). \n\nhttps://apps.ilsos.gov/notarysearch/ ( last visited June 23, 2023). \n\n14Office of the Illinois Secretary of State, Notary Public Search, \n\nfile provided by Housing Authority (page 5 of the Rodr file provided by ). \n\n15E. g., redacted part concerning insurance and benefits located near the bottom of page 4 of Rodr\n\n\fMr. David Siegel\nJune 23,  2023\nPage 7\n\nEmployment Applications,  Resumes,  and References\n\nThe Attorney General has previously issued a binding opinion concluding that\n\ninformation pertaining to a public employee's past employment and educational experience was\nimproperly withheld under section 7(1)( c) because the \" education,  training,  and experience that\n\npresumably were considered in determining [a public employee's]  eligibility * * * ' bear on' \nhis ability to perform his public duties satisfactorily.\"   Ill. Att'y Gen.  Pub.  Acc.  Op.  No. 14- 015, \nissued November 25, 2014, at 6; see also Core v. United States Postal Service, 730 F.2d 946, \n947- 48 ( 4th Cir. 1984) ( disclosure of successful applicants'  work history would not constitute an\nunwarranted invasion of personal privacy because it \"is simply the type of information every\napplicant seeks to bring to the attention of a prospective employer.\").   \n\nThe Housing Authority acknowledged Binding Opinion 14- 015 but asserted it\n\nproperly redacted parts of the employees' resumes and application materials because \"[ a] \nreasonable person would conclude it would be objectionable to disclose a resume or application\nan employee submitted 14 years ago.\" 16 In particular, the Housing Authority contended that the\nreferences for the employees at issue may no longer remember the individuals and have no\nbearing on the employee's current public duties.17 It also asserted that the references provide\npersonal\ninformation that is exempt from disclosure under section 7(1)( b).  The Housing\nAuthority similarly questioned the relevancy of an employee' s high school and other educational\nhistory to the individual's current public duties and contended that \"other means exist to get this\ninformation such as a yearbook.\" 18\n\nIn reply to that answer,  \n\nargued that the information was still\n\nrelevant and explained that he sought \"to verify that special considerations were not given to\nfriends,  and that employees were hired for merit and skills necessary to perform the duties of the\njob.\"19 He also noted that he could not look up some of the information in other sources without\nknowing,  for instance,  the school district that the individual had attended. \n\nBased on this office' s review,  the Housing Authority redacted portions of past\n\nemployer information, educational and community service histories, certain application\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 7. \n\n16Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 8. \n\n17Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 8. \n\n18Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\n19Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at [9]. \n\n\fMr. David Siegel\nJune 23,  2023\nPage 8\n\nreferences.   The Public Access Bureau has previously determined\n\nquestions,  and professional\nthat the identities of current and past employers and the dates on which the applicants worked for\nthose employers do not fall within the scope of section 7(1)( c) because those details bear on the\napplicants' qualifications for public employment.  Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, \nissued November 28, 2017,  at 3-4.  The Public Access Bureau has likewise determined that an\napplicant's educational history, references, and award and leadership information are not exempt\nunder section 7(1)( c),  as that information also reflects on an individual' s qualifications.   Ill. Att'y\nGen. PAC Req. Rev. Ltr. 39447, at 3-4.  See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 65940, \nissued September 2, 2021 ( employment history of successful employment applicant bears on his\nor her qualifications for the offered position, as would any details regarding special courses\ntaken,  certifications received,  and special skills or experiences that relate to the position);  Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 49902, issued May 22, 2018 (educational history and application\nquestions regarding criminal history,  legal history,  and citizenship relevant to successful\napplicant's qualifications for public duty and character and fitness for position); Ill. Att'y Gen. \nPAC Req.  Rev.  Ltr. 33143,  issued November 19, 2015 ( employment\nreferences not exempt\nunder section 7(1)(c) because there is a compelling public interest in disclosure of a public\nemployee' s credentials to enable the public to assess the employee' s qualifications for public\nduty).   \n\nEven if the individuals at issue were long- time employees,  there is a significant\n\npublic interest in the information that an applicant for public employment provided to a\nprospective public employer and that the employer considered in its hiring decision.   An\nemployee's educational history and references show, for instance, that the individual possessed\nthe basic education and credentials required for the position at the time of hire,  while responses\nto questions concerning an applicant's goals and objectives reflect on the individual's ability to\nfurther the public body' s mission.   Disclosure of this information clearly outweighs the subject' s\nlimited right to privacy in such information.  Ill. Att'y Gen. PAC Req. Rev. Ltr. 49902, issued\nMay 22, 2018,  at 7 (noting that an employee' s interest in privacy was mitigated by the passage of\nmore than five years since the submission of the application, as well as by the fact that the\nemployee voluntarily disclosed the information in an application for public employment).  \nAccordingly, the Housing Authority did not demonstrate by clear and convincing evidence that it\nproperly redacted portions of the resumes and other application materials pursuant\n7(1)(c) of FOIA.   \n\nto section\n\nThis office requests that the Housing Authority disclose the full employment and\n\neducational histories,  references,  and other above- described information that do not fall within\nthe scope of section 7(1)(c).  The Housing Authority may withhold any personal telephone\n\n\fMr. David Siegel\nJune 23,  2023\nPage 9\n\nnumbers or home addresses20 provided by the references pursuant to section 7(1)( b),  but any\nbusiness contact information does not fall within the scope of that exemption.   \n\nThe Housing Authority also redacted academic transcripts and records of courses\n\ntaken. 21 The Public Access Bureau has previously determined that,  although relevant to an\nindividual's hiring, \"academic transcripts that pre-date an individual's employment with a public\nbody and include detailed information about courses taken and grades received that have no\ndirect relationship to the employee's public duties are highly personal in nature[,]\"  and the\nindividual' s right to privacy outweighs any legitimate public interest in disclosure of this\ninformation.  Ill. Att'y Gen. PAC Req. Rev. Ltr. 37877, issued May 9, 2018, at 5.  By contrast, \nthere is a strong public interest in the disclosure of academic transcripts and records of courses\ntaken during an individual's employment and that are paid for by a public body because the\ninformation relates to the individual' s public duties and is required to be disclosed under section\n2.5 of FOIA.22 Accordingly, if the Housing Authority paid for any of the coursework reflected\nin the transcripts and records of courses taken,  those records do not fall within the scope of\nsection 7(1)(c), and this office requests that the Housing Authority disclose the information. \n\nAdditionally, the Housing Authority redacted some salary history information.  \n\nreflects payments of public funds,  the Attorney\n\nBecause salary history for public employment\nGeneral has determined that such information is expressly subject to disclosure pursuant to\nsection 2.5 of FOIA.  Ill. Att'y Gen. Pub. Acc. Op. No. 14-015, issued November 25, 2014, at 8.  \nHowever,  the salary history of an applicant' s private sector jobs does not concern the expenditure\nof public funds.  The Public Access Bureau has thus determined that \"[ g]iven its apparently\nlimited relevance to hiring decisions,  there is little public interest in obtaining information\nregarding individuals' private employment salaries, but the information is sensitive and highly\npersonal to the individual applicants.\"   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 39447,  issued\nNovember 28, 2017, at 6.  In those circumstances, the individual's privacy interest outweighs the\nminimal public interest in that information,  and the information falls within the scope of section\n7(1)(c).  Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, at 6.  Here, the Housing Authority did not\nimproperly redact the salary history disclosed in one e-mail23 because the salary history\ncorresponded with private sector jobs.  If any of the remaining records contain salary histories\n\n20E. g., page 91 of Perkins file provided by . \n\nprovided by Housing Authority). \n\n21E. g., pages 36, 40 of Perkins file provided by  (\n\npages 25, 26 of Perkins file\n\n22Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2020))  provides that \"[ a]ll records relating to the\nobligation, receipt, and use of public funds of the State, units of local government, and school districts are public\nrecords subject to inspection and copying by the public.\"  \n\n23Page 27 of Bright file, part 1, provided by . \n\n\fMr. David Siegel\nJune 23,  2023\nPage 10\n\ncorresponding with private sector jobs,  the Housing Authority may also withhold that\ninformation, but any public sector salaries are not exempt under section 7(1)(c). \n\nEmployee Retirement Investment Elections\n\nThe Public Access Bureau has previously determined that information reflecting\n\nthe personal financial decisions of an individual and an individual' s elections on employee\nbenefits, such as insurance coverage, generally fall within the scope of section 7(1)(c) because\nthey reflect the discretionary decisions and other highly personal\nemployees.  See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 54786, issued December 6, 2021 (public\nbody did not improperly withhold information concerning individual employees'  dependents and\nindividual contribution amounts to insurance plans pursuant to section 7(1)(c)); Ill. Att'y Gen. \nPAC Req.  Rev.  Ltr. 17922,  issued June 26, 2012 ( amounts contributed by employees for\nparticular benefit plans that the employees opted to participate in and information concerning\nemployee benefits deductions exempt from disclosure pursuant to section 7(1)( c)). \n\ninformation of individual\n\nThe Housing Authority stated it had redacted information concerning \" participant\n\ndirection of investment to the Trustees of the HACD Retirement Plan.\" 24 The Housing Authority\nargued that this information constituted \" personal financial\nfrom disclosure under section 7(1)( b).  It also asserted that the information fell within the scope\nof section 7(1)(c). \n\ninformation\"  and thus was exempt\n\nBased on this office's review of a sampling of the records, the Housing Authority\ninvestment and benefit plans:  ( 1) \n\nredacted generally three forms related to employee retirement\nChecklist for Retirement Program Enrollment,\" (2) \"Participant Direction of Investment,\" and\n3) \" Checklist for New Employees.\"   With respect to the first form,  the Housing Authority\ndisclosed some details (e.g., enrollment and processing dates and month of employee\ncontribution sheet)  for a number of the employees,  but not all of them. 25 It is unclear the reason\nfor this discrepancy.  Because the contested parts of this form appear to have been disclosed for\nmost of the employees,  the Housing Authority did not illustrate that the information is highly\npersonal, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy.   Accordingly,  the Housing Authority did not demonstrate by clear and convincing\nevidence that the contested redactions in the Checklist for Retirement Program Enrollment fall\nwithin the scope of section 7(1)( c).  \n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 7. \n\n24Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\n25Compare page 20 of Bright file with page 14 of Price file provided by Housing Authority\n\nCompare page 35 of Bright file, part 1, with page 18 of the Price file provided by ). \n\n\fMr. David Siegel\nJune 23,  2023\nPage 11\n\nWith respect to the remaining two forms,  this office' s review confirmed that the\n\nforms reveal the personal financial decisions and other personal details of the employees, which\nare unrelated to their public duties.   The individuals'  privacy interests in their elections on\ninvestments for retirement and insurance plans, including coverage for dependents, outweigh any\nlegitimate public interest in disclosure of this information.   Accordingly,  the Housing Authority\ndid not improperly redact in whole the Participant Direction of Investment and discrete details\nconcerning benefit elections and dependents in the Checklist for New Employees pursuant to\nsection 7(1)(c).  \n\nThis office requests that the Housing Authority disclose the contested details in\n\nthe Checklist for Retirement Program Enrollment.   \n\nSocial Security Cards and Driver' s Licenses\n\nThe Housing Authority redacted in their entirety the social security cards and\ndriver's licenses of the individuals at issue.  The Housing Authority's response to this office\nasserted that section 7(1)( b) expressly exempts from disclosure social security numbers and\ndriver's license numbers, and \"[ c]learly each document is the social security number document or\ndriver' s license of the relevant employee.\" 26\nin those records.   \n\ndisputed the redaction of the names\n\nThe Public Access Bureau has previously determined that \"[ d] isclosure of a social\n\nsecurity card, even with the social security number redacted, compromises the card holder's\nidentity for purposes of identity theft.\"   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 30407,  issued June 9, \n2015, at 4.  Because release of a social security card would constitute a clearly unwarranted\ninvasion of personal privacy,  this office has concluded that social security cards are exempt in\nwhole pursuant to section 7(1)(c).  Ill. Att'y Gen. PAC Req. Rev. Ltr. 30407, at 5.  Disclosure of\na person' s driver' s license,  even if mostly redacted,  similarly compromises the license holder' s\nidentity for purposes of identity theft.  Driver's licenses contain not only a person's license\nnumber but other highly personal\nwhich would constitute a clearly unwarranted invasion of personal privacy if disclosed.  \nAccordingly,  the Housing Authority did not improperly redact the social security cards and\ndriver's licenses pursuant to section 7(1)(c). \n\ninformation,  such as a person' s home address and birthdate, \n\n26Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at 7. \n\n\fMr. David Siegel\nJune 23,  2023\nPage 12\n\nMiddle Initials of Employee Names\n\nThe Housing Authority stated that it redacted the middle initials of the individuals\n\nat issue because of concerns of privacy and identity theft.  In particular, the Housing Authority\nasserted that disclosure of the middle initials \" significantly increases the chance\"  that someone' s\nidentity could be stolen.27 It contended that the middle initials are exempt from disclosure under\nthe balancing test of section 7(1)( c): \n\nThe middle initial of each employee is highly personal as it\nidentifies that specific person. Identification of that specific person\nis information that is relevant when considering the issue of\nidentity theft and what information is needed to commit identity\ntheft.  A reasonable person would find the disclosure of the middle\ninitial of that person's name in this age of identity theft would\noutweigh the public interest in obtaining this information.[ 28] \n\nAdditionally,  the Housing Authority contended that middle initials constitute a\n\nunique identifier\" exempt from disclosure under section 7(1)(b):  \"With the advent of 1.4\nmillion cases of identity theft in 2021,  privacy expectations today are clearly different\nLieber was decided.  An individual' s middle initial is clearly a unique identifier of the\nindividual.\"29 In support of that claim, the Housing Authority cited Timpone v. Illinois Student\nAssistance Comm' n, 2019 IL App ( 1st)  181115,  147 N.E.3d 873 ( 2019),  among other cases.   The\nHousing Authority argued that \"Timpone held even though names were not expressly identified\nin Section 2 ( c-5), the examples cited in this section are not inclusive.\" 30 It contended that names\nmay constitute private information depending on the circumstances and that \"the request must be\nconsidered in context in determining whether the personal\ninformation requested is nonexempt\nbasic identification subject to disclosure or information of a confidential or private nature[.]\" 31\n\nthan when\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n27Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 6. \n\n28Letter from Timothy F. Horning, Meyer &  Horning,  to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n29Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n30Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n31Letter from Timothy F. Horning, Meyer &  Horning, to Attorney Teresa Lim, Assistant Attorney\n\n\fMr. David Siegel\nJune 23,  2023\nPage 13\n\nIn reply to that answer,  \n\nmaintained that names are not exempt\n\nunder section 7(1)( b),  and that a person' s middle initial is a part of the person' s name.   He also\nargued that a person's full name \" is used for the duties of the public employment, and it cannot\nbe redacted under section 7(1)( c).\" 32\n\nHaving reviewed the Housing Authority' s response and cited case law,  the\n\nHousing Authority did not demonstrate that the middle initial of a person's name constitutes a\nunique identifier\"  within the scope of section 7(1)( b).   The Attorney General has previously\nissued a binding opinion concluding that the names of students enrolled at a university did not\nconstitute \" private information\"  under the 7(1)( b) exemption.   In reaching that conclusion,  this\noffice observed:  \" Section 7(1)(b) exempts only private information, and nothing in that\ndefinition or in reading FOIA as a whole suggests that a person' s name,  or basic identification,  is\nprivate information.\"  Ill. Att'y Gen. Pub. Acc. Op. No. 12-003, issued January 18, 2012, at 7.   \n\nIn Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (1st) 181115, \n\n41,  147 N.E.3d 873,  887 ( 2019),  the Illinois Appellate Court concluded that names may be\n\nwithheld under section 7(1)(b) if their disclosure would reveal an individual's personal financial\ninformation.   In that case,  the Illinois Student Assistance Commission ( ISAC)  denied a FOIA\nrequest seeking,  in relevant part,  the names of all students who received a Monetary Award\nProgram (MAP) grant in 2015, asserting that the information constituted private information.  \nTimpone,  2019 IL App ( 1st)  181115, ¶ 7, 147 N.E.3d at 878.   The court determined that the ruling\nin Lieber v. Board of Trustees of Southern Illinois University, 176 Il1. 2d 401, 414, 680 N.E.2d\n374,  380 ( 1997),  which also considered the disclosure of names,  was not dispositive because that\ncase involved different statutory language and circumstances.  Timpone, 2019 IL App (1st) \n181115, ¶ 35, 147 N.E.3d at 885.   The court instead found the exemption for \" personal financial\ninformation\" under section 2(c-5) to be most relevant.  Timpone, 2019 IL App (1st) 181115, ¶26, \n147 N.E.3d at 884.   Because ISAC posted \" detailed personal\napplicants and recipients\" on its website, the court determined that \"the further disclosure of the\nnames of MAP grant recipients would invade the privacy of those individuals.\"   Timpone,  2019\nIL App (1st) 181115, ¶41, 147 N.E.3d at 887.  Accordingly, the court concluded that the names\nof the 2015 MAP recipients were exempt from disclosure under section 7(1)( b).   Timpone,  2019\nIL App (1st) 181115, ¶41, 147 N.E.3d at 887.   \n\nincome information of MAP\n\nThe circumstances in this matter are distinguishable from the situation in\n\nTimpone.   Here,  the contested records do not contain personal financial\nexception of certain limited documents discussed above.  A person's resume and employment\nfinances\napplication,  for instance,  do not reveal specific details about the individual' s personal\n\ninformation with the\n\n32Letter from\n\nto AAG Teresa Lim, PAC (November 7, 2022), at [8]. \n\n\fMr. David Siegel\nJune 23,  2023\nPage 14\n\nand are not otherwise replete with other unique identifiers,  such as those enumerated in section\n2(c-5).  The contested records instead mostly contain information that bear on the individual's\nqualifications and ability to perform the public duties assigned to a position.   In contrast to\npersonal financial information, information pertaining to the performance of a public employee's\npublic duties are generally subject to disclosure under FOIA.   See Ill. Att'y Gen.  Pub.  Acc.  Op. \nNo. 14-015, issued November 25, 2014.  The Housing Authority did not demonstrate that the\nmiddle initials in this context would reveal unique identifiers as defined in FOIA.   Compare to\nTimpone, 2019 IL App (1st) 181115, ¶41, 147 N.E.3d at 887 (names of recipients of financial aid\nexempt under section 7(1)( b) because disclosure would reveal personal financial\nabout their incomes and family members' incomes posted on ISAC's website).  Accordingly, the\nHousing Authority did not sustain its burden of showing by clear and convincing evidence that a\nperson's middle initial constitutes \"private information\" within the scope of section 7(1)(b).  \n\ninformation\n\nThe Housing Authority also did not illustrate that a person's middle initial reveals\ninformation,  the disclosure of which would cause a clearly unwarranted invasion\n\nhighly personal\nof personal privacy. The middle initials of elected officials' and public employees' names are\noften disclosed in documents and materials that are shared with the public.   The Illinois General\nAssembly posts, for instance, the full names of all its members on its website, including the\nmembers'  middle initials. 33 Although a middle initial reduces the number of people who share\nthe same name,  the Housing Authority' s assertion that disclosure of a middle initial would\nsignificantly increase the risk of identity theft is speculative.  Further, withholding a portion of a\nperson' s name would lead to absurd results,  such as the public having no right to learn the full\nnames of government employees or elected officials.  See Lieber, 176 Ill.2d at 412, 680 N.E.2d\nat 379.  There is a legitimate public interest in knowing the complete and accurate names of\npublic employees and officials that outweighs the subjects' right to privacy in their middle\ninitials.   Under these circumstances,  the Housing Authority did not demonstrate by clear and\nconvincing evidence that the middle initials are exempt from disclosure pursuant to section\n7(1)( c).   This office requests that the Housing Authority disclose the middle initials of the\nindividuals in the records.    \n\n33Illinois General Assembly, Current House Members, 103rd General Assembly, \nhttps://www.ilga.gov/house/ ( last visited June 23, 2023); Illinois General Assembly, Current Senate Members, 103rd\nGeneral Assembly, https://www.ilga.gov/senate/ ( last visited June 23, 2023). \n\n\f\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Personnel files of three housing authority employees","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71823/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 23, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. David Siegel\nFOIA Officer\nDeKalb County Housing Authority\n310 North 6th Street\nDeKalb, Illinois 60115\nFOIA@dekcohousing.com\n\nRE: FOIA Request for Review – 2022 PAC 71823; 2022 PAC 73490; \n\n2022 PAC 73492\n\nDear\n\nand Mr. Siegel: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). We have consolidated the above-\nreferenced Requests for Review for purposes of this determination because the requested records\nare comparable, and the applicable FOIA exemptions are identical for them. \n\nOn March 21, 2022, \n\nsubmitted a FOIA request to the\n\nDeKalb County Housing Authority (Housing Authority) seeking copies of the personnel\nthree employees, excluding any performance reports. On March 28, 2022, the Housing\nAuthority denied the request pursuant\nOn May 12, 2022, this office received\nchallenging the denial. On May 23, 2022, this office forwarded a copy of the Request for\n\nto sections 7(1)(a), 7(1)(b), 7(1)(c), and 7.5(q) of FOIA. 1\nRequest for Review (2022 PAC 71823) \n\nfiles of\n\n15 ILCS 140/7(1))(a), (1)(b), (1)(c) (West 2020), as amended by Public Acts 102-038, effective\n\nJune 25, 2021; 102-558, effective August 20, 2021; 5 ILCS 140/7.5(q) (West 2020), as amended by Public Acts\n102-036, effective June 25, 2021; 102-237, effective January 1, 2022; 102-292, effective January 1, 2022; 102-520, \neffective August 20, 2021; 102-559, effective August 20, 2021; 102-813, effective May 13, 2022. \n\nReview to the Housing Authority and asked it to provide unredacted copies of the records, \ntogether with a detailed explanation of the asserted exemptions. \n\nOn June 9, 2022, and June 17, 2022, \n\nsubmitted additional requests\nto the Housing Authority seeking the same records for six other employees. On July 18, 2022, \nthe Housing Authority provided responsive records but redacted certain information pursuant to\nsections 7(1)(a), 7(1)(b), and 7(1)(c) of FOIA. 2 The Housing Authority also issued an amended\nresponse to the March 21, 2022, request, releasing responsive records but redacting them\npursuant to the same exemptions. On September 15, 2022, \nReview (2022 PAC 73490 and 2022 PAC 73492) challenging the partial denial of his two June\nrequests; he also challenged the amended response to his March 21, 2022, request. \n\nsubmitted Requests for\n\nOn September 14, 2022, this office requested a written response to 2022 PAC\n\n71823 that addressed the contested redactions, as well as unredacted copies of the records. On\nSeptember 23, 2022, this office forwarded copies of the two new Requests for Review to the\nHousing Authority and requested the same materials. On October 24, 2022, and October 25, \n2022, this office received the requested materials. In its response, the Housing Authority\nwithdrew its assertion of section 7(1)(a). On October 27, 2022, this office forwarded a copy of\nthe Housing Authority's responses to; \n\nhe replied on November 7, 2023. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that redacts\nrecords \" has the burden of proving by clear and convincing evidence\" that the information is\nexempt from disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nIn his Requests for Review, \n\ncontended that particular portions of\n\nthe records he received were improperly redacted. The Housing Authority's response to this\noffice stated that some of the contested redactions would be withdrawn. Specifically, the\nHousing Authority stated it would issue an amended response withdrawing the redaction of\n\n25 ILCS 140/7(1)(a), (1)(b), (1)(c) (West 2021 Supp.), as amended by Public Acts 102-694, \n\neffective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, \n\nFEINs, \" spot awards,\" and business information. 3 With respect to the remaining contested\nredactions, the Housing Authority maintained that it properly redacted the following: \n\nFootnotes in documents\nEmployment applications, resumes, and references\nEmployee retirement\ninvestment elections\nSocial security cards and driver's licenses\nMiddle initials of employee names\n\nSection 7(1)(b) of FOIA\n\nSection 7(1)(b) of FOIA exempts from disclosure \"[ p] rivate information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order.\" \nSection 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) (West 2020)) defines \" private information\" as: \n\nU]nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal\nnumbers, and personal email addresses. Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\nlicense plates, except as\n\ntelephone\n\nThe Public Access Bureau has previously determined that business information is\n\nnot exempt from disclosure under section 7(1)(b) because it identifies businesses rather than\nindividuals. Ill. Att'y Gen. PAC Req. Rev. Ltr. 48986, issued July 1, 2020, at 4. Thus, business\naddresses, business telephone numbers, and other similar information do not fall within the scope\nof the exemption. Ill. Att'y Gen. PAC Req. Rev. Ltr. 22902, issued June 27, 2016, at 3; Ill. Att'y\nGen. PAC Req. Rev. Ltr. 23125, issued March 26, 2014, at 2. \n\nFootnotes in Documents\n\nIn its response to this office, the Housing Authority asserted that it properly\n\nredacted footnotes contained in the records pursuant\n\nto section 7(1)(b) because they revealed \" the\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n3 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nlocations of the documents referred to in each document.\" 4 The Housing Authority\ninternal\nargued that those internal locations are akin to access codes and thus within the scope of the\nexemption. It argued: \" If the location of the document on the HACD server is known via a\ndocument, then the possibility exists of the use of this information to attempt to access the\nHACD server.\" 5\n\ndisagreed with that claim. He argued, in relevant part: \n\nTo log into an internal server or cloud server, you need to have a\nuser id and password. You cannot access a file unless you have\nbeen granted permission to access the file after being authenticated\nby logging into the system (internal server or cloud server such as\nMicrosoft OneDrive or Google Drive). If the file is on an internal\nserver behind a firewall, like I believe the housing authority uses, \nyou need to have an user id (access code) and password to get\nbehind the firewall into the organization’ s internal network.[6] \n\nBased on this office's review of a sampling of the unredacted records, the\nfootnotes do not contain information that would uniquely identify a person. Rather than\nrevealing any access codes for individual employees, the footnotes provide information about the\nrecordkeeping practices of the Housing Authority. The records do not appear to be accessible\nunless the Housing Authority authorizes access to its internal server, as\nnoted. \nThe Housing Authority also redacted passwords and user identification information for\nindividual employees listed in some of the forms. 7 Although passwords and user IDs are unique\nidentifiers within the scope of section 7(1)(b), the footnotes do not constitute \" private\ninformation\" that is exempt from disclosure under the exemption. \n\nThis office's review also determined that the Housing Authority redacted driver's\nlicense numbers, signatures, and birthdates contained in some of the contested records. Among\nthose records, the Housing Authority redacted driver's license numbers and birthdates in the\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n4 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 4. \n\n5 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nletters to the AHRMA8 and signatures in the \" Employee Statement of Understanding and\nCompliance with the Drug-Free Workplace Act of 1988\" forms.9 The Housing Authority also\nredacted signatures in certain other correspondence. 10 Because those details either constitute\nprivate information\" under section 7(1)(b) or would constitute a clearly unwarranted invasion of\npersonal privacy if disclosed under section 7(1)(c),11 the Housing Authority did not improperly\nredact that information. However, this office requests that the Housing Authority provide\n\nwith copies of the records that disclose the footnotes. \n\nAs noted above, the Housing Authority stated it would withdraw the redaction of\nbusiness information contained in some of the records, acknowledging that the information does\nnot fall within the scope of sections 7(1)(b) or 7(1)(c). The Housing Authority identified some\npages of the records that it would amend. This office notes that business e-mail addresses, \nbusiness telephone numbers, and other business contact details were redacted in other pages of\nthe records.12 Those redactions also do not fall within the scope of section 7(1)(b). Although the\nAuthority indicated it would disclose FEINs, it has the option of redacting them pursuant to\nsection 7(1)(kk) of FOIA.13\n\nAdditionally, the Housing Authority redacted copies of certificates of notary\n\npublic and certain details in other records. With respect to the certificates of notary public, the\nHousing Authority redacted, in relevant part, the commission beginning and ending dates, \ncommission number, and county. The Housing Authority did not explain how those details are\n\n8E.g., page 9 of Bright file, part 1, provided by. \n\n9E.g., page 12 of Bright file, part 1, provided by. \n\nby. \n\n10E. g., pages 1, 2 of Bright file, part 3, provided by; \n\npage 51 of Perkins file provided\n\n11 The Public Access Bureau has consistently determined that personal signatures and birthdates\n\nare exempt from disclosure pursuant to sections 7(1)(b) and 7(1)(c) of FOIA respectively. Ill. Att'y Gen. Pub. Acc. \nOp. No. 14-015, issued November 25, 2014, at 11 (signatures); Ill. Att'y Gen. Pub. Acc. Op. No. 16-009, issued\nNovember 7, 2016, at 12 (birthdates). \n\n1, provided by); \nprovided by). \n\n12E. g., pages 8, 10 of Bright file provided by Housing Authority (pages 10, 17 of Bright file, part\n\nPage 33 of Perkins file provided by Housing Authority (page 66 of Perkins file\n\n135 ILCS 140/7(1)(kk) (West 2021 Supp.), as amended by Public Acts 102-694, effective January\n7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022 (exempting\nfrom disclosure \"[ t]he public body's credit card numbers, debit card numbers, bank account numbers, Federal\nEmployer Identification Number, security code numbers, passwords, and similar account information, the disclosure\nof which could result in identity theft or impression or defrauding of a governmental entity or a person.\"). \n\nexempt from disclosure under sections 7(1)(b) or 7(1)(c). Further, that public notary information\nmay be found on the Illinois Secretary of State website.14 As to the other records, the Housing\nAuthority did not explain the factual or legal bases for redacting certain details15 not otherwise\ndiscussed below. Accordingly, this office requests that the Housing Authority disclose the\ncontested parts of the notary public certificates and other contested details that are not\ndetermined to be exempt from disclosure in subsequent sections of this determination. \n\nSection 7(1)(c) of FOIA\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[ p]ersonal information\n\ncontained within public records, the disclosure of which would constitute a clearly unwarranted\ninvasion of personal privacy, unless the disclosure is consented to in writing by the individual\nsubjects of the information.\" Section 7(1)(c) defines \" unwarranted invasion of personal privacy\" \nas \" the disclosure of information that is highly personal or objectionable to a reasonable person\nand in which the subject's right to privacy outweighs any legitimate public interest in obtaining\nthe information. The disclosure of information that bears on the public duties of public\nemployees and officials shall not be considered an invasion of personal privacy.\" \n\nA public body's assertion that the release of information would constitute a clearly\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis. Chicago\nJourneymen Plumbers' Local Union 130 v. Department of Public Health, 327 Ill. App. 3d 192, \n196 (1st Dist. 2001). Illinois courts consider the following factors in determining whether\ndisclosure of information would constitute an unwarranted invasion of personal privacy: \"(1) the\nplaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of\npersonal privacy, and (4) the availability of alternative means of obtaining the requested\ninformation.\" National Ass' n of Criminal Defense Lawyers v. Chicago Police Department, 399\nIll. App. 3d 1, 13 (1st Dist. 2010). The phrase \" clearly unwarranted invasion of personal\nprivacy\" evinces a strict standard to claim the exemption, and the burden is on the public body\nhaving charge of the record to prove that standard has been met. Schessler v. Department of\nConservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). \n\nhttps://apps.ilsos.gov/notarysearch/ (last visited June 23, 2023). \n\n14 Office of the Illinois Secretary of State, Notary Public Search, \n\nfile provided by Housing Authority (page 5 of the Rodr file provided by). \n\n15E. g., redacted part concerning insurance and benefits located near the bottom of page 4 of Rodr\n\nEmployment Applications, Resumes, and References\n\nThe Attorney General has previously issued a binding opinion concluding that\n\ninformation pertaining to a public employee's past employment and educational experience was\nimproperly withheld under section 7(1)(c) because the \" education, training, and experience that\n\npresumably were considered in determining [a public employee's] eligibility * * * ' bear on' \nhis ability to perform his public duties satisfactorily.\" Ill. Att'y Gen. Pub. Acc. Op. No. 14- 015, \nissued November 25, 2014, at 6; see also Core v. United States Postal Service, 730 F.2d 946, \n947- 48 (4th Cir. 1984) (disclosure of successful applicants' work history would not constitute an\nunwarranted invasion of personal privacy because it \"is simply the type of information every\napplicant seeks to bring to the attention of a prospective employer.\"). \n\nThe Housing Authority acknowledged Binding Opinion 14- 015 but asserted it\n\nproperly redacted parts of the employees' resumes and application materials because \"[ a] \nreasonable person would conclude it would be objectionable to disclose a resume or application\nan employee submitted 14 years ago.\" 16 In particular, the Housing Authority contended that the\nreferences for the employees at issue may no longer remember the individuals and have no\nbearing on the employee's current public duties.17 It also asserted that the references provide\npersonal\ninformation that is exempt from disclosure under section 7(1)(b). The Housing\nAuthority similarly questioned the relevancy of an employee's high school and other educational\nhistory to the individual's current public duties and contended that \"other means exist to get this\ninformation such as a yearbook.\" 18\n\nIn reply to that answer, \n\nargued that the information was still\n\nrelevant and explained that he sought \"to verify that special considerations were not given to\nfriends, and that employees were hired for merit and skills necessary to perform the duties of the\njob.\"19 He also noted that he could not look up some of the information in other sources without\nknowing, for instance, the school district that the individual had attended. \n\nBased on this office's review, the Housing Authority redacted portions of past\n\nemployer information, educational and community service histories, certain application\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 7. \n\n16 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 8. \n\n17 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 8. \n\n18 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nreferences. The Public Access Bureau has previously determined\n\nquestions, and professional\nthat the identities of current and past employers and the dates on which the applicants worked for\nthose employers do not fall within the scope of section 7(1)(c) because those details bear on the\napplicants' qualifications for public employment. Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, \nissued November 28, 2017, at 3-4. The Public Access Bureau has likewise determined that an\napplicant's educational history, references, and award and leadership information are not exempt\nunder section 7(1)(c), as that information also reflects on an individual's qualifications. Ill. Att'y\nGen. PAC Req. Rev. Ltr. 39447, at 3-4. See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 65940, \nissued September 2, 2021 (employment history of successful employment applicant bears on his\nor her qualifications for the offered position, as would any details regarding special courses\ntaken, certifications received, and special skills or experiences that relate to the position); Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 49902, issued May 22, 2018 (educational history and application\nquestions regarding criminal history, legal history, and citizenship relevant to successful\napplicant's qualifications for public duty and character and fitness for position); Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 33143, issued November 19, 2015 (employment\nreferences not exempt\nunder section 7(1)(c) because there is a compelling public interest in disclosure of a public\nemployee's credentials to enable the public to assess the employee's qualifications for public\nduty). \n\nEven if the individuals at issue were long- time employees, there is a significant\n\npublic interest in the information that an applicant for public employment provided to a\nprospective public employer and that the employer considered in its hiring decision. An\nemployee's educational history and references show, for instance, that the individual possessed\nthe basic education and credentials required for the position at the time of hire, while responses\nto questions concerning an applicant's goals and objectives reflect on the individual's ability to\nfurther the public body's mission. Disclosure of this information clearly outweighs the subject's\nlimited right to privacy in such information. Ill. Att'y Gen. PAC Req. Rev. Ltr. 49902, issued\nMay 22, 2018, at 7 (noting that an employee's interest in privacy was mitigated by the passage of\nmore than five years since the submission of the application, as well as by the fact that the\nemployee voluntarily disclosed the information in an application for public employment). \nAccordingly, the Housing Authority did not demonstrate by clear and convincing evidence that it\nproperly redacted portions of the resumes and other application materials pursuant\n7(1)(c) of FOIA. \n\nto section\n\nThis office requests that the Housing Authority disclose the full employment and\n\neducational histories, references, and other above- described information that do not fall within\n\nnumbers or home addresses20 provided by the references pursuant to section 7(1)(b), but any\nbusiness contact information does not fall within the scope of that exemption. \n\nThe Housing Authority also redacted academic transcripts and records of courses\n\ntaken. 21 The Public Access Bureau has previously determined that, although relevant to an\nindividual's hiring, \"academic transcripts that pre-date an individual's employment with a public\nbody and include detailed information about courses taken and grades received that have no\ndirect relationship to the employee's public duties are highly personal in nature[,]\" and the\nindividual's right to privacy outweighs any legitimate public interest in disclosure of this\ninformation. Ill. Att'y Gen. PAC Req. Rev. Ltr. 37877, issued May 9, 2018, at 5. By contrast, \nthere is a strong public interest in the disclosure of academic transcripts and records of courses\ntaken during an individual's employment and that are paid for by a public body because the\ninformation relates to the individual's public duties and is required to be disclosed under section\n2.5 of FOIA.22 Accordingly, if the Housing Authority paid for any of the coursework reflected\nin the transcripts and records of courses taken, those records do not fall within the scope of\nsection 7(1)(c), and this office requests that the Housing Authority disclose the information. \n\nAdditionally, the Housing Authority redacted some salary history information. \n\nreflects payments of public funds, the Attorney\n\nBecause salary history for public employment\nGeneral has determined that such information is expressly subject to disclosure pursuant to\nsection 2.5 of FOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 14-015, issued November 25, 2014, at 8. \nHowever, the salary history of an applicant's private sector jobs does not concern the expenditure\nof public funds. The Public Access Bureau has thus determined that \"[ g]iven its apparently\nlimited relevance to hiring decisions, there is little public interest in obtaining information\nregarding individuals' private employment salaries, but the information is sensitive and highly\npersonal to the individual applicants.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, issued\nNovember 28, 2017, at 6. In those circumstances, the individual's privacy interest outweighs the\nminimal public interest in that information, and the information falls within the scope of section\n7(1)(c). Ill. Att'y Gen. PAC Req. Rev. Ltr. 39447, at 6. Here, the Housing Authority did not\nimproperly redact the salary history disclosed in one e-mail23 because the salary history\ncorresponded with private sector jobs. If any of the remaining records contain salary histories\n\n20E. g., page 91 of Perkins file provided by. \n\nprovided by Housing Authority). \n\n21E. g., pages 36, 40 of Perkins file provided by (pages 25, 26 of Perkins file\n\n22 Section 2.5 of FOIA (5 ILCS 140/2.5 (West 2020)) provides that \"[ a]ll records relating to the\nobligation, receipt, and use of public funds of the State, units of local government, and school districts are public\n\ncorresponding with private sector jobs, the Housing Authority may also withhold that\ninformation, but any public sector salaries are not exempt under section 7(1)(c). \n\nEmployee Retirement Investment Elections\n\nThe Public Access Bureau has previously determined that information reflecting\n\nthe personal financial decisions of an individual and an individual's elections on employee\nbenefits, such as insurance coverage, generally fall within the scope of section 7(1)(c) because\nthey reflect the discretionary decisions and other highly personal\nemployees. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 54786, issued December 6, 2021 (public\nbody did not improperly withhold information concerning individual employees' dependents and\nindividual contribution amounts to insurance plans pursuant to section 7(1)(c)); Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 17922, issued June 26, 2012 (amounts contributed by employees for\nparticular benefit plans that the employees opted to participate in and information concerning\nemployee benefits deductions exempt from disclosure pursuant to section 7(1)(c)). \n\ninformation of individual\n\nThe Housing Authority stated it had redacted information concerning \" participant\n\ndirection of investment to the Trustees of the HACD Retirement Plan.\" 24 The Housing Authority\nargued that this information constituted \" personal financial\nfrom disclosure under section 7(1)(b). It also asserted that the information fell within the scope\nof section 7(1)(c). \n\ninformation\" and thus was exempt\n\nBased on this office's review of a sampling of the records, the Housing Authority\ninvestment and benefit plans: (1) \n\nredacted generally three forms related to employee retirement\nChecklist for Retirement Program Enrollment,\" (2) \"Participant Direction of Investment,\" and\n3) \" Checklist for New Employees.\" With respect to the first form, the Housing Authority\ndisclosed some details (e.g., enrollment and processing dates and month of employee\ncontribution sheet) for a number of the employees, but not all of them. 25 It is unclear the reason\nfor this discrepancy. Because the contested parts of this form appear to have been disclosed for\nmost of the employees, the Housing Authority did not illustrate that the information is highly\npersonal, the disclosure of which would constitute a clearly unwarranted invasion of personal\nprivacy. Accordingly, the Housing Authority did not demonstrate by clear and convincing\nevidence that the contested redactions in the Checklist for Retirement Program Enrollment fall\nwithin the scope of section 7(1)(c). \n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 7. \n\n24 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nWith respect to the remaining two forms, this office's review confirmed that the\n\nforms reveal the personal financial decisions and other personal details of the employees, which\nare unrelated to their public duties. The individuals' privacy interests in their elections on\ninvestments for retirement and insurance plans, including coverage for dependents, outweigh any\nlegitimate public interest in disclosure of this information. Accordingly, the Housing Authority\ndid not improperly redact in whole the Participant Direction of Investment and discrete details\nconcerning benefit elections and dependents in the Checklist for New Employees pursuant to\nsection 7(1)(c). \n\nThis office requests that the Housing Authority disclose the contested details in\n\nthe Checklist for Retirement Program Enrollment. \n\nSocial Security Cards and Driver's Licenses\n\nThe Housing Authority redacted in their entirety the social security cards and\ndriver's licenses of the individuals at issue. The Housing Authority's response to this office\nasserted that section 7(1)(b) expressly exempts from disclosure social security numbers and\ndriver's license numbers, and \"[ c]learly each document is the social security number document or\ndriver's license of the relevant employee.\" 26\nin those records. \n\ndisputed the redaction of the names\n\nThe Public Access Bureau has previously determined that \"[ d] isclosure of a social\n\nsecurity card, even with the social security number redacted, compromises the card holder's\nidentity for purposes of identity theft.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 30407, issued June 9, \n2015, at 4. Because release of a social security card would constitute a clearly unwarranted\ninvasion of personal privacy, this office has concluded that social security cards are exempt in\nwhole pursuant to section 7(1)(c). Ill. Att'y Gen. PAC Req. Rev. Ltr. 30407, at 5. Disclosure of\na person's driver's license, even if mostly redacted, similarly compromises the license holder's\nidentity for purposes of identity theft. Driver's licenses contain not only a person's license\nnumber but other highly personal\nwhich would constitute a clearly unwarranted invasion of personal privacy if disclosed. \n\nMiddle Initials of Employee Names\n\nThe Housing Authority stated that it redacted the middle initials of the individuals\n\nat issue because of concerns of privacy and identity theft. In particular, the Housing Authority\nasserted that disclosure of the middle initials \" significantly increases the chance\" that someone's\nidentity could be stolen.27 It contended that the middle initials are exempt from disclosure under\nthe balancing test of section 7(1)(c): \n\nThe middle initial of each employee is highly personal as it\nidentifies that specific person. Identification of that specific person\nis information that is relevant when considering the issue of\nidentity theft and what information is needed to commit identity\ntheft. A reasonable person would find the disclosure of the middle\ninitial of that person's name in this age of identity theft would\noutweigh the public interest in obtaining this information.[ 28] \n\nAdditionally, the Housing Authority contended that middle initials constitute a\n\nunique identifier\" exempt from disclosure under section 7(1)(b): \"With the advent of 1.4\nmillion cases of identity theft in 2021, privacy expectations today are clearly different\nLieber was decided. An individual's middle initial is clearly a unique identifier of the\nindividual.\"29 In support of that claim, the Housing Authority cited Timpone v. Illinois Student\nAssistance Comm' n, 2019 IL App (1st) 181115, 147 N.E.3d 873 (2019), among other cases. The\nHousing Authority argued that \"Timpone held even though names were not expressly identified\nin Section 2 (c-5), the examples cited in this section are not inclusive.\" 30 It contended that names\nmay constitute private information depending on the circumstances and that \"the request must be\nconsidered in context in determining whether the personal\ninformation requested is nonexempt\nbasic identification subject to disclosure or information of a confidential or private nature[.]\" 31\n\nthan when\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n27 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 6. \n\n28 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n29 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n30 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nGeneral, Public Access Bureau, Office of the Attorney General (October 24, 2022), at 5. \n\n31 Letter from Timothy F. Horning, Meyer & Horning, to Attorney Teresa Lim, Assistant Attorney\n\nIn reply to that answer, \n\nmaintained that names are not exempt\n\nunder section 7(1)(b), and that a person's middle initial is a part of the person's name. He also\nargued that a person's full name \" is used for the duties of the public employment, and it cannot\nbe redacted under section 7(1)(c).\" 32\n\nHaving reviewed the Housing Authority's response and cited case law, the\n\nHousing Authority did not demonstrate that the middle initial of a person's name constitutes a\nunique identifier\" within the scope of section 7(1)(b). The Attorney General has previously\nissued a binding opinion concluding that the names of students enrolled at a university did not\nconstitute \" private information\" under the 7(1)(b) exemption. In reaching that conclusion, this\noffice observed: \" Section 7(1)(b) exempts only private information, and nothing in that\ndefinition or in reading FOIA as a whole suggests that a person's name, or basic identification, is\nprivate information.\" Ill. Att'y Gen. Pub. Acc. Op. No. 12-003, issued January 18, 2012, at 7. \n\nIn Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (1st) 181115, \n\n41, 147 N.E.3d 873, 887 (2019), the Illinois Appellate Court concluded that names may be\n\nwithheld under section 7(1)(b) if their disclosure would reveal an individual's personal financial\ninformation. In that case, the Illinois Student Assistance Commission (ISAC) denied a FOIA\nrequest seeking, in relevant part, the names of all students who received a Monetary Award\nProgram (MAP) grant in 2015, asserting that the information constituted private information. \nTimpone, 2019 IL App (1st) 181115, ¶ 7, 147 N.E.3d at 878. The court determined that the ruling\nin Lieber v. Board of Trustees of Southern Illinois University, 176 Il1. 2d 401, 414, 680 N.E.2d\n374, 380 (1997), which also considered the disclosure of names, was not dispositive because that\ncase involved different statutory language and circumstances. Timpone, 2019 IL App (1st) \n181115, ¶ 35, 147 N.E.3d at 885. The court instead found the exemption for \" personal financial\ninformation\" under section 2(c-5) to be most relevant. Timpone, 2019 IL App (1st) 181115, ¶26, \n147 N.E.3d at 884. Because ISAC posted \" detailed personal\napplicants and recipients\" on its website, the court determined that \"the further disclosure of the\nnames of MAP grant recipients would invade the privacy of those individuals.\" Timpone, 2019\nIL App (1st) 181115, ¶41, 147 N.E.3d at 887. Accordingly, the court concluded that the names\nof the 2015 MAP recipients were exempt from disclosure under section 7(1)(b). Timpone, 2019\nIL App (1st) 181115, ¶41, 147 N.E.3d at 887. \n\nincome information of MAP\n\nThe circumstances in this matter are distinguishable from the situation in\n\nTimpone. Here, the contested records do not contain personal financial\nexception of certain limited documents discussed above. A person's resume and employment\n\nand are not otherwise replete with other unique identifiers, such as those enumerated in section\n2(c-5). The contested records instead mostly contain information that bear on the individual's\nqualifications and ability to perform the public duties assigned to a position. In contrast to\npersonal financial information, information pertaining to the performance of a public employee's\npublic duties are generally subject to disclosure under FOIA. See Ill. Att'y Gen. Pub. Acc. Op. \nNo. 14-015, issued November 25, 2014. The Housing Authority did not demonstrate that the\nmiddle initials in this context would reveal unique identifiers as defined in FOIA. Compare to\nTimpone, 2019 IL App (1st) 181115, ¶41, 147 N.E.3d at 887 (names of recipients of financial aid\nexempt under section 7(1)(b) because disclosure would reveal personal financial\nabout their incomes and family members' incomes posted on ISAC's website). Accordingly, the\nHousing Authority did not sustain its burden of showing by clear and convincing evidence that a\nperson's middle initial constitutes \"private information\" within the scope of section 7(1)(b). \n\ninformation\n\nThe Housing Authority also did not illustrate that a person's middle initial reveals\ninformation, the disclosure of which would cause a clearly unwarranted invasion\n\nhighly personal\nof personal privacy. The middle initials of elected officials' and public employees' names are\noften disclosed in documents and materials that are shared with the public. The Illinois General\nAssembly posts, for instance, the full names of all its members on its website, including the\nmembers' middle initials. 33 Although a middle initial reduces the number of people who share\nthe same name, the Housing Authority's assertion that disclosure of a middle initial would\nsignificantly increase the risk of identity theft is speculative. Further, withholding a portion of a\nperson's name would lead to absurd results, such as the public having no right to learn the full\nnames of government employees or elected officials. See Lieber, 176 Ill.2d at 412, 680 N.E.2d\nat 379. There is a legitimate public interest in knowing the complete and accurate names of\npublic employees and officials that outweighs the subjects' right to privacy in their middle\ninitials. Under these circumstances, the Housing Authority did not demonstrate by clear and\nconvincing evidence that the middle initials are exempt from disclosure pursuant to section\n7(1)(c). This office requests that the Housing Authority disclose the middle initials of the\nindividuals in the records. \n\n33 Illinois General Assembly, Current House Members, 103rd General Assembly, \nhttps://www.ilga.gov/house/ (last visited June 23, 2023); Illinois General Assembly, Current Senate Members, 103rd\nGeneral Assembly, https://www.ilga.gov/senate/ (last visited June 23, 2023)."}
{"id":986,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-17","case_number":null,"request_numbers":["71954"],"title":"City of Chicago improperly withheld Bench Book under 7(1)(f) and 7(1)(m)","filename":"71954, issued March 17, 2023.pdf","rel_path":null,"word_count":3012,"summary":"The requester sought records regarding the City of Chicago's enforcement of vehicle ticketing and impoundment ordinances, but the Department of Administrative Hearings withheld portions of an Administrative Law Judge Bench Book. The PAC determined the Department failed to justify the withholding of these records under FOIA exemptions.","plain_summary":"The ACLU requested records from the City of Chicago regarding vehicle ticketing and impoundment policies. The City refused to release parts of a 'Bench Book' used by administrative judges, claiming it was exempt from disclosure. The Attorney General's office reviewed the document and decided the City did not provide a valid legal reason to keep it secret, ordering the City to release the records.","holding":"The City of Chicago Department of Administrative Hearings improperly withheld portions of the Administrative Law Judge Bench Book under sections 7(1)(f) and 7(1)(m) of FOIA.","legal_question":"Whether the City of Chicago Department of Administrative Hearings properly withheld portions of an Administrative Law Judge Bench Book under the deliberative process (7(1)(f)) and attorney-client privilege (7(1)(m)) exemptions of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)","7(1)(m)"],"public_body":"City of Chicago Department of Administrative Hearings","requesting_party":"Roger Baldwin Foundation of ACLU, Inc.","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"administrative records","subject_description":"The request concerned records related to the City of Chicago's enforcement of ordinances regarding vehicle ticketing, immobilization, and impoundment.","ocr_status":"ok","ocr_quality":93.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_m/Attorney-client-privilege/71954%2C%20issued%20March%2017%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA","administrative hearings","exemption 7(1)(f)","exemption 7(1)(m)","public records"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 17, 2023\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Anthony Rizzo\n\nFOIA Officer\n\nDepartment of Administrative Hearings\n\nCity of Chicago\n\n740 North Sedgwick Street\n\n[street address redacted for site publication -- see original PDF]\nAHfoia@cityofchicago.\n\norg\n\nRE:   FOIA Request\n\nfor Review –  2022 PAC 71954\n\nDear\n\nand Mr. Rizzo: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow,  the\n\nPublic Access Bureau concludes that the City of Chicago Department of Administrative\n\nHearings ( Department) \n\nimproperly denied portions of the records responsive to\n\nNovember 29,  2021,  FOIA request. \n\nOn that date, \n\non behalf of the Roger Baldwin Foundation of ACLU, \n\nInc.,  submitted a FOIA request\n\nto the Department seeking copies of various records regarding the\n\nCity of Chicago' s enforcement of five ordinances concerning vehicle ticketing,  immobilization, \n\nand impoundment.   On December 14,  2021,  the Department provided\n\nwith a copy\n\nof the Administrative Law Judge Bench Book ( Bench Book)  with the first 36 pages withheld\n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: (800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 2\n\npursuant\n\nto section 7( 1)( f) of FOIA ( 5 ILCS 140/ 7( 1)( f) (West 2020),  as amended by Public Acts\n\n102- 038,  effective June 25,  2021;  102- 558,  effective August 20,  2021).   From December 27, \n\n2021, through March 23, 2022, \n\nand the Department exchanged correspondence\n\nregarding the alleged inadequacy of the Department' s response.   On March 23,  2022,  the\n\nDepartment\n\nissued a supplemental\n\nresponse to\n\nand provided copies of additional\n\nboilerplate forms that [ the]  department\nhearing.\" 1 The Department also asserted that the withheld portion of the Bench Book is exempt\n\nissues for determinations of liability and notices of\n\nfrom disclosure pursuant\n\nto section 7(1)( m)  of FOIA ( 5 ILCS 140/ 7(1)( m) ( West 2020),  as\n\namended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021).  \n\nOn May 20,  2022, \n\nsubmitted the above- referenced Request for Review disputing\n\nthat the section 7(1)( f) and 7( 1)( m)  exemptions are applicable to the first 36 pages of the Bench\n\nBook.   \n\nOn May 25,  2022,  this office forwarded a copy of\n\nRequest\n\nfor\n\nReview to the Department and asked it to provide copies of the withheld pages of the Bench\n\nBook,  together with a detailed legal and factual explanation for the applicability of sections\n\n7(1)(f) and 7(1)(m).  On June 15, 2022, the Department furnished those materials.  On that same\n\ndate,  this office forwarded a copy the Department' s response to\n\nhe replied on July\n\n7, 2022. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern Illinoisan v. \n\nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body \"has the burden of\n\nproving by clear and convincing evidence\"  that a record is exempt\n\nfrom disclosure.   5 ILCS\n\n140/ 1.2 ( West 2020). \n\nSection 7( 1)( f) of FOIA\n\nSection 7(1)( f) of FOIA exempts from disclosure \"[ p] reliminary drafts,  notes, \n\nrecommendations,  memoranda and other records in which opinions are expressed,  or policies or\n\nactions are formulated,  except\n\nthat a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\"   The\n\nsection 7(1)( f) exemption is equivalent\n\nin most respects to the deliberative process exemption in\n\nthe Federal FOIA ( 5 U.S.C. §552( b)(5) (2018)),  which applies to \" inter-  and intra- agency\n\npredecisional and deliberative material.\"   Harwood v. McDonough,  344 Ill. App.  3d 242,  247\n\n1Letter\n\nfrom Anthony Rizzo,  FOIA Officer,  Department of Administrative Hearings,  to\n\nMarch 23, 2022),  at 1. \n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 3\n\n1st Dist.  2003).   The exemption is \" intended to protect\n\nthe communications\n\nprocess and\n\nencourage frank and open discussion among agency employees before a final decision is made.\"  \n\nHarwood, 344 Ill. App. 3d at 248; see also Kalven v. City of Chicago, 2013 IL App (1st) 121846, \n\n24,  7 N.E.3d 741,  748 ( 2013),  quoting Public Citizen,  Inc.  v. Office of Management &  Budget, \n\n598 F.3d 865,  876 ( D.C. Cir.  2010) (\" Only those portions of a predecisional document\n\nthat\n\nreflect the give and take of the deliberative process may be withheld.\").   A public body that\n\nasserts the deliberative process exemption \" has the burden of establishing what deliberative\n\nprocess is involved,  and the role played by the documents in issue in the course of that process.\"  \n\nCoastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir 1980).\"  \n\nFurther,  the Attorney General has previously determined that established policies\n\nand training materials do not fall within the scope of section 7(1)( f).  Ill. Att' y Gen.  Pub.  Acc. \n\nOp.  No.  15- 015,  issued December 29,  2015,  at 7 (\"[ W] hen records are used for training purposes\n\nthey constitute final decisions rather than predecisional deliberative materials.\");  Stokes v. \n\nBrennan, 476 F.2d 699, 703 (5th Cir. 1973) (concluding that \" it would be a perversion of the Act\n\nto classify\"  training materials used to train inspectors for the Occupational Safety and Health\n\nAdministration as exempt from disclosure under the deliberative process exemption in Federal\n\nFOIA,  which \" was not defined as an exception to compelled disclosure in order to authorize an\n\nagency to throw a protective blanket over any type of information it might choose by the\n\nexpedient of casting it in the form of an internal memorandum.\");  American Immigration\n\nCouncil v. United States Department of Homeland Security,  905 F. Supp.  2d 206,  218 ( D.D.C. \n\n2012) ( because training materials reflected the agency' s established policy rather than its\n\ndeliberations, \n\nthe deliberative process exemption did not apply). \n\nTo be exempt from disclosure under section 7(1)(f), records \" must be both (1) \n\ninter or intra agency and ( 2) predecisional and deliberative.\"   Fisher v. Office of the Illinois\n\nAttorney General,  195 N.E.3d 719,  726 ( 2021),  appeal denied,  175 N.E.3d 142 ( Ill. 2021).  \" In\n\norder to qualify for the deliberative process exemption,  a document must be both predecisional\n\nin\n\nthe sense that it is actually antecedent\n\nto the adoption of an agency policy,  and deliberative in the\n\nsense that it is actually related to the process by which policies are formulated.\"  Chicago Tribune\n\nCo.  v. Cook County Assessor' s Office,  109 N.E.3d 872,  880 ( 2018). \n\nIn its response to this office,  the Department asserted that the Bench Book is pre-\n\ndecisional\n\nin that it is intended to assist Administrative Law Judges in reaching decisions in\n\nAdministrative Hearings.   The Department argued that the Bench Book is thus part of the\n\ndecision- making process and asserted that \" the Bench Book is intended to provide ' frank\n\ndiscussion'\" \n\nto Administrative Law Judges in that process.\n\n2\n\nIn his reply, \n\nargued that\n\nSternecky,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( June 15, 2022),  at 5. \n\n2Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer,  Department of Administrative Hearings,  to Jane\n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 4\n\nthe Bench Book is not preliminary and noted that the Department' s response also did not argue\n\nthat it is preliminary. \n\nThe forward of the Bench Book,  shared by the Department\n\nin its response to this\n\noffice,  states:  \"'[\n\nt]he Bench Book covers all aspects of the administrative adjudicatory process\n\nand the common legal and situational\n\nissues that may arise in the proceedings.'\"\n\n3\n\nThe document\n\nprovides guidance to Administrative Law Judges in the conduct of an Administrative Hearing, \n\nincluding procedural matters and specific topics that may arise during a hearing.   This office\n\nconcludes that this material is not pre-decisional or deliberative.  While it is intended to provide\n\nguidance for Administrative Law Judges,  it constitutes established policy and is not \" antecedent\n\nto the adoption of an agency policy.\"   See Chicago Tribune Co.,  109 N.E. 3d at 880.   Rather than\n\nreflecting the give and take of a deliberative process, \n\nthe finalized and published document\n\nis a\n\none- way street.   The Bench Book constitutes guidance akin to the training materials discussed\n\nabove.   Because the Bench Book is not pre- decisional deliberative material,  this office concludes\n\nthat the Department improperly withheld it pursuant to section 7(1)(f) of FOIA. \n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure:  \n\nCommunications\n\nbetween a public body and an attorney or\n\nauditor representing the public body that would not be subject to\n\ndiscovery in litigation,  and materials prepared or compiled by or\n\nfor a public body in anticipation of a criminal,  civil or\n\nadministrative proceeding upon the request of an attorney advising\n\nthe public body,  and materials prepared or compiled with respect\n\nto internal audits of public bodies. \n\nCommunications\n\nprotected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m).  People ex rel. Ulrich v. Stukel,  294 Ill. App.  3d 193,  201 ( 1st Dist.  1997).   A\n\nparty asserting that a confidential communication\n\nis protected by the attorney- client privilege\n\nmust show that:  \"( 1) a statement originated in confidence that it would not be disclosed; ( 2) it\n\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\n\nservices;  and ( 3) it remained confidential.\"   Cangelosi v. Capasso,  366 Ill. App.  3d 225,  228 ( 2d\n\nDist.  2006);  see also Hartford Fire Ins.  Co.  v. Garvey,  109 F.R.D. 323,  327 ( N.D. Cal.  1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality,  which is not presumed\").   Moreover, \"[\n\nt]he privilege applies not only\n\nSternecky,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( June 15, 2022),  at 2. \n\n3Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer,  Department of Administrative Hearings,  to Jane\n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 5\n\nto the communications of a client to his attorney,  but also to the advice of an attorney to his\n\nclient.\"   In re Marriage of Granger,  197 Ill. App.  3d 363,  374 ( 5th Dist.  1990);  see also People\n\nv. Radojcic, 2013 IL 114197, ¶40, 998 N.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that\n\nthe privilege is a two- way street,  protecting both the client' s communications\n\nto the attorney and\n\nthe attorney' s advice to the client.\").  \" The privilege does not extend,  however,  beyond the\n\nsubstance of the client' s confidential communications\n\nto the attorney.\"    In re Fischel,  557 F.2d\n\n209, 211-12 (9th Cir. 1977), citing Colton v. United States, 306 F.2d 633 (2d Cir. 1962), cert. \n\ndenied,  371 U.S.  951,  83 S.  Ct.  505 ( 1963).   This privilege does not extend to all\n\ncommunications from an attorney to a client, but only those where \" the 'primary' or 'predominant\n\npurpose'  of the communication is to render or solicit legal advice.\"   Towne Place Condominium\n\nAss' n v. Philadelphia Indemnity Insurance Co.,  284 F. Supp.  3d 889,  894 ( N.D. Ill. 2018). \n\nA public body that withholds records under section 7( 1)( m)  must provide a\n\nsupporting factual basis for the application of the exemption: \n\nI]n meeting its burden,  the public body may not simply treat the\n\nwords \" attorney-client privilege\"  or \"legal advice\"  as some\n\ntalisman,  the mere utterance of which magically casts a spell of\n\nsecrecy over the documents at issue. Rather, the public body can\n\nmeet\n\nits burden only by providing some objective indicia that the\n\nexemption is applicable under the circumstances.  ( Emphasis in\n\noriginal.)   Illinois Education Ass' n, 204 Ill. 2d at 470. \n\nThe attorney- client privilege applies to communications:  \n\n1) Where legal advice of any kind is sought, ( 2) from a\n\nprofessional\n\nlegal advisor\n\nin his capacity as such, ( 3)  the\n\ncommunications\n\nrelating to that purpose, ( 4) made in confidence, \n\n5)  by the client, ( 6)  are permanently protected, ( 7)  from disclosure\n\nby himself or the legal advisor, ( 8) except the protection be\n\nwaived.   Illinois Education Ass' n, 204 Ill. 2d at 467 ( 2003). \n\nIn its response to this office,  the Department argued that the Bench Book is\n\nprivileged because it \"is ( 1) intended to provide legal advice to Departmental ALJs on several\n\nissues, ( 2)  was drafted by a departmental attorney for that purpose, ( 3)  the materials at issue were\n\nspecifically intended to give legal advice, ( 4) have been kept confidential by ( 5) the Department\n\nand are ( 6)  continuously protected from disclosure by ( 7)  Department personnel and ( 8)  the\n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 6\n\nDepartment has not waived the privilege.\"\n\n4\n\nIn reply, \n\nargued that,  rather than\n\nconfidential\n\nlegal advice,  the Bench Book is a general guidance document. \n\nIn American Immigration Council,  the court held that PowerPoint slides used to\n\ntrain agency attorneys to interact with private attorneys were not privileged because the agency\n\nhad not established a connection to confidential\n\ninformation obtained from a client.   The court\n\nexplained:   \n\nThe agency]  offers no explanation of what confidential client\n\ncommunications might underlie these slides,  and the slides\n\nthemselves do not hint at underpinning confidentialities.   Nor\n\nshould they.   The slides were used for general\n\ntrainings by\n\nagency] \n\nlawyers,  and such generally applicable legal advice will\n\nrest on none of the factual particularities\n\nconveyed in a typical\n\nconfidential communication by a client.  American Immigration\n\nCouncil,  905 F. Supp.  2d at 222- 23.   \n\nSimilarly,  in this matter the Department provided no objective indicia that the\n\nwithheld portions of the Bench Book convey legal advice based on underlying confidential\n\ncommunications.   This office' s review of the Bench Book also finds no objective indicia that the\n\nBench Book constitutes legal advice that meets the criteria to apply the attorney- client\n\nexemption.   As described above,  the Bench Book conveys guidance to Administrative\n\nLaw\n\nJudges about\n\nthe processes and issues that may arise during an Administrative Hearing.   Rather\n\nthan providing advice regarding underlying confidential\n\nfacts,  the Bench Book provides\n\ngeneralized procedural and factual information that may be useful to Administrative Law Judges\n\nin potential\n\nfuture hearings.   To the extent that the Bench Book summarizes cases or describes\n\nthe current state of the law,  it does so based on previously concluded hearings and settled cases, \n\nrather than any underlying confidential\n\nfacts ascertained or shared by the Department.   The\n\nattorney- client privilege extends to communications\n\nfrom an attorney to a client in order to\n\nprotect\n\nthe secrecy of underlying facts.   See In re Fischel,  557 F.2d 209,  211- 12 ( 9th Cir. 1977).  \n\nBecause the Bench Book is not based on confidential\n\nfacts conveyed by the Department as client\n\nto an attorney,  and disclosure of the Bench Book will not reveal any privileged facts or\n\ncommunications, \n\nthis office concludes that the Department\n\nimproperly withheld it pursuant\n\nto\n\nsection 7(1)(m) of FOIA. \n\nSternecky,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( June 15, 2022),  at 4. \n\n4Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer,  Department of Administrative Hearings,  to Jane\n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 7\n\nAttorney Work Product\n\nThe Public Access Bureau has previously determined that the section 7(1)(m) \n\nexemption also encompasses records excluded from discovery under the Illinois work product\n\ndoctrine.   Ill. Att' y PAC Req.  Rev.  Ltr.  20541,  issued January 10,  2013,  at 4.   The parameters of\n\nwork product\"  are set forth in Illinois Supreme Court Rule 201( b)(2), which provides that\n\nmaterial prepared \" by or for a party in preparation for trial is subject to discovery only if it does\n\nnot contain or disclose the theories,  mental\n\nimpressions,  or litigation plans of the party' s\n\nattorney.\"  A public body asserting that records are attorney work-product must demonstrate that\n\nthe records \"' reveal the shaping process by which the attorney has arranged the available\n\nevidence for use in trial as dictated by his training and experience[.]' [ Citation.]\"   Monier v. \n\nChamberlain,  35 Ill. 2d 351,  359 ( 1966). \n\nTraining materials are distinguishable\n\nfrom work product even if the training\n\nmaterials were developed in anticipation of agency proceedings.   American Immigration\n\nCouncil,  905 F. Supp.  2d at 222.   Work product must be prepared in connection with litigation\n\narising from a particular transaction and involve \" assembling information, sifting through facts, \n\npreparing legal theories,  or planning strategy\"  for an agency case.   American Immigration\n\nCouncil, 905 F. Supp. 2d at 222.  Thus, guidance and training materials that are generally\n\napplicable or relevant\n\nto the type of cases a public body litigates are not attorney work product. \n\nThough the Department described the Bench Book as \" work product,\"\n\n5\n\nit did not\n\nadvance this argument,  and the Department' s description of the document\n\nin its response\n\nindicates that it was not prepared for use in a particular\n\ntrial or hearing.   This office' s review of\n\nthe record confirms this. \n\nFor the reasons stated above,  the Department has not sustained its burden of\n\ndemonstrating by clear and convincing evidence that the Bench Book is exempt from disclosure\n\nunder section 7(1)( f) or 7( 1)( m).   Therefore,  this office requests that the Department disclose the\n\ncontested portion of the Bench Book to\n\nSternecky,  Assistant Attorney General,  Public Access Bureau,  Office of the Attorney General ( June 15,  2022),  at 3. \n\n5Letter\n\nfrom Anthony J. Rizzo Jr, FOIA Officer,  Department of Administrative Hearings,  to Jane\n\n\fMr.  Anthony Rizzo\n\nMarch 17,  2023\n\nPage 8\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\n\nany questions, please contact me benjamin.silver@ilag.gov or (773) 590-7878.   \n\nVery truly yours, \n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n71954 f 1f improper 71m improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An administrative law judge bench book on vehicle enforcement","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-71954/","full_text":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nMarch 17, 2023\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Anthony Rizzo\n\nFOIA Officer\n\nDepartment of Administrative Hearings\n\nCity of Chicago\n\n740 North Sedgwick Street\n\n[street address redacted for site publication -- see original PDF]\nAHfoia@cityofchicago.\n\norg\n\nRE: FOIA Request\n\nfor Review – 2022 PAC 71954\n\nDear\n\nand Mr. Rizzo: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Chicago Department of Administrative\n\nHearings (Department) \n\nimproperly denied portions of the records responsive to\n\nNovember 29, 2021, FOIA request. \n\nOn that date, \n\non behalf of the Roger Baldwin Foundation of ACLU, \n\nInc., submitted a FOIA request\n\nto the Department seeking copies of various records regarding the\n\nCity of Chicago's enforcement of five ordinances concerning vehicle ticketing, immobilization, \n\nand impoundment. On December 14, 2021, the Department provided\n\nwith a copy\n\nof the Administrative Law Judge Bench Book (Bench Book) with the first 36 pages withheld\n\npursuant\n\nto section 7(1)(f) of FOIA (5 ILCS 140/ 7(1)(f) (West 2020), as amended by Public Acts\n\n102- 038, effective June 25, 2021; 102- 558, effective August 20, 2021). From December 27, \n\n2021, through March 23, 2022, \n\nand the Department exchanged correspondence\n\nregarding the alleged inadequacy of the Department's response. On March 23, 2022, the\n\nDepartment\n\nissued a supplemental\n\nresponse to\n\nand provided copies of additional\n\nboilerplate forms that [ the] department\nhearing.\" 1 The Department also asserted that the withheld portion of the Bench Book is exempt\n\nissues for determinations of liability and notices of\n\nfrom disclosure pursuant\n\nto section 7(1)(m) of FOIA (5 ILCS 140/ 7(1)(m) (West 2020), as\n\namended by Public Acts 102-038, effective June 25, 2021; 102-558, effective August 20, 2021). \n\nOn May 20, 2022, \n\nsubmitted the above- referenced Request for Review disputing\n\nthat the section 7(1)(f) and 7(1)(m) exemptions are applicable to the first 36 pages of the Bench\n\nBook. \n\nOn May 25, 2022, this office forwarded a copy of\n\nRequest\n\nfor\n\nReview to the Department and asked it to provide copies of the withheld pages of the Bench\n\nBook, together with a detailed legal and factual explanation for the applicability of sections\n\n7(1)(f) and 7(1)(m). On June 15, 2022, the Department furnished those materials. On that same\n\ndate, this office forwarded a copy the Department's response to\n\nhe replied on July\n\n7, 2022. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\n\nbe open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \n\nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\n\nproving by clear and convincing evidence\" that a record is exempt\n\nfrom disclosure. 5 ILCS\n\n140/ 1.2 (West 2020). \n\nSection 7(1)(f) of FOIA\n\nSection 7(1)(f) of FOIA exempts from disclosure \"[ p] reliminary drafts, notes, \n\nrecommendations, memoranda and other records in which opinions are expressed, or policies or\n\nactions are formulated, except\n\nthat a specific record or relevant portion of a record shall not be\n\nexempt when the record is publicly cited and identified by the head of the public body.\" The\n\nsection 7(1)(f) exemption is equivalent\n\nin most respects to the deliberative process exemption in\n\n1st Dist. 2003). The exemption is \" intended to protect\n\nthe communications\n\nprocess and\n\nencourage frank and open discussion among agency employees before a final decision is made.\" \n\nHarwood, 344 Ill. App. 3d at 248; see also Kalven v. City of Chicago, 2013 IL App (1st) 121846, \n\n24, 7 N.E.3d 741, 748 (2013), quoting Public Citizen, Inc. v. Office of Management & Budget, \n\n598 F.3d 865, 876 (D.C. Cir. 2010) (\" Only those portions of a predecisional document\n\nthat\n\nreflect the give and take of the deliberative process may be withheld.\"). A public body that\n\nasserts the deliberative process exemption \" has the burden of establishing what deliberative\n\nprocess is involved, and the role played by the documents in issue in the course of that process.\" \n\nCoastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 868 (D.C. Cir 1980).\" \n\nFurther, the Attorney General has previously determined that established policies\n\nand training materials do not fall within the scope of section 7(1)(f). Ill. Att' y Gen. Pub. Acc. \n\nOp. No. 15- 015, issued December 29, 2015, at 7 (\"[ W] hen records are used for training purposes\n\nthey constitute final decisions rather than predecisional deliberative materials.\"); Stokes v. \n\nBrennan, 476 F.2d 699, 703 (5th Cir. 1973) (concluding that \" it would be a perversion of the Act\n\nto classify\" training materials used to train inspectors for the Occupational Safety and Health\n\nAdministration as exempt from disclosure under the deliberative process exemption in Federal\n\nFOIA, which \" was not defined as an exception to compelled disclosure in order to authorize an\n\nagency to throw a protective blanket over any type of information it might choose by the\n\nexpedient of casting it in the form of an internal memorandum.\"); American Immigration\n\nCouncil v. United States Department of Homeland Security, 905 F. Supp. 2d 206, 218 (D.D.C. \n\n2012) (because training materials reflected the agency's established policy rather than its\n\ndeliberations, \n\nthe deliberative process exemption did not apply). \n\nTo be exempt from disclosure under section 7(1)(f), records \" must be both (1) \n\ninter or intra agency and (2) predecisional and deliberative.\" Fisher v. Office of the Illinois\n\nAttorney General, 195 N.E.3d 719, 726 (2021), appeal denied, 175 N.E.3d 142 (Ill. 2021). \" In\n\norder to qualify for the deliberative process exemption, a document must be both predecisional\n\nin\n\nthe sense that it is actually antecedent\n\nto the adoption of an agency policy, and deliberative in the\n\nsense that it is actually related to the process by which policies are formulated.\" Chicago Tribune\n\nCo. v. Cook County Assessor's Office, 109 N.E.3d 872, 880 (2018). \n\nIn its response to this office, the Department asserted that the Bench Book is pre-\n\ndecisional\n\nin that it is intended to assist Administrative Law Judges in reaching decisions in\n\nAdministrative Hearings. The Department argued that the Bench Book is thus part of the\n\ndecision- making process and asserted that \" the Bench Book is intended to provide ' frank\n\ndiscussion'\" \n\nto Administrative Law Judges in that process.\n\n2\n\nIn his reply, \n\nargued that\n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (June 15, 2022), at 5. \n\nthe Bench Book is not preliminary and noted that the Department's response also did not argue\n\nthat it is preliminary. \n\nThe forward of the Bench Book, shared by the Department\n\nin its response to this\n\noffice, states: \"'[\n\nt]he Bench Book covers all aspects of the administrative adjudicatory process\n\nand the common legal and situational\n\nissues that may arise in the proceedings.'\"\n\n3\n\nThe document\n\nprovides guidance to Administrative Law Judges in the conduct of an Administrative Hearing, \n\nincluding procedural matters and specific topics that may arise during a hearing. This office\n\nconcludes that this material is not pre-decisional or deliberative. While it is intended to provide\n\nguidance for Administrative Law Judges, it constitutes established policy and is not \" antecedent\n\nto the adoption of an agency policy.\" See Chicago Tribune Co., 109 N.E. 3d at 880. Rather than\n\nreflecting the give and take of a deliberative process, \n\nthe finalized and published document\n\nis a\n\none- way street. The Bench Book constitutes guidance akin to the training materials discussed\n\nabove. Because the Bench Book is not pre- decisional deliberative material, this office concludes\n\nthat the Department improperly withheld it pursuant to section 7(1)(f) of FOIA. \n\nSection 7(1)(m) of FOIA\n\nSection 7(1)(m) of FOIA exempts from disclosure: \n\nCommunications\n\nbetween a public body and an attorney or\n\nauditor representing the public body that would not be subject to\n\ndiscovery in litigation, and materials prepared or compiled by or\n\nfor a public body in anticipation of a criminal, civil or\n\nadministrative proceeding upon the request of an attorney advising\n\nthe public body, and materials prepared or compiled with respect\n\nto internal audits of public bodies. \n\nCommunications\n\nprotected by the attorney- client privilege are within the scope of\n\nsection 7(1)(m). People ex rel. Ulrich v. Stukel, 294 Ill. App. 3d 193, 201 (1st Dist. 1997). A\n\nparty asserting that a confidential communication\n\nis protected by the attorney- client privilege\n\nmust show that: \"(1) a statement originated in confidence that it would not be disclosed; (2) it\n\nwas made to an attorney acting in his legal capacity for the purpose of securing legal advice or\n\nservices; and (3) it remained confidential.\" Cangelosi v. Capasso, 366 Ill. App. 3d 225, 228 (2d\n\nDist. 2006); see also Hartford Fire Ins. Co. v. Garvey, 109 F.R.D. 323, 327 (N.D. Cal. 1985) \n\nThe proponent of the privilege carries the burden of establishing all elements of the privilege, \n\nincluding confidentiality, which is not presumed\"). Moreover, \"[\n\nt]he privilege applies not only\n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (June 15, 2022), at 2. \n\nto the communications of a client to his attorney, but also to the advice of an attorney to his\n\nclient.\" In re Marriage of Granger, 197 Ill. App. 3d 363, 374 (5th Dist. 1990); see also People\n\nv. Radojcic, 2013 IL 114197, ¶40, 998 N.E.2d 1212, 1221-22 (2013) (\"[ T]he modern view is that\n\nthe privilege is a two- way street, protecting both the client's communications\n\nto the attorney and\n\nthe attorney's advice to the client.\"). \" The privilege does not extend, however, beyond the\n\nsubstance of the client's confidential communications\n\nto the attorney.\" In re Fischel, 557 F.2d\n\n209, 211-12 (9th Cir. 1977), citing Colton v. United States, 306 F.2d 633 (2d Cir. 1962), cert. \n\ndenied, 371 U.S. 951, 83 S. Ct. 505 (1963). This privilege does not extend to all\n\ncommunications from an attorney to a client, but only those where \" the 'primary' or 'predominant\n\npurpose' of the communication is to render or solicit legal advice.\" Towne Place Condominium\n\nAss' n v. Philadelphia Indemnity Insurance Co., 284 F. Supp. 3d 889, 894 (N.D. Ill. 2018). \n\nA public body that withholds records under section 7(1)(m) must provide a\n\nsupporting factual basis for the application of the exemption: \n\nI]n meeting its burden, the public body may not simply treat the\n\nwords \" attorney-client privilege\" or \"legal advice\" as some\n\ntalisman, the mere utterance of which magically casts a spell of\n\nsecrecy over the documents at issue. Rather, the public body can\n\nmeet\n\nits burden only by providing some objective indicia that the\n\nexemption is applicable under the circumstances. (Emphasis in\n\noriginal.) Illinois Education Ass' n, 204 Ill. 2d at 470. \n\nThe attorney- client privilege applies to communications: \n\n1) Where legal advice of any kind is sought, (2) from a\n\nprofessional\n\nlegal advisor\n\nin his capacity as such, (3) the\n\ncommunications\n\nrelating to that purpose, (4) made in confidence, \n\n5) by the client, (6) are permanently protected, (7) from disclosure\n\nby himself or the legal advisor, (8) except the protection be\n\nwaived. Illinois Education Ass' n, 204 Ill. 2d at 467 (2003). \n\nIn its response to this office, the Department argued that the Bench Book is\n\nprivileged because it \"is (1) intended to provide legal advice to Departmental ALJs on several\n\nissues, (2) was drafted by a departmental attorney for that purpose, (3) the materials at issue were\n\nspecifically intended to give legal advice, (4) have been kept confidential by (5) the Department\n\nDepartment has not waived the privilege.\"\n\n4\n\nIn reply, \n\nargued that, rather than\n\nconfidential\n\nlegal advice, the Bench Book is a general guidance document. \n\nIn American Immigration Council, the court held that PowerPoint slides used to\n\ntrain agency attorneys to interact with private attorneys were not privileged because the agency\n\nhad not established a connection to confidential\n\ninformation obtained from a client. The court\n\nexplained: \n\nThe agency] offers no explanation of what confidential client\n\ncommunications might underlie these slides, and the slides\n\nthemselves do not hint at underpinning confidentialities. Nor\n\nshould they. The slides were used for general\n\ntrainings by\n\nagency] \n\nlawyers, and such generally applicable legal advice will\n\nrest on none of the factual particularities\n\nconveyed in a typical\n\nconfidential communication by a client. American Immigration\n\nCouncil, 905 F. Supp. 2d at 222- 23. \n\nSimilarly, in this matter the Department provided no objective indicia that the\n\nwithheld portions of the Bench Book convey legal advice based on underlying confidential\n\ncommunications. This office's review of the Bench Book also finds no objective indicia that the\n\nBench Book constitutes legal advice that meets the criteria to apply the attorney- client\n\nexemption. As described above, the Bench Book conveys guidance to Administrative\n\nLaw\n\nJudges about\n\nthe processes and issues that may arise during an Administrative Hearing. Rather\n\nthan providing advice regarding underlying confidential\n\nfacts, the Bench Book provides\n\ngeneralized procedural and factual information that may be useful to Administrative Law Judges\n\nin potential\n\nfuture hearings. To the extent that the Bench Book summarizes cases or describes\n\nthe current state of the law, it does so based on previously concluded hearings and settled cases, \n\nrather than any underlying confidential\n\nfacts ascertained or shared by the Department. The\n\nattorney- client privilege extends to communications\n\nfrom an attorney to a client in order to\n\nprotect\n\nthe secrecy of underlying facts. See In re Fischel, 557 F.2d 209, 211- 12 (9th Cir. 1977). \n\nBecause the Bench Book is not based on confidential\n\nfacts conveyed by the Department as client\n\nto an attorney, and disclosure of the Bench Book will not reveal any privileged facts or\n\ncommunications, \n\nthis office concludes that the Department\n\nimproperly withheld it pursuant\n\nto\n\nsection 7(1)(m) of FOIA. \n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (June 15, 2022), at 4. \n\nAttorney Work Product\n\nThe Public Access Bureau has previously determined that the section 7(1)(m) \n\nexemption also encompasses records excluded from discovery under the Illinois work product\n\ndoctrine. Ill. Att' y PAC Req. Rev. Ltr. 20541, issued January 10, 2013, at 4. The parameters of\n\nwork product\" are set forth in Illinois Supreme Court Rule 201(b)(2), which provides that\n\nmaterial prepared \" by or for a party in preparation for trial is subject to discovery only if it does\n\nnot contain or disclose the theories, mental\n\nimpressions, or litigation plans of the party's\n\nattorney.\" A public body asserting that records are attorney work-product must demonstrate that\n\nthe records \"' reveal the shaping process by which the attorney has arranged the available\n\nevidence for use in trial as dictated by his training and experience[.]' [ Citation.]\" Monier v. \n\nChamberlain, 35 Ill. 2d 351, 359 (1966). \n\nTraining materials are distinguishable\n\nfrom work product even if the training\n\nmaterials were developed in anticipation of agency proceedings. American Immigration\n\nCouncil, 905 F. Supp. 2d at 222. Work product must be prepared in connection with litigation\n\narising from a particular transaction and involve \" assembling information, sifting through facts, \n\npreparing legal theories, or planning strategy\" for an agency case. American Immigration\n\nCouncil, 905 F. Supp. 2d at 222. Thus, guidance and training materials that are generally\n\napplicable or relevant\n\nto the type of cases a public body litigates are not attorney work product. \n\nThough the Department described the Bench Book as \" work product,\"\n\n5\n\nit did not\n\nadvance this argument, and the Department's description of the document\n\nin its response\n\nindicates that it was not prepared for use in a particular\n\ntrial or hearing. This office's review of\n\nthe record confirms this. \n\nFor the reasons stated above, the Department has not sustained its burden of\n\ndemonstrating by clear and convincing evidence that the Bench Book is exempt from disclosure\n\nunder section 7(1)(f) or 7(1)(m). Therefore, this office requests that the Department disclose the\n\ncontested portion of the Bench Book to\n\nSternecky, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (June 15, 2022), at 3. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me benjamin.silver@ilag.gov or (773) 590-7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n71954 f 1f improper 71m improper mun"}
{"id":987,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-06-30","case_number":null,"request_numbers":["72083","72085"],"title":"Illinois Department on Aging properly denied records without written authorization","filename":"72083 72085, issued June 30, 2022.pdf","rel_path":null,"word_count":866,"summary":"The requester sought records concerning two individuals from the Illinois Department on Aging, which were denied due to the lack of required written authorization. The PAC determined that the Department properly denied the requests because the records are confidential under the Adult Protective Services Act.","plain_summary":"The requester sought Department of Aging records concerning two named individuals without submitting the written authorization, evidence of guardianship or agency, and sworn statement of purpose that the department's rules require before releasing confidential adult-protective-services records. The PAC determined that because the requester did not provide the required documentation, the department's denial complied with the confidentiality provisions of the Adult Protective Services Act. The department did not improperly deny the request.","holding":"The Illinois Department on Aging did not improperly deny the FOIA requests because the requester failed to provide the necessary written authorization required by law to access confidential records.","legal_question":"Whether the Illinois Department on Aging properly denied a FOIA request for confidential records under the Adult Protective Services Act when the requester failed to provide required written authorization.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(y)"],"public_body":"Illinois Department on Aging","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"personnel records","subject_description":"The request sought records concerning two individuals maintained by the Department on Aging under the Adult Protective Services Act.","ocr_status":"ok","ocr_quality":97.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_y/72083%2072085%2C%20issued%20June%2030%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["confidential records","Adult Protective Services Act","Department on Aging","written authorization"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 30, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:   FOIA Requests for Review –  2022 PAC 72083;  2022 PAC 72085\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)).   For the reasons set forth below,  the\nPublic Access Bureau concludes that no further inquiry is warranted.  \n\nOn April 13, 2022,  and April 14, 2022,  you submitted FOIA requests to the\n\nIllinois Department on Aging ( Department)  seeking records concerning two named individuals, \none of whom you indicated is your brother.   On April 14, 2022,  and April 15, 2022,  the\nDepartment denied your requests pursuant to section 7.5(y) of FOIA. 1 In its denial letters,  the\nDepartment noted that it requires a written authorization from the subject of the records or their\nauthorized agent for the release of the requested information.   On June 10, 2022,  this office\nreceived your completed Requests for Review contesting the Department' s denial.   \n\nSection 7.5(y) of FOIA exempts from disclosure: \n\nConfidential\n\ninformation under the Adult Protective\n\nServices Act and its predecessor enabling statute,  the Elder Abuse\nand Neglect Act, including information about the identity and\nadministrative finding against any caregiver of a verified and\nsubstantiated decision of abuse,  neglect,  or financial exploitation of\nan eligible adult maintained in the Registry established under\n\n15 ILCS 140/7.5(y) (West 2020),  as amended by Public Acts 102- 036, effective June 25, 2021; \n102- 237, effective January 1, 2022;  102- 292, effective January 1, 2022;  102- 520, effective August 20, 2021;  102-\n559, effective August 20, 2021;  102- 813, effective May 13, 2022;  102- 1042,  effective June 3, 2022. \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844-5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800) 964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618) 529-6416\n\n\fJune 30, 2022\nPage 2\n\nSection 7.5 of the Adult Protective Services Act.  (Emphasis\nadded.) \n\nSection 8 of the Adult Protective Services Act (320 ILCS 20/8 (West 2020),  as\n\namended by Public Act 102- 244, effective January 1, 2022)  states that \"[ a] ll records concerning\nreports of abuse,  abandonment,  neglect,  financial exploitation,  or self- neglect and all records\ngenerated as a result of such reports shall be confidential and shall not be disclosed except as\nspecifically authorized by this Act or other applicable law.\"  Section 8 lists the categories of\nindividuals or entities permitted access to those records.   Among the individuals eligible to\nreceive copies of the records is \"[ a] n eligible adult reported to be abused,  abandoned,  neglected, \nfinancially exploited,  or self- neglected,  or such adult' s authorized guardian or agent,  unless such\nguardian or agent is the abuser or the alleged abuser[.]\"   320 ILCS 20/8(4) (West 2020).   \n\nThe administrative rules implementing section 8 of the Adult Protective Services\n\nAct further specify that the records may be released to a legal guardian or agent \" who has current\nauthority to act on behalf of the eligible adult when access to those records is relevant to\nrepresenting the interests of the eligible adult,  and a complete authorization for release of records\nis submitted,  unless the guardian or agent is the substantiated abuser or is the alleged abuser in an\nopen case[.]\"   89 Ill. Admin.  Code § 270.275(d)( 6) (2022),  as amended at 42 Ill. Reg.  9226, \neffective July 1, 2018.  ( Italics removed.)   The rules further explain: \n\nAn authorization for release of records by the Department\n\nor the APS provider agencies must be legally sufficient and\ninclude: \n\n1)          supporting documentation of the agency or guardianship\nevidencing current authority and the extent of the authority to act\non behalf of the eligible adult or his or her estate;  and\n\n2)          a sworn statement as to the purpose of the request and its\nrelevance to representing the interests of the eligible adult or his or\nher estate.[ 2] \n\nYour FOIA requests to the Department did not include the required written\n\nauthorization certifying that you are the named individuals'  legal guardian or agent,  the extent of\nyour authority to act on behalf of those individuals,  and a sworn statement describing the purpose\nof your request and its relevance to the interests of the named individuals.   Because the rules\nimplementing the Adult Protective Services Act prohibit disclosure of the responsive records\n\n289 Ill. Admin.  Code § 270.275( e) ( 2022),  as amended at 42 Ill. Reg. 9226,  effective July 1, 2018. \n\n\fJune 30, 2022\nPage 3\n\nwithout the required written authorization,  this office concludes that the Department did not\nimproperly deny your requests.   \n\nIf you have any questions,  you may contact me by e-mail at\n\nlaura.harter@ilag. gov.  This letter serves to close these matters.  \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n72083 72085 f no fi war sa\n\ncc: \n\nVia electronic mail\nMs. Linda Ballard\nFOIA Officer\nOffice of General Counsel\nIllinois Department on Aging\nOne Natural Resources Way, Suite 100\nSpringfield,  Illinois 62702\naging. foia@illinois. gov\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester asked the Illinois Department on Aging for records about two individuals, but the Department refused, stating that such records are confidential and require written permission from the subjects. The Attorney General's office agreed with the Department, noting that the requester did not provide the legal authorization or documentation required to access these protected files. Consequently, the PAC closed the case without further action.","card_headline":"Records on two individuals under the Adult Protective Services Act","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72083/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJune 30, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Requests for Review – 2022 PAC 72083; 2022 PAC 72085\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further inquiry is warranted. \n\nOn April 13, 2022, and April 14, 2022, you submitted FOIA requests to the\n\nIllinois Department on Aging (Department) seeking records concerning two named individuals, \none of whom you indicated is your brother. On April 14, 2022, and April 15, 2022, the\nDepartment denied your requests pursuant to section 7.5(y) of FOIA. 1 In its denial letters, the\nDepartment noted that it requires a written authorization from the subject of the records or their\nauthorized agent for the release of the requested information. On June 10, 2022, this office\nreceived your completed Requests for Review contesting the Department's denial. \n\nSection 7.5(y) of FOIA exempts from disclosure: \n\nConfidential\n\ninformation under the Adult Protective\n\nServices Act and its predecessor enabling statute, the Elder Abuse\nand Neglect Act, including information about the identity and\nadministrative finding against any caregiver of a verified and\nsubstantiated decision of abuse, neglect, or financial exploitation of\nan eligible adult maintained in the Registry established under\n\n15 ILCS 140/7.5(y) (West 2020), as amended by Public Acts 102- 036, effective June 25, 2021; \n102- 237, effective January 1, 2022; 102- 292, effective January 1, 2022; 102- 520, effective August 20, 2021; 102-\n559, effective August 20, 2021; 102- 813, effective May 13, 2022; 102- 1042, effective June 3, 2022. \n\nSection 7.5 of the Adult Protective Services Act. (Emphasis\nadded.) \n\nSection 8 of the Adult Protective Services Act (320 ILCS 20/8 (West 2020), as\n\namended by Public Act 102- 244, effective January 1, 2022) states that \"[ a] ll records concerning\nreports of abuse, abandonment, neglect, financial exploitation, or self- neglect and all records\ngenerated as a result of such reports shall be confidential and shall not be disclosed except as\nspecifically authorized by this Act or other applicable law.\" Section 8 lists the categories of\nindividuals or entities permitted access to those records. Among the individuals eligible to\nreceive copies of the records is \"[ a] n eligible adult reported to be abused, abandoned, neglected, \nfinancially exploited, or self- neglected, or such adult's authorized guardian or agent, unless such\nguardian or agent is the abuser or the alleged abuser[.]\" 320 ILCS 20/8(4) (West 2020). \n\nThe administrative rules implementing section 8 of the Adult Protective Services\n\nAct further specify that the records may be released to a legal guardian or agent \" who has current\nauthority to act on behalf of the eligible adult when access to those records is relevant to\nrepresenting the interests of the eligible adult, and a complete authorization for release of records\nis submitted, unless the guardian or agent is the substantiated abuser or is the alleged abuser in an\nopen case[.]\" 89 Ill. Admin. Code § 270.275(d)(6) (2022), as amended at 42 Ill. Reg. 9226, \neffective July 1, 2018. (Italics removed.) The rules further explain: \n\nAn authorization for release of records by the Department\n\nor the APS provider agencies must be legally sufficient and\ninclude: \n\n1) supporting documentation of the agency or guardianship\nevidencing current authority and the extent of the authority to act\non behalf of the eligible adult or his or her estate; and\n\n2) a sworn statement as to the purpose of the request and its\nrelevance to representing the interests of the eligible adult or his or\nher estate.[ 2] \n\nYour FOIA requests to the Department did not include the required written\n\nauthorization certifying that you are the named individuals' legal guardian or agent, the extent of\nyour authority to act on behalf of those individuals, and a sworn statement describing the purpose\nof your request and its relevance to the interests of the named individuals. Because the rules\nimplementing the Adult Protective Services Act prohibit disclosure of the responsive records\n\n289 Ill. Admin. Code § 270.275(e) (2022), as amended at 42 Ill. Reg. 9226, effective July 1, 2018. \n\nwithout the required written authorization, this office concludes that the Department did not\nimproperly deny your requests. \n\nIf you have any questions, you may contact me by e-mail at\n\nlaura.harter@ilag. gov. This letter serves to close these matters. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n72083 72085 f no fi war sa\n\ncc: \n\nVia electronic mail\nMs. Linda Ballard\nFOIA Officer\nOffice of General Counsel\nIllinois Department on Aging\nOne Natural Resources Way, Suite 100\nSpringfield, Illinois 62702\naging. foia@illinois. gov"}
{"id":988,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-04-25","case_number":null,"request_numbers":["72599"],"title":"City of The City's $20 fee for voluminous PDF records did not violate FOIA","filename":"72599, issued April 25, 2024.pdf","rel_path":null,"word_count":427,"summary":"The requester challenged the fees charged by the City for a voluminous FOIA request, and the PAC determined the fees were consistent with the statutory limits set forth in Section 6(a-5).","plain_summary":"The requester challenged a $20 fee a city charged in response to a request the city had already determined was voluminous under FOIA's fee provisions for large requests. The PAC determined that because the responsive records were maintained electronically in PDF format totaling no more than 80 megabytes, the fee schedule for voluminous electronic PDF requests permitted the city to charge up to $20 for that volume of data. The city's fee did not violate FOIA.","holding":"The City did not violate FOIA by charging a $20 fee for a voluminous request consisting of less than 80 megabytes of data in PDF format.","legal_question":"Whether a public body's fee assessment for a voluminous request for electronic records in PDF format complied with the fee schedules established in 5 ILCS 140/6(a-5).","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"The City","requesting_party":"Scott Zak","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The dispute concerned the appropriate fee calculation for a voluminous FOIA request for electronic records.","ocr_status":"ok","ocr_quality":99.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a-5/72599%2C%20issued%20April%2025%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","voluminous request","electronic records","FOIA costs"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"\f\fMr. Scott Zak\nApril 25, 2024\nPage 3\n\nthe public body shall furnish it in the format in which it is\nmaintained by the public body,  or in paper format at the option of\nthe requester.  A public body may charge the requester for the\nactual cost of purchasing the recording medium,  whether disc, \ndiskette,  tape,  or other medium.    \n\nSection 6(a-5) of FOIA 10 further provides: \n\nIf a voluminous request is for electronic records and those\n\nrecords are not in a portable document format ( PDF),  the public\nbody may charge up to $20 for not more than 2 megabytes of data, \nup to $40 for more than 2 but not more than 4 megabytes of data, \nand up to $100 for more than 4 megabytes of data.   If a\nvoluminous request is for electronic records and those records\nare in a portable document format,  the public body may\ncharge up to $20 for not more than 80 megabytes of data, up to\n40 for more than 80 megabytes but not more than 160 megabytes\nof data,  and up to $100 for more than 160 megabytes of data.   If\nthe responsive electronic records are in both a portable document\nformat and not in a portable document format,  the public body may\nseparate the fees and charge the requester under both fee scales.  \nEmphasis added.) \n\nrequest specifically sought copies of records \" in their native\n\nformat.\" 11 The City confirmed that the responsive records are stored electronically in a portable\ndocument format and would require the compilation of not more than 80 megabytes of data.   The\nplain language of section 6(a-5) of FOIA permits a public body to charge up to $20.00 for\nrecords responsive to a voluminous request that consists of not more than 80 megabytes of data.  \nBecause this office has previously determined that\nJune 7, 2022,  FOIA request was\na voluminous request,  and because section 6(a-5) expressly permits the charge assessed by the\nCity, the City's fees did not violate FOIA.  \n\n105 ILCS 140/ 6(a-5) (West 2022).  \n\n11E- mail from ] \n\nto [ Scott Zak] ( June 7, 2022).   \n\n\fMr. Scott Zak\nApril 25, 2024\nPage 4\n\nThe Public Access Counselor has determined that the resolution of this matter\n\ndoes not require the issuance of a binding opinion.   This matter is closed.   If you have FOIA or\nOMA questions,  you may contact me at the Chicago address on the bottom of the first page of\nthis letter. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n72599 f 6a-5 fee proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":"A requester challenged the amount a city charged for providing electronic records under a 'voluminous' FOIA request. The Attorney General's office reviewed the law and found that the city's $20 fee was permitted under the specific fee schedule for electronic records. Consequently, the PAC closed the matter, finding no violation of the law.","card_headline":"Fee calculation for a voluminous electronic records request","full_text_pre_backfill":"the public body shall furnish it in the format in which it is\nmaintained by the public body, or in paper format at the option of\nthe requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. \n\nSection 6(a-5) of FOIA 10 further provides: \n\nIf a voluminous request is for electronic records and those\n\nrecords are not in a portable document format (PDF), the public\nbody may charge up to $20 for not more than 2 megabytes of data, \nup to $40 for more than 2 but not more than 4 megabytes of data, \nand up to $100 for more than 4 megabytes of data. If a\nvoluminous request is for electronic records and those records\nare in a portable document format, the public body may\ncharge up to $20 for not more than 80 megabytes of data, up to\n40 for more than 80 megabytes but not more than 160 megabytes\nof data, and up to $100 for more than 160 megabytes of data. If\nthe responsive electronic records are in both a portable document\nformat and not in a portable document format, the public body may\nseparate the fees and charge the requester under both fee scales. \nEmphasis added.) \n\nrequest specifically sought copies of records \" in their native\n\nformat.\" 11 The City confirmed that the responsive records are stored electronically in a portable\ndocument format and would require the compilation of not more than 80 megabytes of data. The\nplain language of section 6(a-5) of FOIA permits a public body to charge up to $20.00 for\nrecords responsive to a voluminous request that consists of not more than 80 megabytes of data. \nBecause this office has previously determined that\nJune 7, 2022, FOIA request was\na voluminous request, and because section 6(a-5) expressly permits the charge assessed by the\n\nThe Public Access Counselor has determined that the resolution of this matter\n\ndoes not require the issuance of a binding opinion. This matter is closed. If you have FOIA or\nOMA questions, you may contact me at the Chicago address on the bottom of the first page of\nthis letter. \n\nVery truly yours, \n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n72599 f 6a-5 fee proper mun","disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72599/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 25, 2024\n\nVia electronic mail\n[name redacted for site publication -- see original PDF]\n\nVia electronic mail\nMr. Scott Zak\nFOIA Officer\nCity of DeKalb\n164 East Lincoln Highway\nDeKalb, Illinois 60115\nscott.zak@cityofdekalb.com\n\nRE: FOIA Request for Review - 2022 PAC 72599; City FOIA No.: N000154\n\nDear [name redacted] and Mr. Zak:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA).1 For the reasons explained below, the Public Access Bureau concludes that the fees charged by the City of DeKalb (City) in response to [requester]'s June 7, 2022, FOIA request did not violate FOIA.\n\nOn that day, [requester] submitted a FOIA request to the City seeking copies of \"City of DeKalb FOIA N000093-041622 Information should include: the Original FOIA request from the Requestor and the response from the city along with all responsive documents. All documents are to be provided in their native format.\"2 Based on the records [requester] included with his Request for Review, the City responded on July 6, 2022, assessing\n\n1 5 ILCS 140/9.5(f) (West 2022).\n2 E-mail from [requester] to [Scott Zak] (June 7, 2022).\n\na fee of $20.00 to obtain the records he was seeking pursuant to section 6 of FOIA.3 On July 12, 2022, [requester] submitted this Request for Review contesting the fees.\n\nOn July 20, 2022, this office forwarded a copy of the Request for Review to the City and asked it to provide a detailed explanation of the legal and factual bases for the fees the City assessed in its response. On July 21, 2022, the City submitted a written response. On July 25, 2022, this office forwarded a copy of the City's response to [requester]; he replied on August 2, 2022.4 On August 2, 2022, the City responded to [requester]'s reply on its own accord.\n\nDETERMINATION\n\nIn its answer to this office, the City stated that it responded on June 14, 2022,5 informing [requester] that it was treating his request as a voluminous request pursuant to section 3.6 of FOIA.6 The City noted that the voluminous request designation was at issue in a previous Request for Review in which the Public Access Bureau determined that the City properly treated the underlying request as voluminous.7\n\nSection 6 of FOIA8 provides the authority for a public body to charge fees for certain records. Section 6(a) of FOIA9 provides, in pertinent part:\n\nWhen a person requests a copy of a record maintained in an electronic format, the public body shall furnish it in the electronic format specified by the requester, if feasible. If it is not feasible to furnish the public records in the specified electronic format, then\n\n3 5 ILCS 140/6(b) (West 2022).\n4 [Requester]'s reply argues that the underlying FOIA request was improperly treated as a voluminous request. However, that issue was resolved in a previous Request for Review (2022 PAC 72265) and is not at issue in this matter. The matter in this Request for Review is limited to the assessment of fees.\n5 Although section 9.5(a)(ii) (5 ILCS 140/9.5(a)(ii) (West 2022)) requires a requester to submit \"any responses from the public body[,]\" [requester] did not provide this office with the City's June 14, 2022, response.\n6 5 ILCS 140/3.6 (West 2022).\n7 Ill. Att'y Gen. PAC Req. Rev. Ltr. 72265, issued July 13, 2022, at 4.\n8 5 ILCS 140/6 (West 2022).\n9 5 ILCS 140/6(a) (West 2022).\n\nthe public body shall furnish it in the format in which it is\nmaintained by the public body, or in paper format at the option of\nthe requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc,\ndiskette, tape, or other medium.\n\nSection 6(a-5) of FOIA 10 further provides:\n\nIf a voluminous request is for electronic records and those\nrecords are not in a portable document format (PDF), the public\nbody may charge up to $20 for not more than 2 megabytes of data,\nup to $40 for more than 2 but not more than 4 megabytes of data,\nand up to $100 for more than 4 megabytes of data. If a\nvoluminous request is for electronic records and those records\nare in a portable document format, the public body may\ncharge up to $20 for not more than 80 megabytes of data, up to\n40 for more than 80 megabytes but not more than 160 megabytes\nof data, and up to $100 for more than 160 megabytes of data. If\nthe responsive electronic records are in both a portable document\nformat and not in a portable document format, the public body may\nseparate the fees and charge the requester under both fee scales.\n(Emphasis added.)\n\n[Requester]'s request specifically sought copies of records \"in their native\nformat.\" 11 The City confirmed that the responsive records are stored electronically in a portable\ndocument format and would require the compilation of not more than 80 megabytes of data. The\nplain language of section 6(a-5) of FOIA permits a public body to charge up to $20.00 for\nrecords responsive to a voluminous request that consists of not more than 80 megabytes of data.\nBecause this office has previously determined that [requester]'s June 7, 2022, FOIA request was\na voluminous request, and because section 6(a-5) expressly permits the charge assessed by the\nCity, the City's fees did not violate FOIA.\n\n10 5 ILCS 140/6(a-5) (West 2022).\n11 E-mail from [requester] to [Scott Zak] (June 7, 2022).\n\nThe Public Access Counselor has determined that the resolution of this matter\ndoes not require the issuance of a binding opinion. This matter is closed. If you have FOIA or\nOMA questions, you may contact me at the Chicago address on the bottom of the first page of\nthis letter.\n\nVery truly yours,\n\nSHANNON BARNABY\nSenior Assistant Attorney General\nPublic Access Bureau\n\n72599 f 6a-5 fee proper mun"}
{"id":989,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-05","case_number":null,"request_numbers":["72761"],"title":"Chicago Transportation improperly required FOIA requester to provide search parameters","filename":"72761, issued October 5, 2023.pdf","rel_path":null,"word_count":2165,"summary":"The requester sought communications between the Chicago Department of Transportation and 45th Ward aldermanic staff regarding maintenance agreements, but the Department claimed the request was unduly burdensome. The PAC determined the Department's search was inadequate and directed it to conduct a new, more comprehensive search.","plain_summary":"A person requested documents, including emails and text messages, from the Chicago Department of Transportation regarding maintenance agreements for plantings on Milwaukee Avenue. The Department initially said the request was unduly burdensome and asked the requester to narrow it, but later provided seven email exchanges after a search. The Illinois Attorney General's office found that the Department improperly required the requester to provide search parameters and cautioned the Department to stop that practice in the future. The determination did not order a new search or require the Department to provide additional records.","holding":"The Department's responses improperly required the requester to provide search parameters, and the Department is cautioned to refrain from such practices in the future.","legal_question":"Whether the Chicago Department of Transportation conducted an adequate search for records responsive to a FOIA request before claiming it was unduly burdensome under 5 ILCS 140/3(g).","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Department of Transportation","requesting_party":null,"pac_outcome":"Violation found; search deemed inadequate","pac_law_type":null,"subject_category":"FOIA search adequacy","subject_description":"The request sought communications between the Department of Transportation and aldermanic staff regarding maintenance agreements for plantings.","ocr_status":"ok","ocr_quality":90.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_d/Completeness-of-Search/72761%2C%20issued%20October%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","search adequacy","FOIA request","city records"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Erica Schroeder\nFreedom of Information Officer\nChicago Department of Transportation\n2 North LaSalle Street,  Suite 1110\nChicago,  Illinois 60602\nerica. schroeder@cityofchicago. org\ncdotfoia@cityofchicago. org\n\nRE:   FOIA Request for Review –  2022 PAC 72761\n\nDear\n\nand Ms. Schroeder: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).  \n\nOn that date, \n\nsubmitted a FOIA request to the Chicago\n\nDepartment of Transportation ( Department)  seeking copies of documents,  including e-mails and\ntext messages,  sufficient to show the Department' s communications with 45th Ward aldermanic\nstaff concerning updated maintenance agreements for plantings on Milwaukee Avenue\nNorthwest Highway to Peterson).   He included a timeframe of approximately three years and\neight keywords/ key phrases.  \nDepartment with his request,  stating that he had requested the maintenance agreements submitted\nto the Department by then- 45th Ward Alderman Arena in May 2019 and that the Department\nresponded that it could not locate those records but would work with the newly- elected\nAlderman Gardiner to secure the agreements.   Later on June 23, 2022,  the Department responded\nby stating the FOIA request was unduly burdensome under section 3(g) of FOIA ( 5 ILCS\n\nalso provided background information to the\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 2\n\n140/( 3)(g) (West 2022))  and asked\nto narrow the request by providing e-mail\naccounts to search,  keywords,  and a timeframe ( even though he had already provided two of\nthose three things).   The Department also invited\nassistance with how to narrow his request.   Later still on that same date, \nthe Department and provided the name of a Department employee— Mr. Leonard Aluise— and\ncurrent and past 45th Ward office staff members.   On July 7, 2022, \ne-mailed the\nDepartment' s FOIA Office and requested \" a 'conference to narrow'  to straighten out the hastily\nmade Department FOIA Office' s mistakes of the recent past.\" 1 On July 18, 2022,  the\nDepartment responded by stating it did not possess any responsive maintenance agreements.   The\nDepartment also stated that for the e-mail portion of the request,  it needed\nidentify the e-mail addresses of the accounts to be searched.   \n\nto reach out if he sought\n\ne-mailed\n\nto\n\nOn July 25, 2022,  this office received\n\nRequest for Review\n\ncontesting the Department' s response.   He noted that his request was not limited to e-mails and\nargued that the Department had an improper habit of requiring requesters to identify e-mail\naccounts to be searched. \n\nOn July 29, 2022,  this office forwarded a copy of the Request for Review to the\nDepartment and asked it to provide to this office a detailed written answer to the allegations in\nthe Request for Review by describing any search it performed for the documents,  including who\nwas consulted,  which recordkeeping systems were searched,  and the method( s) used to search.  \nThis office also asked the Department\nmust identify specific e-mail accounts for the Department to process the FOIA request.   On\nAugust 22, 2022,  the Department responded by defending its practice of requiring requesters to\nidentify e-mail accounts to search,  indicating that the city's e-mail search system does not allow\nlimiting a search to a department as a whole.   The Department also stated that it overlooked\n\nto explain the legal basis for asserting that\n\ne-mail supplying the staff member' s name but would perform a search of that staff\n\nmember' s e-mails using the data range and keywords\nDepartment also reiterated that it had been unable to locate responsive documents regarding the\nupdated maintenance agreement at issue. \n\nhad supplied.   The\n\nOn August 23, 2022,  this office forwarded a copy of the Department' s August 22, \n\n2022,  correspondence to\n\nwho responded by asserting: \n\nOnly CDOT would have the knowledge to determine who\nwas delegated to contact the 45th Ward Office regarding securing\nmaintenance agreements. * * * [ T]he onus is on the CDOT to find\nnot only these communications to the 45th Ward Office but also to\n\n1E- mail from\n\nto CDOT FOIA Officer [ Erica]  Schroeder ( July 7, 2022). \n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 3\n\nsearch the project files for the salient documents.  I would suggest\ncontacting the CDOT Project Manager for the construction\ncontract that built the planting areas in question as a starting place. \nMy FOIA is not limited to an email search.[ 2]  \n\nalso stated that he had since been informed that a former Department employee, \nwas involved in the design phase of constructing the planting areas;  he\n\nsuggested that records could be sought from the design engineer who took over the former\nemployee' s files. \n\nOn September 2, 2022,  the Department provided\n\nwith a\n\nsupplemental response consisting of copies of seven e-mail exchanges in which Department\nFOIA requests,  and a letter describing its\nemployees discuss how to handle\nsearch for responsive records only as to e-mails.   On September 6, 2022, \nthat response.  \n\nreplied to\n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern\nIllinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006).   The adequacy of\na public body's search for responsive records is judged by a standard of reasonableness and\ndepends upon the particular facts of the case.   Better Government Ass'n v. City of Chicago,  2020\nIL App (1st)  190038, ¶ 31, 169 N.E.3d 1066,  1076 ( 2020).  \" Although a public body is not\nrequired to perform an exhaustive search of every possible location,  the body must construe\nFOIA requests liberally and search those places that are ' reasonably likely to contain responsive\nrecords.'\"   Better Government Ass'n, 2020 IL App ( 1st)  190038, ¶ 31, 169 N.E.3d at 1076\nquoting Judicial Watch,  Inc. v. U.S. Dep't of Justice,  373 F. Supp.  3d 120,  126 ( D.D.C. 2019)).  \nHowever, \"[ a]  requester is entitled only to records that an agency has in fact chosen to create and\nretain.\"  Yeager v. Drug Enforcement Administration,  678 F.2d 315, 321 ( D.C. Cir. 1982).  \" At all\ntimes the burden is on the [ public body]  to establish the adequacy of its search.\"   Rugiero v. U.S. \nDep't of Justice,  257 F.3d 534, 547 ( 6th Cir. 2001).   \n\nAs an initial matter,  the Department' s June 23, 2022,  and July 18, 2022,  responses\n\nimproperly sought to require\nDepartment to conduct a search.   The Public Access Counselor has issued a binding opinion\nconcluding: \n\nto provide several parameters in order for the\n\n2E- mail from\n\nto [ Matt]  Goodman ( June 23, 2022). \n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 4\n\nBecause a public body rather than a member of the public is\ntypically in a better position to know the names and e-mail\naddresses of public employees who would maintain records\npertaining to specific topics,  a requester is not required to identify\nspecific employees or employee e-mail addresses in order to\nreasonably describe e-mails concerning a particular subject matter. \nThe failure to provide such information does not render a FOIA\nrequest unduly burdensome.   Ill. Att'y Gen.  Pub.  Acc. Op. No. 23-\n007, issued May 26, 2023,  at 11. \n\nCiting case law, the binding opinion also explained that \" FOIA generally does not require a\nrequester to provide keywords[,]\"  and that \"[ p] ublic bodies are obligated to devise reasonable\nsearch terms.\"   Ill. Att'y Gen.  Pub.  Acc. Op. No. 23-007, at n.12.  Further,  the Department' s June\nneeded to provide parameters that he had already\n23, 2022,  response claimed that\nprovided.   This office cautions the Department\nto refrain from requiring requesters to provide\nspecific search parameters in the future,  and instead to formulate its own reasonable search\nparameters. \n\nThe Department asserted that, pursuant to\n\nRequest for Review,  it\n\nsearched Mr. Aluise' s e-mail account for e-mails containing any of the keywords\nlisted over the timeframe he provided.   According to the Department:  \n\nThis search produced more than 10,100 items.  In order to\nproduce these emails,  each email would need to be reviewed and\ninformation exempt under FOIA would need to be redacted.  One\nreason why the search result was so large is that some of the terms, \nsuch as \" Gardiner\"  and \" 45th\"  are commonly used in email\nsignatures of 45th Ward staff members.  Other terms,  like\nMilwaukee\",  are also common.  Therefore,  this search pulled\nthousands of emails that would have no relation to\nFOIA request.  It would be unduly burdensome to review more than\n10,000 emails.   \n\nIn an effort to narrow the search and provide more relevant\n\nresults ( communication concerning maintenance agreements on\nMilwaukee Avenue),  CDOT adjusted the search in the following\nways:  \n\nSearched for emails of three relevant CDOT staffers whose\n\naccounts are reasonably likely to contain responsive records\n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 5\n\nLeonard Aluise,  Ben Reynoso,  and David Smith)  for the\nfollowing search terms: \" plantings\", \" Gardiner\", \" 45th\", \nMilwaukee\", \" curb extension\",  AND \" maintenance agreement\".[ 3] \n\nThe Department stated that the only e-mails this search produced are the e-mails provided to\n\nin which employees discuss how to respond to his requests.   Six of the e-mail threads\nare from April 2022,  while the seventh is from August 2020.   The Department also stated that its\nstaff also searched for relevant files and documents and found no records regarding\nmaintenance agreements for plantings on Milwaukee Avenue ( North Highway to Peterson).\" 4\n\nIn his reply, \n\ndisputed the adequacy of the search on the basis that\n\nthe records he received did not reflect any communication with Alderman Gardiner or his staff.  \nHe argued that the Department\nto search the account of\n\nfailed to confer with him about narrowing his request and failed\n\nAlthough this office expressly asked the Department to address who was\n\nconsulted during its search for responsive records,  which recordkeeping systems were searched, \nand the methods used to search,  the Department addressed documents other than e-mails by\nmerely stating that its staff searched relevant files and documents;  the Department did not\nidentify any staff members consulted,  which recordkeeping systems were searched,  or anything\nspecific about any search methods.   It is not evident from the Department' s communications in\nthis matter how the Department maintains any file folders or otherwise maintains non- e-mail\ndocuments involving maintenance agreements of the kind at issue or involving 45th Ward\nmatters.   \n\nAs to the e-mails, the information the Department provided indicates that the\n\nDepartment appropriately searched Mr. Aluise' s e-mail account for the relevant time period and\nappropriately identified two other employees whom the Department believed were reasonably\nlikely to have sent or received responsive e-mails.   Additionally,  the Department made use of the\nkeywords\nsupplied in formulating a focused search query that did not encompass\nunrelated matters.   On the other hand,  the Department did not indicate why it did not search the\naccount of\n23, 2022,  correspondence.   Similarly,  the Department did not indicate why it did not use any of\n\nidentifying him as an involved party in his June\n\ndespite\n\n3Letter from Erica Schroeder,  Director of Public Information,  Chicago Department of\n\nTransportation,  to Matthew G. Goodman,  Assistant Attorney General,  Public Access Bureau,  Office of the Illinois\nAttorney General ( September 1, 2022),  at 1-2. \n\n4Letter from Erica Schroeder,  Director of Public Information,  Chicago Department of\n\nTransportation,  to Matthew G. Goodman,  Assistant Attorney General,  Public Access Bureau,  Office of the Illinois\nAttorney General ( September 1, 2022),  at 2.  \n\n\fMs. Erica Schroeder\nOctober 5, 2023\nPage 6\n\nthe 45th Ward staff member information\nrequest when it conducted its search.   \n\nprovided in response to the Department' s\n\nUnder these circumstances,  the Public Access Bureau is unable to conclude that\n\nthe Department responded properly to\nDepartment to conduct a new search that includes\nstaff contact information,  as well as communicating with the staff members who are reasonably\nlikely to have sent or received responsive correspondence.   The Department should then disclose\nany responsive records it locates or, if it locates no other records,  provide a description of its\nsearch containing the information asked about in this office' s July 29, 2022,  inquiry letter.  \n\nFOIA request.   This office asks the\n\ne-mail account and 45th Ward\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   This letter shall serve to close this matter.   If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n72761 f 3a search improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Communications about maintenance agreements for plantings","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-72761/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Erica Schroeder\nFreedom of Information Officer\nChicago Department of Transportation\n2 North LaSalle Street, Suite 1110\nChicago, Illinois 60602\nerica. schroeder@cityofchicago. org\ncdotfoia@cityofchicago. org\n\nRE: FOIA Request for Review – 2022 PAC 72761\n\nDear\n\nand Ms. Schroeder: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). \n\nOn that date, \n\nsubmitted a FOIA request to the Chicago\n\nDepartment of Transportation (Department) seeking copies of documents, including e-mails and\ntext messages, sufficient to show the Department's communications with 45th Ward aldermanic\nstaff concerning updated maintenance agreements for plantings on Milwaukee Avenue\nNorthwest Highway to Peterson). He included a timeframe of approximately three years and\neight keywords/ key phrases. \nDepartment with his request, stating that he had requested the maintenance agreements submitted\nto the Department by then- 45th Ward Alderman Arena in May 2019 and that the Department\nresponded that it could not locate those records but would work with the newly- elected\nAlderman Gardiner to secure the agreements. Later on June 23, 2022, the Department responded\nby stating the FOIA request was unduly burdensome under section 3(g) of FOIA (5 ILCS\n\nalso provided background information to the\n\n140/(3)(g) (West 2022)) and asked\nto narrow the request by providing e-mail\naccounts to search, keywords, and a timeframe (even though he had already provided two of\nthose three things). The Department also invited\nassistance with how to narrow his request. Later still on that same date, \nthe Department and provided the name of a Department employee— Mr. Leonard Aluise— and\ncurrent and past 45th Ward office staff members. On July 7, 2022, \ne-mailed the\nDepartment's FOIA Office and requested \" a 'conference to narrow' to straighten out the hastily\nmade Department FOIA Office's mistakes of the recent past.\" 1 On July 18, 2022, the\nDepartment responded by stating it did not possess any responsive maintenance agreements. The\nDepartment also stated that for the e-mail portion of the request, it needed\nidentify the e-mail addresses of the accounts to be searched. \n\nto reach out if he sought\n\ne-mailed\n\nto\n\nOn July 25, 2022, this office received\n\nRequest for Review\n\ncontesting the Department's response. He noted that his request was not limited to e-mails and\nargued that the Department had an improper habit of requiring requesters to identify e-mail\naccounts to be searched. \n\nOn July 29, 2022, this office forwarded a copy of the Request for Review to the\nDepartment and asked it to provide to this office a detailed written answer to the allegations in\nthe Request for Review by describing any search it performed for the documents, including who\nwas consulted, which recordkeeping systems were searched, and the method(s) used to search. \nThis office also asked the Department\nmust identify specific e-mail accounts for the Department to process the FOIA request. On\nAugust 22, 2022, the Department responded by defending its practice of requiring requesters to\nidentify e-mail accounts to search, indicating that the city's e-mail search system does not allow\nlimiting a search to a department as a whole. The Department also stated that it overlooked\n\nto explain the legal basis for asserting that\n\ne-mail supplying the staff member's name but would perform a search of that staff\n\nmember's e-mails using the data range and keywords\nDepartment also reiterated that it had been unable to locate responsive documents regarding the\nupdated maintenance agreement at issue. \n\nhad supplied. The\n\nOn August 23, 2022, this office forwarded a copy of the Department's August 22, \n\n2022, correspondence to\n\nwho responded by asserting: \n\nOnly CDOT would have the knowledge to determine who\n\nsearch the project files for the salient documents. I would suggest\ncontacting the CDOT Project Manager for the construction\ncontract that built the planting areas in question as a starting place. \nMy FOIA is not limited to an email search.[ 2] \n\nalso stated that he had since been informed that a former Department employee, \nwas involved in the design phase of constructing the planting areas; he\n\nsuggested that records could be sought from the design engineer who took over the former\nemployee's files. \n\nOn September 2, 2022, the Department provided\n\nwith a\n\nsupplemental response consisting of copies of seven e-mail exchanges in which Department\nFOIA requests, and a letter describing its\nemployees discuss how to handle\nsearch for responsive records only as to e-mails. On September 6, 2022, \nthat response. \n\nreplied to\n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern\nIllinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). The adequacy of\na public body's search for responsive records is judged by a standard of reasonableness and\ndepends upon the particular facts of the case. Better Government Ass'n v. City of Chicago, 2020\nIL App (1st) 190038, ¶ 31, 169 N.E.3d 1066, 1076 (2020). \" Although a public body is not\nrequired to perform an exhaustive search of every possible location, the body must construe\nFOIA requests liberally and search those places that are ' reasonably likely to contain responsive\nrecords.'\" Better Government Ass'n, 2020 IL App (1st) 190038, ¶ 31, 169 N.E.3d at 1076\nquoting Judicial Watch, Inc. v. U.S. Dep't of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019)). \nHowever, \"[ a] requester is entitled only to records that an agency has in fact chosen to create and\nretain.\" Yeager v. Drug Enforcement Administration, 678 F.2d 315, 321 (D.C. Cir. 1982). \" At all\ntimes the burden is on the [ public body] to establish the adequacy of its search.\" Rugiero v. U.S. \nDep't of Justice, 257 F.3d 534, 547 (6th Cir. 2001). \n\nAs an initial matter, the Department's June 23, 2022, and July 18, 2022, responses\n\nimproperly sought to require\n\nBecause a public body rather than a member of the public is\ntypically in a better position to know the names and e-mail\naddresses of public employees who would maintain records\npertaining to specific topics, a requester is not required to identify\nspecific employees or employee e-mail addresses in order to\nreasonably describe e-mails concerning a particular subject matter. \nThe failure to provide such information does not render a FOIA\nrequest unduly burdensome. Ill. Att'y Gen. Pub. Acc. Op. No. 23-\n007, issued May 26, 2023, at 11. \n\nCiting case law, the binding opinion also explained that \" FOIA generally does not require a\nrequester to provide keywords[,]\" and that \"[ p] ublic bodies are obligated to devise reasonable\nsearch terms.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23-007, at n.12. Further, the Department's June\nneeded to provide parameters that he had already\n23, 2022, response claimed that\nprovided. This office cautions the Department\nto refrain from requiring requesters to provide\nspecific search parameters in the future, and instead to formulate its own reasonable search\nparameters. \n\nThe Department asserted that, pursuant to\n\nRequest for Review, it\n\nsearched Mr. Aluise's e-mail account for e-mails containing any of the keywords\nlisted over the timeframe he provided. According to the Department: \n\nThis search produced more than 10,100 items. In order to\nproduce these emails, each email would need to be reviewed and\ninformation exempt under FOIA would need to be redacted. One\nreason why the search result was so large is that some of the terms, \nsuch as \" Gardiner\" and \" 45th\" are commonly used in email\nsignatures of 45th Ward staff members. Other terms, like\nMilwaukee\", are also common. Therefore, this search pulled\nthousands of emails that would have no relation to\nFOIA request. It would be unduly burdensome to review more than\n10,000 emails. \n\nIn an effort to narrow the search and provide more relevant\n\nLeonard Aluise, Ben Reynoso, and David Smith) for the\nfollowing search terms: \" plantings\", \" Gardiner\", \" 45th\", \nMilwaukee\", \" curb extension\", AND \" maintenance agreement\".[ 3] \n\nThe Department stated that the only e-mails this search produced are the e-mails provided to\n\nin which employees discuss how to respond to his requests. Six of the e-mail threads\nare from April 2022, while the seventh is from August 2020. The Department also stated that its\nstaff also searched for relevant files and documents and found no records regarding\nmaintenance agreements for plantings on Milwaukee Avenue (North Highway to Peterson).\" 4\n\nIn his reply, \n\ndisputed the adequacy of the search on the basis that\n\nthe records he received did not reflect any communication with Alderman Gardiner or his staff. \nHe argued that the Department\nto search the account of\n\nfailed to confer with him about narrowing his request and failed\n\nAlthough this office expressly asked the Department to address who was\n\nconsulted during its search for responsive records, which recordkeeping systems were searched, \nand the methods used to search, the Department addressed documents other than e-mails by\nmerely stating that its staff searched relevant files and documents; the Department did not\nidentify any staff members consulted, which recordkeeping systems were searched, or anything\nspecific about any search methods. It is not evident from the Department's communications in\nthis matter how the Department maintains any file folders or otherwise maintains non- e-mail\ndocuments involving maintenance agreements of the kind at issue or involving 45th Ward\nmatters. \n\nAs to the e-mails, the information the Department provided indicates that the\n\nDepartment appropriately searched Mr. Aluise's e-mail account for the relevant time period and\nappropriately identified two other employees whom the Department believed were reasonably\nlikely to have sent or received responsive e-mails. Additionally, the Department made use of the\nkeywords\nsupplied in formulating a focused search query that did not encompass\nunrelated matters. On the other hand, the Department did not indicate why it did not search the\naccount of\n23, 2022, correspondence. Similarly, the Department did not indicate why it did not use any of\n\nidentifying him as an involved party in his June\n\ndespite\n\n3 Letter from Erica Schroeder, Director of Public Information, Chicago Department of\n\nTransportation, to Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois\nAttorney General (September 1, 2022), at 1-2. \n\n4 Letter from Erica Schroeder, Director of Public Information, Chicago Department of\n\nTransportation, to Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, Office of the Illinois\n\nthe 45th Ward staff member information\nrequest when it conducted its search. \n\nprovided in response to the Department's\n\nUnder these circumstances, the Public Access Bureau is unable to conclude that\n\nthe Department responded properly to\nDepartment to conduct a new search that includes\nstaff contact information, as well as communicating with the staff members who are reasonably\nlikely to have sent or received responsive correspondence. The Department should then disclose\nany responsive records it locates or, if it locates no other records, provide a description of its\nsearch containing the information asked about in this office's July 29, 2022, inquiry letter. \n\nFOIA request. This office asks the\n\ne-mail account and 45th Ward\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n72761 f 3a search improper mun"}
{"id":990,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-04-20","case_number":null,"request_numbers":["73240"],"title":"Illinois State Police properly denied FOIA for firearms restraining order data as LEADS protected","filename":"73240, issued April 20, 2023.pdf","rel_path":null,"word_count":1373,"summary":"A reporter requested a detailed spreadsheet of firearms restraining order data from the Illinois State Police, which the agency denied citing confidentiality restrictions. The PAC concluded that the ISP properly denied the request because the data is contained within the Law Enforcement Agencies Data System (LEADS), which is exempt from disclosure under FOIA.","plain_summary":"A reporter asked the Illinois State Police for specific details about firearms restraining orders. The police denied the request, explaining that this information is stored in a restricted law enforcement database that they are legally prohibited from sharing with the public. The Attorney General's office agreed with the police, finding that the law does not allow the release of this specific data.","holding":"The Illinois State Police did not violate FOIA by denying the request for detailed firearms restraining order data because such information is protected from disclosure as LEADS data.","legal_question":"Whether the Illinois State Police properly denied a FOIA request for detailed firearms restraining order data by invoking the exemption for information prohibited from disclosure by federal or state law (LEADS data).","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois State Police","requesting_party":"Mr. Mick Dumke (ProPublica)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought a detailed spreadsheet of data regarding firearms restraining orders filed since 2019.","ocr_status":"ok","ocr_quality":95.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/73240%2C%20issued%20April%2020%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["firearms restraining order","LEADS","police records","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 20, 2023\n\nVia electronic mail\nMr. Mick Dumke\nReporter\nProPublica\nmick.dumke@propublica. org\n\nVia electronic mail\nMs. Rhiann M. Martynowski\nFOIA Unit\nIllinois State Police\n[street address redacted for site publication -- see original PDF]\nisp.foia.officer@illinois. gov\n\nRE:  FOIA Request for Review –  2022 PAC 73240;  FOIA 22-2595\n\nDear Mr. Dumke and Ms. Martynowski: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois State Police ( ISP)  did not violate FOIA by\ndenying Mr. Mick Dumke' s July 13, 2022,  FOIA request. \n\nOn that date,  Mr. Dumke,  on behalf of ProPublica,  submitted a FOIA request\n\nto ISP seeking an update to records ISP provided in response to FOIA request 21-0901. \nSpecifically,  he sought an Excel spreadsheet displaying the following data for all firearms\nrestraining orders issued or filed since January 1, 2019,  under the Firearms Restraining Order\nAct (430 ILCS 67/1, et seq. ( West 2020)): \n\nthe date or year\ncounty or court jurisdiction\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Mick Dumke\nMs. Rhiann Martynowski\nApril 20, 2023\nPage 2\n\ntype of petitioner ( family member,  law enforcement agency, \netc) \nname of petitioner if a law enforcement agency\nlength and type of order ( emergency,  6-month,  etc) \nstatus of the order ( active,  renewed,  terminated,  etc) \nage,  gender,  and race of the respondent/ recipient of the\norder[.][ 1] \n\nOn August 23, 2022,  ISP denied Mr. Dumke' s request pursuant to section 7(1)(a) 2 of FOIA, on\nthe basis that the responsive information is maintained in the Law Enforcement Agency Data\nSystem ( LEADS),  and that section 1240. 80(d) of title 20 of the Administrative Code3 prohibits\nISP from disclosing LEADS information.   ISP's denial also cited sections 7.5(v)4 and 8.55 of\nFOIA.  On August 30, 2022,  Mr. Dumke filed this Request for Review challenging ISP's\ndenial.   Mr. Dumke asserted that the responsive information does not come from the LEADS\ndatabase,  but rather from court clerks.   He noted that ISP provided similar information in\nresponse to his FOIA request in 2021. \n\nOn September 8, 2022,  this office sent a copy of the Request for Review to ISP\n\nand asked it to provide un-redacted copies of the responsive records and a detailed explanation of\nthe legal and factual bases for its assertion of the above- referenced exemptions.   On September\n19, 2022,  this office received ISP' s response.   On September 20, 2022,  this office forwarded\nISP's written answer to Mr. Dumke;  he replied the same day. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/ 1.2 (West 2020).  \n\nPolice ( July 13, 2022). \n\n1E- mail from Mick Dumke,  Reporter,  ProPublica,  to David Catlin,  FOIA Officer,  Illinois State\n\n2022, revised February 3, 2022;  102-791, effective May 13, 2022;  102- 1055,  effective June 10, 2022. \n\n25 ILCS 140/ 7(1)(a) ( West 2021 Supp.),  as amended by Public Acts 102-694, effective January 7, \n\n320 Ill. Adm. Code § 1240.80(d) (2023),  last amended at 23 Ill. Reg. 7521,  effective June 18, 1999. \n\n45 ILCS 140/ 7.5(v) (West 2021 Supp.),  as amended by Public Acts 102- 813, effective May 13, \n\n2022;  102- 1042,  effective June 3, 2022. \n\n55 ILCS 140/ 8.5 (West 2020). \n\n\fMr. Mick Dumke\nMs. Rhiann Martynowski\nApril 20, 2023\nPage 3\n\nIn its response to this office, ISP explained that court clerks provide local law\nenforcement agencies with copies of court- issued firearms restraining orders.   The local law\nenforcement agencies then enter the restraining order information into the LEADS database.   ISP\nmaintained that it does not receive firearms restraining order information directly from the\ncourts;  it accesses that information only through LEADS after it has been entered into the system\nby local law enforcement agencies,  which retain the orders themselves. \n\nSection 55 of the Firearms Restraining Order Act (430 ILCS 67/55 (West 2020)) \n\ndescribes a \"[ d] ata maintenance by law enforcement agencies\"  process that is consistent with\nISP's description.   Specifically,  section 55(a) provides: \n\nAll sheriffs shall furnish to the Illinois State Police,  daily, \n\nin the form and detail the Illinois State Police requires,  copies of\nany recorded firearms restraining orders issued by the court,  and\nany foreign orders of protection filed by the clerk of the court,  and\ntransmitted to the sheriff by the clerk of the court under Section 50. \nEach firearms restraining order shall be entered in the Law\nEnforcement Agencies Data System ( LEADS)  on the same day it\nis issued by the court.  If an emergency firearms restraining order\nwas issued in accordance with Section 35 of this Act, the order\nshall be entered in the Law Enforcement Agencies Data System\nLEADS)  as soon as possible after receipt from the clerk. \n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\"   \n\nThe Civil Administrative Code of Illinois ( Civil Code)  authorized ISP to establish\nLEADS for the purpose of \"mak[ ing]  available to other law enforcement agencies for immediate\ndissemination data that can assist appropriate agencies * * * \npurposes.\"   20 ILCS 2605/ 2605- 375( a) ( West 2021 Supp).   ISP has established an administrative\nrule implementing the Civil Code stating that \" LEADS data shall not be disseminated to any\nindividual or organization that is not legally authorized to have access to the information.\"   20\nIll. Adm.  Code § 1240. 80(d) (2023),  last amended at 23 Ill. Reg.  7521,  effective June 18, 1999. \nLEADS data,  which is prohibited from being disclosed to the public, includes information\ntransmitted through LEADS.   Better Government Association v. Zaruba, 2014 IL App (2d) \n140071, ¶ 27, 21 N.E. 3d 516, 525 ( 2014) (\" The regulations make clear that the public is not\nentitled to view or possess data that is transmitted through,  received through,  or stored in\nLEADS.\").   Mr. Dumke,  as a member of the media,  does not meet the criteria for accessing\n\njustice and related\n\nfor criminal\n\n\fr. Mick Dumke\nMs. Rhiann Martynowski\nApril 20, 2023\nPage 4\n\nLEADS set forth in section 1240. 30(c) of title 20 of the Administrative Code ( 20 Ill. Adm. Code\n1240. 30(c) (2023),  last amended at 23 Ill. Reg.  7521,  effective June 18, 1999).   \n\nIn his reply, Mr. Dumke questioned why ISP could post certain firearms\n\nrestraining order data on its website,  but could not provide similar data to him.  Section 85 of the\nFirearms Restraining Order Act requires that ISP \" shall submit a yearly report to the General\nAssembly or make available on its website the number of petitions entered into the Law\nEnforcement Agencies Data System.\"  430 ILCS 67/85 (West 2021 Supp.),  as amended by Public\nAct 102-345, effective June 1, 2022.   Accordingly,  the law authorizes ISP to disclose the number\nof petitions entered into LEADS.   It does not, however,  authorize ISP to disclose the detailed\ninformation concerning firearms restraining orders that Mr. Dumke requested. \n\nBecause ISP's only access to firearms restraining order data is through LEADS\n\nand because it is specifically prohibited from disseminating LEADS data to unauthorized parties, \nthis office concludes that ISP did not improperly deny Mr. Dumke' s request pursuant to section\n7(1)(a)  of FOIA.   \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (217)  843- 0564 or laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n73240 f 71a proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Spreadsheet of firearms restraining order data","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73240/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 20, 2023\n\nVia electronic mail\nMr. Mick Dumke\nReporter\nProPublica\nmick.dumke@propublica. org\n\nVia electronic mail\nMs. Rhiann M. Martynowski\nFOIA Unit\nIllinois State Police\n[street address redacted for site publication -- see original PDF]\nisp.foia.officer@illinois. gov\n\nRE: FOIA Request for Review – 2022 PAC 73240; FOIA 22-2595\n\nDear Mr. Dumke and Ms. Martynowski: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Illinois State Police (ISP) did not violate FOIA by\ndenying Mr. Mick Dumke's July 13, 2022, FOIA request. \n\nOn that date, Mr. Dumke, on behalf of ProPublica, submitted a FOIA request\n\nto ISP seeking an update to records ISP provided in response to FOIA request 21-0901. \nSpecifically, he sought an Excel spreadsheet displaying the following data for all firearms\nrestraining orders issued or filed since January 1, 2019, under the Firearms Restraining Order\nAct (430 ILCS 67/1, et seq. (West 2020)): \n\nthe date or year\ncounty or court jurisdiction\n\ntype of petitioner (family member, law enforcement agency, \netc) \nname of petitioner if a law enforcement agency\nlength and type of order (emergency, 6-month, etc) \nstatus of the order (active, renewed, terminated, etc) \nage, gender, and race of the respondent/ recipient of the\norder[.][ 1] \n\nOn August 23, 2022, ISP denied Mr. Dumke's request pursuant to section 7(1)(a) 2 of FOIA, on\nthe basis that the responsive information is maintained in the Law Enforcement Agency Data\nSystem (LEADS), and that section 1240. 80(d) of title 20 of the Administrative Code3 prohibits\nISP from disclosing LEADS information. ISP's denial also cited sections 7.5(v)4 and 8.55 of\nFOIA. On August 30, 2022, Mr. Dumke filed this Request for Review challenging ISP's\ndenial. Mr. Dumke asserted that the responsive information does not come from the LEADS\ndatabase, but rather from court clerks. He noted that ISP provided similar information in\nresponse to his FOIA request in 2021. \n\nOn September 8, 2022, this office sent a copy of the Request for Review to ISP\n\nand asked it to provide un-redacted copies of the responsive records and a detailed explanation of\nthe legal and factual bases for its assertion of the above- referenced exemptions. On September\n19, 2022, this office received ISP's response. On September 20, 2022, this office forwarded\nISP's written answer to Mr. Dumke; he replied the same day. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2020). \n\nPolice (July 13, 2022). \n\n1E- mail from Mick Dumke, Reporter, ProPublica, to David Catlin, FOIA Officer, Illinois State\n\n2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102- 1055, effective June 10, 2022. \n\n25 ILCS 140/ 7(1)(a) (West 2021 Supp.), as amended by Public Acts 102-694, effective January 7, \n\n320 Ill. Adm. Code § 1240.80(d) (2023), last amended at 23 Ill. Reg. 7521, effective June 18, 1999. \n\n45 ILCS 140/ 7.5(v) (West 2021 Supp.), as amended by Public Acts 102- 813, effective May 13, \n\nIn its response to this office, ISP explained that court clerks provide local law\nenforcement agencies with copies of court- issued firearms restraining orders. The local law\nenforcement agencies then enter the restraining order information into the LEADS database. ISP\nmaintained that it does not receive firearms restraining order information directly from the\ncourts; it accesses that information only through LEADS after it has been entered into the system\nby local law enforcement agencies, which retain the orders themselves. \n\nSection 55 of the Firearms Restraining Order Act (430 ILCS 67/55 (West 2020)) \n\ndescribes a \"[ d] ata maintenance by law enforcement agencies\" process that is consistent with\nISP's description. Specifically, section 55(a) provides: \n\nAll sheriffs shall furnish to the Illinois State Police, daily, \n\nin the form and detail the Illinois State Police requires, copies of\nany recorded firearms restraining orders issued by the court, and\nany foreign orders of protection filed by the clerk of the court, and\ntransmitted to the sheriff by the clerk of the court under Section 50. \nEach firearms restraining order shall be entered in the Law\nEnforcement Agencies Data System (LEADS) on the same day it\nis issued by the court. If an emergency firearms restraining order\nwas issued in accordance with Section 35 of this Act, the order\nshall be entered in the Law Enforcement Agencies Data System\nLEADS) as soon as possible after receipt from the clerk. \n\nSection 7(1)(a) of FOIA exempts from inspection and copying \"[ i]nformation\n\nspecifically prohibited from disclosure by federal or State law or rules and regulations\nimplementing federal or State law.\" \n\nThe Civil Administrative Code of Illinois (Civil Code) authorized ISP to establish\nLEADS for the purpose of \"mak[ ing] available to other law enforcement agencies for immediate\ndissemination data that can assist appropriate agencies * * * \npurposes.\" 20 ILCS 2605/ 2605- 375(a) (West 2021 Supp). ISP has established an administrative\nrule implementing the Civil Code stating that \" LEADS data shall not be disseminated to any\nindividual or organization that is not legally authorized to have access to the information.\" 20\nIll. Adm. Code § 1240. 80(d) (2023), last amended at 23 Ill. Reg. 7521, effective June 18, 1999. \nLEADS data, which is prohibited from being disclosed to the public, includes information\ntransmitted through LEADS. Better Government Association v. Zaruba, 2014 IL App (2d) \n140071, ¶ 27, 21 N.E. 3d 516, 525 (2014) (\" The regulations make clear that the public is not\nentitled to view or possess data that is transmitted through, received through, or stored in\n\nLEADS set forth in section 1240. 30(c) of title 20 of the Administrative Code (20 Ill. Adm. Code\n1240. 30(c) (2023), last amended at 23 Ill. Reg. 7521, effective June 18, 1999). \n\nIn his reply, Mr. Dumke questioned why ISP could post certain firearms\n\nrestraining order data on its website, but could not provide similar data to him. Section 85 of the\nFirearms Restraining Order Act requires that ISP \" shall submit a yearly report to the General\nAssembly or make available on its website the number of petitions entered into the Law\nEnforcement Agencies Data System.\" 430 ILCS 67/85 (West 2021 Supp.), as amended by Public\nAct 102-345, effective June 1, 2022. Accordingly, the law authorizes ISP to disclose the number\nof petitions entered into LEADS. It does not, however, authorize ISP to disclose the detailed\ninformation concerning firearms restraining orders that Mr. Dumke requested. \n\nBecause ISP's only access to firearms restraining order data is through LEADS\n\nand because it is specifically prohibited from disseminating LEADS data to unauthorized parties, \nthis office concludes that ISP did not improperly deny Mr. Dumke's request pursuant to section\n7(1)(a) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n73240 f 71a proper sa"}
{"id":991,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-10-19","case_number":null,"request_numbers":["73336"],"title":"Mahomet Township Road District properly denied repeated FOIA request by coordinated group","filename":"73336, issued October 19, 2022.pdf","rel_path":null,"word_count":985,"summary":"The requester challenged the Mahomet Township Road District's denial of a FOIA request as an unduly burdensome repeat request under section 3(g). The PAC determined that the District properly applied the repeat request exemption and noted that it lacked authority to address the requester's allegations of ethical violations.","plain_summary":"The question was whether a public body properly denied a FOIA request as an unduly burdensome repeated request under 5 ILCS 140/3(g) where the request came from one of three individuals who routinely share and coordinate FOIA requests and responses. The Public Access Bureau held that the Request for Review was unfounded, concluding that the requester and two other individuals acted collectively as a 'group' and therefore qualified as a single 'person' under 5 ILCS 140/2(b), so the public body was not required to provide records it had already furnished to another member of that group. The reasoning is that under section 3(g), a repeated request from the same 'person'—which can include a group of individuals acting together to obtain and share information—for records already provided or properly denied is deemed unduly burdensome. The decision concerned a road district's response to a request for communications and prior FOIA records, and the Bureau also declined to address alleged ethical violations by a private attorney as outside its FOIA/OMA review authority.","holding":"Individuals who coordinate and share FOIA requests and responses with one another qualify collectively as a single 'person' under 5 ILCS 140/2(b), so a public body may properly deny a request from one of them as an unduly burdensome repeated request under 5 ILCS 140/3(g) if the group already received or was properly denied the same records.","legal_question":"Whether the Mahomet Township Road District properly denied a FOIA request as an unduly burdensome repeat request under 5 ILCS 140/3(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(m)","3(g)"],"public_body":"Mahomet Township Road District","requesting_party":"Requester (name redacted in source document)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought various communications and documents related to legal invoices and attorney summaries.","ocr_status":"ok","ocr_quality":96.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Repeated-requests/73336%2C%20issued%20October%2019%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeat request","unduly burdensome","FOIA denial","legal invoices"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 19,  2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:   FOIA Request for Review –  2022 PAC 73336\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)).  For the reasons set forth below, the\nPublic Access Bureau concludes that this Request for Review is unfounded. \n\nOn August 19,  2022,  you submitted a FOIA request to the Mahomet Township\n\nRoad District (District) requesting \"any and all communications, documents, letters, text\nmessages,  and emails documents,  of any and all descriptions,  related to Sorling Northrup and the\nattorney summary of Gregory Moredock dated July 18, 2022 as invoice #208603.\" 1 After\nextending the time to respond by five business days,  on September 2, 2022,  the District provided\nresponsive communications between the District and its attorney but redacted portions under\nsection 7(1)( m) of FOIA ( 5 ILCS 140/ 7(1)( m) ( West 2021 Supp.),  as amended by Public Acts\n102-694, effective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; \n102- 1055,  effective June 10, 2022).   The District denied the remaining responsive records,  which\nconsisted of FOIA responses and records previously sent to you, Mr. Chad Coit, or Ms. Lisa\nSlade,  as an unduly burdensome repeat request pursuant\n140/3(g) (West 2020)).  Your Request for Review contests the District's denial based upon\nsection 3(g) of FOIA because Mr. Coit,  Ms. Slade,  and you are separate individuals.   Your\nRequest for Review also asks the Public Access Bureau to review alleged ethical violations.  \n\nto section 3(g) of FOIA ( 5 ILCS\n\n1Letter from\n\nto Mahomet Township Road District (August 19, 2022).    \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529 -6400 • TTY: (877) 675-9339 • Fax: (618) 529-6416\n\n\fOctober 19, 2022\nPage 2\n\nAs an initial matter,  you have asked this office to review alleged ethical violations\n\nby a private attorney, which are not subject to review by the Public Access Counselor.  See 15\nILCS 205/ 7(c) ( West 2020) ( limiting the Public Access Counselor' s authority to reviewing\nalleged violations of FOIA and the Open Meetings Act (OMA) (5 ILCS 120/1 et seq. (West\n2020)).   Therefore,  this office will take no further action regarding that allegation.   \n\nSection 3(g) of FOIA provides,  in pertinent part that \"[ r]epeated requests from the\nsame person for the same records that are unchanged or identical to records previously provided\nor properly denied under this Act shall be deemed unduly burdensome under this provision.\"  \nEmphasis added.)  Under the plain language of section 3(g), a request is an unduly burdensome\nrepeated request if a public body has previously provided the same person with the responsive\nrecords or properly denied a prior, unchanged request.  Section 2(b) of FOIA (5 ILCS 140/2(b) \nWest 2020))  defines \" person\"  as \" any individual,  corporation,  partnership,  firm, organization\nor association, acting individually or as a group.\"  (Emphasis added.)  FOIA does not define\ngroup,\"  but Merriam- Webster' s Dictionary defines \" group\"  as,  among other things, \" a number\nof individuals assembled together or having some unifying relationship\"  such as a study group.2\nis as an unduly\nThus,  in order for this office to determine whether your August 19, 2022,  request\nburdensome repeated request, it is necessary to assess whether you, Mr. Coit, and Ms. Slade\nwere acting as a group,  and therefore,  qualify collectively as a person under the statute.   \n\nIn your Request for Review,  you stated that you prepared your August 19,  2022, \nFOIA Request to the District based on the content of a response that Mahomet Township sent to\nMs. Slade.   On September 14,  2022,  an Assistant Attorney General ( AAG)  in the Public Access\nBureau spoke by telephone with you.3 The AAG asked you how you obtained the records sent to\nMs. Slade.   You responded that she shared it with you.   You also informed the AAG that there\nare three people that share FOIA requests and responses (yourself, Mr. Coit, and Ms. Slade) and\nstated the three of you discuss which records to FOIA.   Based upon that information,  it appears\nthat you, Mr. Coit, and Ms. Slade act as a group for the purpose of obtaining and sharing\ninformation from the District,  and possibly other public bodies.   Therefore,  you,  Mr. Coit,  and\nMs. Slade qualify collectively as a \" person\"  under the definition of that term in FOIA.  FOIA\ndoes not require the District to provide you with additional copies of records that it previously\nprovided to another member of your group.  Thus, you have provided no information to this\noffice that the District improperly designated your August 19, 2022,  FOIA request as a repeated\nrequest under section 3(g) of FOIA.   \n\n2Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/group (last\n\nvisited September 19, 2022).  \n\n3During that conversation, you confirmed to the AAG that your Request for Review (1) contested\nthe District's designation of you, Mr. Coit, and Ms. Slade as a group under FOIA; and (2) alleged ethical violations.  \n\n\fOctober 19, 2022\nPage 3\n\nAccordingly,  this office has determined that this matter is unfounded,  and this file\n\nis closed.  If you have any questions, please contact me at 312-814-5201 or at the Chicago\naddress listed on the bottom of the first page of this letter.  \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n73336 f unf mun\n\ncc: \n\ncc: \n\nVia electronic mail\nFOIA Officer\nMahomet Township Road District\n2270 CR 0E\nMahomet, Illinois 61853\nmahtwp1@yahoo. com\n\nVia electronic mail\nMr. Gregory E. Moredock\nSorling Northrup Attorneys\nOne North Old State Capitol Plaza\nSuite 200\nP.O. Box 5131\nSpringfield,  Illinois 62705\ngemoredock@sorlinglaw.com\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Legal invoices and attorney summaries","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73336/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 19, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2022 PAC 73336\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that this Request for Review is unfounded. \n\nOn August 19, 2022, you submitted a FOIA request to the Mahomet Township\n\nRoad District (District) requesting \"any and all communications, documents, letters, text\nmessages, and emails documents, of any and all descriptions, related to Sorling Northrup and the\nattorney summary of Gregory Moredock dated July 18, 2022 as invoice #208603.\" 1 After\nextending the time to respond by five business days, on September 2, 2022, the District provided\nresponsive communications between the District and its attorney but redacted portions under\nsection 7(1)(m) of FOIA (5 ILCS 140/ 7(1)(m) (West 2021 Supp.), as amended by Public Acts\n102-694, effective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; \n102- 1055, effective June 10, 2022). The District denied the remaining responsive records, which\nconsisted of FOIA responses and records previously sent to you, Mr. Chad Coit, or Ms. Lisa\nSlade, as an unduly burdensome repeat request pursuant\n140/3(g) (West 2020)). Your Request for Review contests the District's denial based upon\nsection 3(g) of FOIA because Mr. Coit, Ms. Slade, and you are separate individuals. Your\nRequest for Review also asks the Public Access Bureau to review alleged ethical violations. \n\nto section 3(g) of FOIA (5 ILCS\n\n1 Letter from\n\nto Mahomet Township Road District (August 19, 2022). \n\nAs an initial matter, you have asked this office to review alleged ethical violations\n\nby a private attorney, which are not subject to review by the Public Access Counselor. See 15\nILCS 205/ 7(c) (West 2020) (limiting the Public Access Counselor's authority to reviewing\nalleged violations of FOIA and the Open Meetings Act (OMA) (5 ILCS 120/1 et seq. (West\n2020)). Therefore, this office will take no further action regarding that allegation. \n\nSection 3(g) of FOIA provides, in pertinent part that \"[ r]epeated requests from the\nsame person for the same records that are unchanged or identical to records previously provided\nor properly denied under this Act shall be deemed unduly burdensome under this provision.\" \nEmphasis added.) Under the plain language of section 3(g), a request is an unduly burdensome\nrepeated request if a public body has previously provided the same person with the responsive\nrecords or properly denied a prior, unchanged request. Section 2(b) of FOIA (5 ILCS 140/2(b) \nWest 2020)) defines \" person\" as \" any individual, corporation, partnership, firm, organization\nor association, acting individually or as a group.\" (Emphasis added.) FOIA does not define\ngroup,\" but Merriam- Webster's Dictionary defines \" group\" as, among other things, \" a number\nof individuals assembled together or having some unifying relationship\" such as a study group.2\nis as an unduly\nThus, in order for this office to determine whether your August 19, 2022, request\nburdensome repeated request, it is necessary to assess whether you, Mr. Coit, and Ms. Slade\nwere acting as a group, and therefore, qualify collectively as a person under the statute. \n\nIn your Request for Review, you stated that you prepared your August 19, 2022, \nFOIA Request to the District based on the content of a response that Mahomet Township sent to\nMs. Slade. On September 14, 2022, an Assistant Attorney General (AAG) in the Public Access\nBureau spoke by telephone with you.3 The AAG asked you how you obtained the records sent to\nMs. Slade. You responded that she shared it with you. You also informed the AAG that there\nare three people that share FOIA requests and responses (yourself, Mr. Coit, and Ms. Slade) and\nstated the three of you discuss which records to FOIA. Based upon that information, it appears\nthat you, Mr. Coit, and Ms. Slade act as a group for the purpose of obtaining and sharing\ninformation from the District, and possibly other public bodies. Therefore, you, Mr. Coit, and\nMs. Slade qualify collectively as a \" person\" under the definition of that term in FOIA. FOIA\ndoes not require the District to provide you with additional copies of records that it previously\nprovided to another member of your group. Thus, you have provided no information to this\noffice that the District improperly designated your August 19, 2022, FOIA request as a repeated\nrequest under section 3(g) of FOIA. \n\n2 Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/group (last\n\nvisited September 19, 2022). \n\n3 During that conversation, you confirmed to the AAG that your Request for Review (1) contested\nthe District's designation of you, Mr. Coit, and Ms. Slade as a group under FOIA; and (2) alleged ethical violations. \n\nAccordingly, this office has determined that this matter is unfounded, and this file\n\nis closed. If you have any questions, please contact me at 312-814-5201 or at the Chicago\naddress listed on the bottom of the first page of this letter. \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n73336 f unf mun\n\ncc: \n\ncc: \n\nVia electronic mail\nFOIA Officer\nMahomet Township Road District\n2270 CR 0E\nMahomet, Illinois 61853\nmahtwp1@yahoo. com\n\nVia electronic mail\nMr. Gregory E. Moredock\nSorling Northrup Attorneys\nOne North Old State Capitol Plaza\nSuite 200\nP.O. Box 5131\nSpringfield, Illinois 62705\ngemoredock@sorlinglaw.com"}
{"id":992,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-02","case_number":null,"request_numbers":["73487"],"title":"Village of Caseyville improperly withheld employee emails under Section 7(1)","filename":"73487, issued May 2, 2023.pdf","rel_path":null,"word_count":1428,"summary":"The requester sought emails from two Village of Caseyville officials, and the PAC determined the Village failed to meet its burden of proving that the requested records were exempt from disclosure.","plain_summary":"A resident requested emails from two Village of Caseyville employees, but the Village failed to provide them, claiming they were exempt. The Attorney General's office reviewed the case and found that the Village did not provide enough evidence to justify keeping the emails secret. Consequently, the PAC directed the Village to release the requested records to the requester.","holding":"The Village of Caseyville improperly withheld the requested emails by failing to demonstrate that they were exempt from disclosure under FOIA.","legal_question":"Did the Village of Caseyville meet its burden of proof under section 7 of FOIA to withhold responsive emails?","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)"],"public_body":"Village of Caseyville","requesting_party":"EF","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"email records","subject_description":"The requester sought all sent, received, and deleted emails for the Village Superintendent and Zoning Administrator over a one-month period.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_c/73487%2C%20issued%20May%202%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["email records","burden of proof","FOIA request","Village of Caseyville"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 2, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Doug Stewart\n\nAttorney, Stewart Law Group\nP.O. Box 4291\n\n[street address redacted for site publication -- see original PDF]\ndstewart@stewartlawgroup.co\n\nRE: FOIA Request for Review — 2022 PAC 73487\n\nDear EF and Mr. Stewart:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2020)).\n\nOn June 27, 2022, submitted a FOIA request to the Village of\nCaseyville (Village) seeking copies of \"[all] sent, received[,] and deleted emails for\nSuperintendent, Brian Rader and Zoning Administrator, Phil Little for the time period of May\n15, 2022, to June 15, 2022.\"! On July 5, 2022, the Village informed [IF that it classified\nher FOIA request as voluminous and extended its time to respond by ten business days. On\nAugust 4, 2022, EF contacted the Village's counsel, Doug Stewart, regarding the status of\nthe Village's response to her FOIA request. In particular, stated that Mr. Stewart\nreported that the Village \"will be forwarding [the requested e-mails] per our agreement at 150 e-\nmails per week for the next weeks, and that [she] would start receiving them this week.\"? On\n\n'FOIA request submitted by J to [Village of Caseyville] (June 27, 2022).\n°E-mail from EE to Doug [Stewart] (August 4, 2022).\n500 South Second Street, Springfield, Illinois 62701 = (217) 782-1090 « TTY: (877) 844-5461 * Fax: (217) 782-7046\n\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMr. Doug Stewart\nMay 2, 2023\nPage 2\n\nAugust 8, 2022, J again reached out to Mr. Stewart regarding the status of the Village's\nresponse.\n\nOn August 22, 2022, EF submitted a preceding Request for Review, 2022\n\nPAC 73132, alleging that the Village did not respond to her FOIA request. On August 26, 2022,\nthis office sent a copy of the Request for Review to the Village and asked it to respond to J\n\nand provide a copy of its response to this office. On September 8, 2022, the Village\nprovided {MF with records.* Because that response resolved {J complaint that the\nVillage did not respond to her request, this office closed 2022 PAC 73132. That same day,\nHEE submitted a new Request for Review, 2022 PAC 73487, contesting the completeness of the\nVillage's response. In particular, MM alleged that the Village's response pertained to\nanother FOIA request, and she never received any of the requested e-mails.\n\nOn September 25, 2022, an Assistant Attorney General (AAG) in the Public\nAccess Bureau e-mailed Mr. Stewart a copy of the Request for Review and asked him to address\nthis discrepancy. The AAG also asked Mr. Stewart to provide a copy of the Village's response to\nal June 27, 2022, FOIA request. Mr. Stewart did not reply to the AAG's e-mail.\n\nTherefore, on October 17, 2022, this office sent a copy of the Request for Review\nto the Village and asked it to provide a formal written response addressing the allegations in the\nRequest for Review. This office also asked the Village to include in its response a detailed\ndescription of the measures taken to search for the records sought in her FOIA request.\nOn October 27, 2022, Mr. Stewart informed this office a that the responsive e-mails\nwere ready to be picked up at Village Hall. Mr. Stewart stated, however, that the provided\nrecords \"includes all emails (some with redactions) except those exempt from disclosure\npursuant to the act.\"* He further stated: \"By providing the requested responsive documents, I\nbelieve this matter is resolved.\"* In an e-mailed reply to Mr. Stewart, J asserted that the\nmatter was not resolved because the Village indicated it had withheld some e-mails.°\n\nOn December 7, 2022, the AAG spoke with J to discuss if she ever\nreceived a copy of the responsive records. [NP explained that she did not retrieve these\nrecords from Village Hall because she believed her Request for Review would be closed if she\n\n‘The Village redacted some information pursuant to section 7(1)(m) of FOIA (5 ILCS 140/7(1)(m)\n(West 2020), as amended by Public Act 102-038, effective June 25, 2021).\n\n‘E-mail from Doug Stewart, Stewart Law Group, to]end Christina Lucente-\nMcCullough] (October 28, 2023).\n\n5E-mail from Doug Stewart, Stewart Law Group, to [Jan Christina Lucente-\nMcCullough] (October 28, 2023).\n\n°E-mail from to Doug Stewart (October 28, 2022).\n\nMr. Doug Stewart\nMay 2, 2023\nPage 3\n\ndid so when she still challenged the withholding of any e-mails. On that same date, the AAG\nasked Mr. Stewart to provide this office with redacted and unredacted copies of the responsive\nrecords, as well as the Village's written response to this office's October 17, 2022, letter.\n\nOn January 3, 2023, the AAG again e-mailed Mr. Stewart for an update on the\nVillage's formal response. On January 4, 2023, Mr. Stewart informed the AAG that she should\nreceive the Village's response by January 6, 2023. Having received no response by that date, the\nAAG left voicemails for Mr. Stewart on January 9, 2023, and January 18, 2023, once more\ninquiring about the Village's response; he did not call back. This office also sent another letter to\nthe Village on January 31, 2023, seeking the same information.\n\nTo date, this office has received from the Village neither the requested records nor\nany other communication about this matter.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,\n407 (1997).\n\nFurther, the procedures for a public body to respond to the Public Access\nCounselor in connection with a Request for Review of the denial of a FOIA request are clear.\nSection 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020)) unambiguously provides that \"[w]ithin\n7 business days after receipt of the request for review, the public body shall provide copies of\nrecords requested and shall otherwise fully cooperate with the Public Access Counselor.\"\n\nIt is undisputed that the Village did not cooperate with the Public Access Bureau\nas expressly required by section 9.5(c) of FOIA. The Village has provided this office with\nneither copies of the responsive records nor a written explanation supporting its partial denial of\nLn request. Indeed, the Village failed to identify in its October 27, 2022, e-mail to\nHE the specific exemptions that applied to the redacted or withheld e-mails and explain the\nfactual bases for the applicability of those exemptions, as required by section 9(b) of FOIA (5\nILCS 140/9(b) (West 2020)) (\"When a request for public records is denied on the grounds that\nthe records are exempt under Section 7 of this Act, the notice of denial shall specify the\nexemption claimed to authorize the denial and the specific reasons for the denial, including a\ndetailed factual basis and a citation to supporting legal authority.\"). Without any of the records\nto review or an explanation for the partial denial, this office concludes that the Village did not\n\n\nMr. Doug Stewart\nMay 2, 2023\nPage 4\n\nmeet its burden of demonstrating by clear and convincing evidence that any of the responsive e-\nmails are exempt from disclosure pursuant to an exemption under section 7 of FOIA.”\nAccordingly, this office requests that the Village provide [J with copies of all the e-mails\nresponsive to her June 27, 2022, request.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at c.lucentemecullough@ilag.gov or at the Chicago address listed on the\nbottom of the first page of this letter.\n\nVery truly yours,\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n73487 f95c improper mun\n\nte: Via electronic mail\nThe Honorable Cynthia Miller\nVillage Clerk\nVillage of Caseyville\n909 South Main Street\nCaseyville, Illinois 62232\ncmiller@caseyville.org\n\n75 ILCS 140/7 (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-\n558, effective August 20, 2021; 102-694, effective January 1, 2022; 102-791, effective May 13, 2022.\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A village superintendent's and zoning administrator's emails","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73487/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 2, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Doug Stewart\n\nAttorney, Stewart Law Group\nP.O. Box 4291\n\n[street address redacted for site publication -- see original PDF]\ndstewart@stewartlawgroup.co\n\nRE: FOIA Request for Review — 2022 PAC 73487\n\nDear EF and Mr. Stewart:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(£) (West 2020)).\n\nOn June 27, 2022, submitted a FOIA request to the Village of\nCaseyville (Village) seeking copies of \"[all] sent, received[,] and deleted emails for\nSuperintendent, Brian Rader and Zoning Administrator, Phil Little for the time period of May\n15, 2022, to June 15, 2022.\"! On July 5, 2022, the Village informed [IF that it classified\nher FOIA request as voluminous and extended its time to respond by ten business days. On\nAugust 4, 2022, EF contacted the Village's counsel, Doug Stewart, regarding the status of\nthe Village's response to her FOIA request. In particular, stated that Mr. Stewart\nreported that the Village \"will be forwarding [the requested e-mails] per our agreement at 150 e-\nmails per week for the next weeks, and that [she] would start receiving them this week.\"? On\n\nAugust 8, 2022, J again reached out to Mr. Stewart regarding the status of the Village's\nresponse.\n\nOn August 22, 2022, EF submitted a preceding Request for Review, 2022\n\nPAC 73132, alleging that the Village did not respond to her FOIA request. On August 26, 2022,\nthis office sent a copy of the Request for Review to the Village and asked it to respond to J\n\nand provide a copy of its response to this office. On September 8, 2022, the Village\nprovided {MF with records.* Because that response resolved {J complaint that the\nVillage did not respond to her request, this office closed 2022 PAC 73132. That same day,\nHEE submitted a new Request for Review, 2022 PAC 73487, contesting the completeness of the\nVillage's response. In particular, MM alleged that the Village's response pertained to\nanother FOIA request, and she never received any of the requested e-mails.\n\nOn September 25, 2022, an Assistant Attorney General (AAG) in the Public\nAccess Bureau e-mailed Mr. Stewart a copy of the Request for Review and asked him to address\nthis discrepancy. The AAG also asked Mr. Stewart to provide a copy of the Village's response to\nal June 27, 2022, FOIA request. Mr. Stewart did not reply to the AAG's e-mail.\n\nTherefore, on October 17, 2022, this office sent a copy of the Request for Review\nto the Village and asked it to provide a formal written response addressing the allegations in the\nRequest for Review. This office also asked the Village to include in its response a detailed\ndescription of the measures taken to search for the records sought in her FOIA request.\nOn October 27, 2022, Mr. Stewart informed this office a that the responsive e-mails\nwere ready to be picked up at Village Hall. Mr. Stewart stated, however, that the provided\nrecords \"includes all emails (some with redactions) except those exempt from disclosure\npursuant to the act.\"* He further stated: \"By providing the requested responsive documents, I\nbelieve this matter is resolved.\"* In an e-mailed reply to Mr. Stewart, J asserted that the\nmatter was not resolved because the Village indicated it had withheld some e-mails.°\n\nOn December 7, 2022, the AAG spoke with J to discuss if she ever\nreceived a copy of the responsive records. [NP explained that she did not retrieve these\nrecords from Village Hall because she believed her Request for Review would be closed if she\n\n‘The Village redacted some information pursuant to section 7(1)(m) of FOIA (5 ILCS 140/7(1)(m)\n(West 2020), as amended by Public Act 102-038, effective June 25, 2021).\n\ndid so when she still challenged the withholding of any e-mails. On that same date, the AAG\nasked Mr. Stewart to provide this office with redacted and unredacted copies of the responsive\nrecords, as well as the Village's written response to this office's October 17, 2022, letter.\n\nOn January 3, 2023, the AAG again e-mailed Mr. Stewart for an update on the\nVillage's formal response. On January 4, 2023, Mr. Stewart informed the AAG that she should\nreceive the Village's response by January 6, 2023. Having received no response by that date, the\nAAG left voicemails for Mr. Stewart on January 9, 2023, and January 18, 2023, once more\ninquiring about the Village's response; he did not call back. This office also sent another letter to\nthe Village on January 31, 2023, seeking the same information.\n\nTo date, this office has received from the Village neither the requested records nor\nany other communication about this matter.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2020); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \"has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401,\n407 (1997).\n\nFurther, the procedures for a public body to respond to the Public Access\nCounselor in connection with a Request for Review of the denial of a FOIA request are clear.\nSection 9.5(c) of FOIA (5 ILCS 140/9.5(c) (West 2020)) unambiguously provides that \"[w]ithin\n7 business days after receipt of the request for review, the public body shall provide copies of\nrecords requested and shall otherwise fully cooperate with the Public Access Counselor.\"\n\nIt is undisputed that the Village did not cooperate with the Public Access Bureau\nas expressly required by section 9.5(c) of FOIA. The Village has provided this office with\nneither copies of the responsive records nor a written explanation supporting its partial denial of\nLn request. Indeed, the Village failed to identify in its October 27, 2022, e-mail to\nHE the specific exemptions that applied to the redacted or withheld e-mails and explain the\nfactual bases for the applicability of those exemptions, as required by section 9(b) of FOIA (5\nILCS 140/9(b) (West 2020)) (\"When a request for public records is denied on the grounds that\nthe records are exempt under Section 7 of this Act, the notice of denial shall specify the\nexemption claimed to authorize the denial and the specific reasons for the denial, including a\ndetailed factual basis and a citation to supporting legal authority.\"). Without any of the records\nto review or an explanation for the partial denial, this office concludes that the Village did not\n\nmeet its burden of demonstrating by clear and convincing evidence that any of the responsive e-\nmails are exempt from disclosure pursuant to an exemption under section 7 of FOIA.”\nAccordingly, this office requests that the Village provide [J with copies of all the e-mails\nresponsive to her June 27, 2022, request.\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at c.lucentemecullough@ilag.gov or at the Chicago address listed on the\nbottom of the first page of this letter.\n\nVery truly yours,\n\nCHRISTINA M. LUCENTE-MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n73487 f95c improper mun\n\nte: Via electronic mail\nThe Honorable Cynthia Miller\nVillage Clerk\nVillage of Caseyville\n909 South Main Street\nCaseyville, Illinois 62232\ncmiller@caseyville.org\n\n75 ILCS 140/7 (West 2020), as amended by Public Acts 102-038, effective June 25, 2021; 102-\n558, effective August 20, 2021; 102-694, effective January 1, 2022; 102-791, effective May 13, 2022."}
{"id":993,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-31","case_number":null,"request_numbers":["73556"],"title":"Hunt Lima Drainage District improperly withheld maintenance assessment rolls under 7(1)(c)","filename":"73556, issued July 31, 2023.pdf","rel_path":null,"word_count":1667,"summary":"The requester sought annual maintenance assessment rolls and collector's books from the Hunt Lima Drainage District, which the District denied citing privacy exemptions. The PAC determined that the District failed to demonstrate that the requested financial records were exempt from disclosure.","plain_summary":"A citizen requested financial records from the Hunt Lima Drainage District regarding maintenance taxes, but the District refused, citing privacy concerns. The Illinois Attorney General's Public Access Bureau reviewed the records and determined that the District improperly withheld the annual maintenance assessment rolls because they relate to public funds, not private personal income. However, the District may redact home addresses of individual property owners before releasing the records, and it must conduct a new search for any additional responsive records, such as collector's books, before issuing a supplemental response.","holding":"The Hunt Lima Drainage District improperly withheld the requested maintenance assessment rolls, but may redact home addresses of individual property owners and must conduct a new search for collector's books before releasing records.","legal_question":"Whether the Hunt Lima Drainage District properly invoked the FOIA exemption for private personal information to withhold maintenance assessment rolls and collector's books.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"Hunt Lima Drainage District","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request concerned the disclosure of annual maintenance assessment rolls and collector's books maintained by a drainage district.","ocr_status":"ok","ocr_quality":94.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2.5/73556%2C%20issued%20July%2031%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["drainage district","assessment rolls","privacy exemption","public funds","tax records"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 31, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Jon Hofmeister\nHunt Lima Drainage District\nBoard of Commissioners\n\n705 Lafayette Street\n\nWarsaw, Illinois 62379\njonhof&8@gmail.com\n\nRE: FOIA Request for Review — 2022 PAC 73556\n\nDear and Mr. Hofmeister:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Hunt Lima Drainage District (District) improperly\nwithheld in their entireties records responsive to I February 22, 2022, FOIA\nrequest.\n\nOn that date, (J submitted a FOIA request to the District seeking, in\nrelevant part, copies of the annual maintenance assessment rolls and current collector's books for\n2020 and 2021. In an undated response that received on September 8, 2022, the\nDistrict asserted that \"these documents contain private personal information that is exempt[.]\"!\nOn September 18, 2022, the Public Access Bureau received this Request for Review contesting\nthe District's denial.\n\n‘Letter from Hunt Lima Drainage District Commissioners to [J (undated).\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 2\n\nThis office forwarded a copy of the Request for Review to the District and asked\nit to provide unredacted copies of the requested records for our confidential review, together with\na detailed written explanation of the factual and legal bases for the applicability of any asserted\nexemptions. On October 26, 2022, the District Board's Chairman Jonathan Hofmeister provided\nthis office with unredacted copies of a representative sampling of 2022 annual maintenance\nassessments for District landowners. Mr. Hofmeister also stated:\n\nI spoke with the other two commissioners about sending\nour own tax bills to represent the typical form that is sent to\nlandowners. There are four pages total.\n\nI also trust that the rules the district followed to deny the\nrelease of these documents to Mp will be provided by\n[District Legal Counsel John Hauk]. We still maintain that the\nnames and addresses of the landowners should be considered\nexempt from FOIA requests.”\n\nIn a November 2, 2022, response to this office from the District's legal counsel, the District\nasserted that \"the assessment 'bills' are exempted from disclosure pursuant to 5 ILCS 140/7 as\nthey contain private information, such as home addresses and personal financial information,\nwhich is included in the definition of 'private information’ found in 5 ILCS 140/ 2(c-5).\"*> This\noffice forwarded a copy of the District's response to [; on November 15, 2022, she\nreplied, asserting that the requested records constituted records of public funds and should be\nsubject to disclosure under FOIA.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that redacts a\nrecord \"has the burden of proving by clear and convincing evidence\" that the redacted\ninformation is exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from\ndisclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 407 (1997).\n\n?E-mail from Jonathan Hofmeister to Christopher Boggs (October 26, 2022).\n\nE-mail from John N. Hauk, Attorney, Hauk & Owens, LLC, to [Christopher] Boggs (November\n2, 2022).\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 3\n\nBased on the District's claim that information within the requested records\nconstituted \"private\" information, the District appears to assert that all portions of the records are\nexempt from disclosure under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2022)). That\nexemption applies to \"[p]rivate information, unless disclosure is required by another provision of\nthis Act, a State or federal law or a court order.\" Section 2(c-5) of FOIA (5 ILCS 140/2(c-5)\n(West 2022)) defines \"private information\" as:\n\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\n\nFurthermore, section 2.5 of FOIA (5 ILCS 140/2.5 (West 2022)) provides that \"[a}ll records\nrelating to the obligation, receipt, and use of public funds of the State, units of local government,\nand school districts are public records subject to inspection and copying by the public.\" This\noffice has reviewed the records at issue, which consist of the 2022 annual assessments or\n\"maintenance tax\" levied by the District on landowners within the District. Thus, the requested\nrecords clearly relate to the District's receipt of public funds.\n\nIn its responses to this office, the District's Board and legal counsel contended\nthat landowners! names and addresses, together with their personal financial information, are\nexempt from disclosure. In Binding Opinion 18-002, Attorney General Madigan determined that\na customer name listed on a water bill issued by a public body did not fall within the definition\nof \"private information\" in section 2(c-5), and therefore was not exempt from disclosure pursuant\nto section 7(1)(b) of FOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 18-002, issued February 14, 2018,\nat 5. In that opinion, Attorney General Madigan looked to the plain language of sections 2(c-5)\nand 7(1)(b), and relied on a prior binding opinion which held that \"names are not specifically\nincluded in the definition of private information,’ and a name is not ordinarily sufficiently unique\nto identify a specific individual because many persons have the same name.\" II]. Att'y Gen. Pub.\nAcc. Op. No. 18-002, issued February 14, 2018, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No.\n12-003, issued January 18, 2012, at 7). Attorney General Madigan also determined in that\nopinion that, because bills for water services are expressly subject to disclosure under section\n2.5, the customer names and service addresses on those bills were not \"personal financial\ninformation\" as that phrase is used in section 2(c-5).\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 4\n\nLikewise, the annual assessments directly relate to the District's receipt of public\nfunds to be used for levee maintenance. Such records are expressly subject to disclosure under\nsection 2.5. Further, the District has provided no explanation concerning how the amount owed\nby each landowner constitutes \"personal financial information\" under section 2(c-5) of FOIA.\nBecause the annual assessments in question reflect the anticipated receipt of funds by the District\nand because the District has not demonstrated that section 7(1)(b) is applicable to the requested\nrecords, this office concludes that the District improperly withheld the annual assessments in\ntheir entireties.1 In accordance with that determination, this office requests that the District\nprovide Ms. Roskamp with copies of the records at issue, including the responsive annual\nassessments for other District landowners. \"Home\" addresses of property owners may be\nredacted pursuant to section 7(1)(b) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 51203, issued\nAugust 2, 2018 (home address of utility bill that displays name of utility customer exempt as\nprivate information). Addresses of properties owned by companies and/or incorporated farming\noperations, however, are business addresses that are not within the scope of the exemption. Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 48986, issued July 1, 2020, at 4 (information that identifies\nbusinesses rather than individuals not exempt from disclosure under section 7(1)(b) of FOIA).\n\nFinally, it is unclear, based on the District's response to this office, the extent to\nwhich additional responsive financial records exist. For example, although the District provided\nthis office with a representative sampling of the requested annual assessments, it is unclear\nwhether the District maintains \"collector's books\" as identified in JJ request.°\nAccordingly, this office requests that the District conduct a new search for records and issue a\nsupplemental response to {. cither disclosing copies of the non-exempt portions of\nthe records it locates or, if no responsive records are located, describing the specific measures\nthat were taken to locate records.\n\n4In Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (Ist) 181115, 147 N.E.3d 873\n(2019), the Illinois Appellate Court held that names may be withheld under section 7(1)(b) when disclosure could be\nmatched to information posted on a State agency's website about the income earned by students and spouses or\nparents of students who received or applied for financial aid grants. The court explained that \"the context of the\ninformation disclosure is significant[,]\" and that the names were exempt under section 7(1)(b) because they would\ninvade those individuals' privacy in light of the \"detailed personal income information\" posted on the agency's\nwebsite. Timpone, 2019 IL App (Ist) 181115, 4940-41, 147 N.E.3d at 887. Because that personal income\ninformation did not document the receipt or expenditure of public funds, it is readily distinguishable from the\nrecords about the District's assessment of maintenance taxes at issue in this matter.\n\n*For example, numerous references to \"collector's books\" throughout the Illinois Drainage Code\n(70 ILCS 605// et seg. (West 2022)) appear to indicate that those records are customarily maintained at the county\nlevel.\n\nThe Honorable Jon Hofmeister\nJuly 31, 2023\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 785-7438.\n\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Counselor\nPublic Access Bureau\n\n73556 f 71b proper improper reg spd\n\ncc: Via electronic mail\nMr. John N. Hauk\nAttorney\nHauk & Owens, LLC\n811 Maine Street\nQuincy, Illinois 62301\njhauk@haukandowens.com\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A drainage district's maintenance assessment rolls and collector's books","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73556/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nJuly 31, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nThe Honorable Jon Hofmeister\nHunt Lima Drainage District\nBoard of Commissioners\n\n705 Lafayette Street\n\nWarsaw, Illinois 62379\njonhof&8@gmail.com\n\nRE: FOIA Request for Review — 2022 PAC 73556\n\nDear and Mr. Hofmeister:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Hunt Lima Drainage District (District) improperly\nwithheld in their entireties records responsive to I February 22, 2022, FOIA\nrequest.\n\nOn that date, (J submitted a FOIA request to the District seeking, in\nrelevant part, copies of the annual maintenance assessment rolls and current collector's books for\n2020 and 2021. In an undated response that received on September 8, 2022, the\nDistrict asserted that \"these documents contain private personal information that is exempt[.]\"!\nOn September 18, 2022, the Public Access Bureau received this Request for Review contesting\n\nThis office forwarded a copy of the Request for Review to the District and asked\nit to provide unredacted copies of the requested records for our confidential review, together with\na detailed written explanation of the factual and legal bases for the applicability of any asserted\nexemptions. On October 26, 2022, the District Board's Chairman Jonathan Hofmeister provided\nthis office with unredacted copies of a representative sampling of 2022 annual maintenance\nassessments for District landowners. Mr. Hofmeister also stated:\n\nI spoke with the other two commissioners about sending\nour own tax bills to represent the typical form that is sent to\nlandowners. There are four pages total.\n\nI also trust that the rules the district followed to deny the\nrelease of these documents to Mp will be provided by\n[District Legal Counsel John Hauk]. We still maintain that the\nnames and addresses of the landowners should be considered\nexempt from FOIA requests.”\n\nIn a November 2, 2022, response to this office from the District's legal counsel, the District\nasserted that \"the assessment 'bills' are exempted from disclosure pursuant to 5 ILCS 140/7 as\nthey contain private information, such as home addresses and personal financial information,\nwhich is included in the definition of 'private information’ found in 5 ILCS 140/ 2(c-5).\"*> This\noffice forwarded a copy of the District's response to [; on November 15, 2022, she\nreplied, asserting that the requested records constituted records of public funds and should be\nsubject to disclosure under FOIA.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that redacts a\nrecord \"has the burden of proving by clear and convincing evidence\" that the redacted\ninformation is exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from\n\nBased on the District's claim that information within the requested records\nconstituted \"private\" information, the District appears to assert that all portions of the records are\nexempt from disclosure under section 7(1)(b) of FOIA (5 ILCS 140/7(1)(b) (West 2022)). That\nexemption applies to \"[p]rivate information, unless disclosure is required by another provision of\nthis Act, a State or federal law or a court order.\" Section 2(c-5) of FOIA (5 ILCS 140/2(c-5)\n(West 2022)) defines \"private information\" as:\n\nunique identifiers, including a person's social security number,\ndriver's license number, employee identification number, biometric\nidentifiers, personal financial information, passwords or other\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal license plates, except as\notherwise provided by law or when compiled without possibility of\nattribution to any person. (Emphasis added.)\n\nFurthermore, section 2.5 of FOIA (5 ILCS 140/2.5 (West 2022)) provides that \"[a}ll records\nrelating to the obligation, receipt, and use of public funds of the State, units of local government,\nand school districts are public records subject to inspection and copying by the public.\" This\noffice has reviewed the records at issue, which consist of the 2022 annual assessments or\n\"maintenance tax\" levied by the District on landowners within the District. Thus, the requested\nrecords clearly relate to the District's receipt of public funds.\n\nIn its responses to this office, the District's Board and legal counsel contended\nthat landowners! names and addresses, together with their personal financial information, are\nexempt from disclosure. In Binding Opinion 18-002, Attorney General Madigan determined that\na customer name listed on a water bill issued by a public body did not fall within the definition\nof \"private information\" in section 2(c-5), and therefore was not exempt from disclosure pursuant\nto section 7(1)(b) of FOIA. Ill. Att'y Gen. Pub. Acc. Op. No. 18-002, issued February 14, 2018,\nat 5. In that opinion, Attorney General Madigan looked to the plain language of sections 2(c-5)\nand 7(1)(b), and relied on a prior binding opinion which held that \"names are not specifically\nincluded in the definition of private information,’ and a name is not ordinarily sufficiently unique\nto identify a specific individual because many persons have the same name.\" II]. Att'y Gen. Pub.\nAcc. Op. No. 18-002, issued February 14, 2018, at 5 (quoting Ill. Att'y Gen. Pub. Acc. Op. No.\n12-003, issued January 18, 2012, at 7). Attorney General Madigan also determined in that\nopinion that, because bills for water services are expressly subject to disclosure under section\n\nLikewise, the annual assessments directly relate to the District's receipt of public\nfunds to be used for levee maintenance. Such records are expressly subject to disclosure under\nsection 2.5. Further, the District has provided no explanation concerning how the amount owed\nby each landowner constitutes \"personal financial information\" under section 2(c-5) of FOIA.\nBecause the annual assessments in question reflect the anticipated receipt of funds by the District\nand because the District has not demonstrated that section 7(1)(b) is applicable to the requested\nrecords, this office concludes that the District improperly withheld the annual assessments in\ntheir entireties.1 In accordance with that determination, this office requests that the District\nprovide Ms. Roskamp with copies of the records at issue, including the responsive annual\nassessments for other District landowners. \"Home\" addresses of property owners may be\nredacted pursuant to section 7(1)(b) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. 51203, issued\nAugust 2, 2018 (home address of utility bill that displays name of utility customer exempt as\nprivate information). Addresses of properties owned by companies and/or incorporated farming\noperations, however, are business addresses that are not within the scope of the exemption. Ill.\nAtt'y Gen. PAC Req. Rev. Ltr. 48986, issued July 1, 2020, at 4 (information that identifies\nbusinesses rather than individuals not exempt from disclosure under section 7(1)(b) of FOIA).\n\nFinally, it is unclear, based on the District's response to this office, the extent to\nwhich additional responsive financial records exist. For example, although the District provided\nthis office with a representative sampling of the requested annual assessments, it is unclear\nwhether the District maintains \"collector's books\" as identified in JJ request.°\nAccordingly, this office requests that the District conduct a new search for records and issue a\nsupplemental response to {. cither disclosing copies of the non-exempt portions of\nthe records it locates or, if no responsive records are located, describing the specific measures\nthat were taken to locate records.\n\n4 In Timpone v. Illinois Student Assistance Comm'n, 2019 IL App (Ist) 181115, 147 N.E.3d 873\n(2019), the Illinois Appellate Court held that names may be withheld under section 7(1)(b) when disclosure could be\nmatched to information posted on a State agency's website about the income earned by students and spouses or\nparents of students who received or applied for financial aid grants. The court explained that \"the context of the\ninformation disclosure is significant[,]\" and that the names were exempt under section 7(1)(b) because they would\ninvade those individuals' privacy in light of the \"detailed personal income information\" posted on the agency's\nwebsite. Timpone, 2019 IL App (Ist) 181115, 4940-41, 147 N.E.3d at 887. Because that personal income\ninformation did not document the receipt or expenditure of public funds, it is readily distinguishable from the\nrecords about the District's assessment of maintenance taxes at issue in this matter.\n\n*For example, numerous references to \"collector's books\" throughout the Illinois Drainage Code\n(70 ILCS 605// et seg. (West 2022)) appear to indicate that those records are customarily maintained at the county\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at (217) 785-7438.\n\nVery truly yours,\n\nCHRISTOPHER R. BOGGS\nDeputy Public Access Counselor\nPublic Access Bureau\n\n73556 f 71b proper improper reg spd\n\ncc: Via electronic mail\nMr. John N. Hauk\nAttorney\nHauk & Owens, LLC\n811 Maine Street\nQuincy, Illinois 62301\njhauk@haukandowens.com"}
{"id":994,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2022-12-22","case_number":null,"request_numbers":["73794"],"title":"Rochester School District improperly withheld student grievance records under 7(1)(n)","filename":"73794, issued December 22, 2022.pdf","rel_path":null,"word_count":1718,"summary":"A parent requested records regarding a grievance and investigation into her son's medical homebound instruction, which the school district denied under section 7(1)(n). The PAC determined the district improperly withheld the records and requested their release.","plain_summary":"A parent asked a school district for records related to an investigation into her son's homebound education services. The district refused to provide the documents, claiming they were exempt from disclosure. The Attorney General's office reviewed the case and concluded the district was wrong to withhold the records and should provide them to the parent.","holding":"The Rochester Community Unit School District 3A improperly withheld records responsive to the requester's FOIA request.","legal_question":"Whether the school district properly invoked section 7(1)(n) of FOIA to withhold records related to a grievance and investigation concerning a student's medical homebound instruction.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(n)"],"public_body":"Rochester Community Unit School District 3A","requesting_party":"a parent","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"student records","subject_description":"The request sought records concerning a grievance and investigation into the provision of medical homebound instruction for a student.","ocr_status":"ok","ocr_quality":94.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_n/73794%2C%20issued%20December%2022%2C%202022.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["school records","student grievance","homebound instruction","FOIA denial"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 22, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Dan W. Cox\nSuperintendent\nRochester CUSD No. 3A\n[street address redacted for site publication -- see original PDF]\ndcox@rochester3a. net\n\nRE:   FOIA Request for Review –  2022 PAC 73794\n\nDear\n\nand Mr. Cox: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Rochester Community Unit School District 3A ( School\nSeptember 13, 2022, FOIA\nDistrict) improperly withheld records responsive to\nrequest. \n\nOn that date, \n\nsubmitted a FOIA request to the School District seeking\n\nrecords pertaining to the investigation of a complaint she filed related to her son's medical\nhomebound instruction.   Specifically,  she sought copies of:  (1) the formal grievance report, ( 2) \nthe investigation materials, and (3) \"information of what Rochester has documented with regard\nto providing academic and educational services to [ her son]  while on medical homebound.\" 1 On\n\n1E- mail from\n\nto Dan Cox (September 13, 2022). \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Dan W. Cox\nDecember 22,  2022\nPage 2\n\nSeptember 20, 2022, the School District denied the first two parts of the request pursuant to\nsection 7(1)( n)  of FOIA2 and asserted that it did not have records responsive to the third part. \n\nOn October 6, 2022,  this office received\n\nRequest for Review\n\ncontending that the 7(1)(n) exemption did not apply because she did not seek information\nconcerning employee disciplinary issues but rather information about the investigation into and\noutcome of her complaint.  \ninformation responsive to part three of her request.   Specifically,  she argued that the School\nDistrict is required to keep track of when, where, and what instructional services were provided\nto her son in order to receive a reimbursement\nfrom the Illinois State Board of Education for the\nservices.   \n\nalso contended that the School District should have\n\nOn October 14, 2022, this office forwarded a copy of the Request for Review to\n\nthe School District and asked it to provide copies of the withheld records,  together with a\ndetailed explanation of the factual and legal bases for the applicability of the asserted exemption; \nthis office also asked for a description of its search related to part three of the request.   On\nOctober 24, 2022, this office received the requested materials.  On October 26, 2022, this office\nforwarded a copy of the School District' s response to\nreply.   \n\nshe did not submit a written\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\"  that the records are exempt\nfrom disclosure.  5 ILCS 140/1.2 (West 2020).  The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 (1997).  \n\nSection 7(1)(n) of FOIA exempts from inspection and copying \"[ r]ecords relating\n\nto a public body' s adjudication of employee grievances or disciplinary cases;  however,  this\nexemption shall not extend to the final outcome of cases in which discipline is imposed.\"  \nEmphasis added.)   Black' s Law Dictionary defines the word \" adjudication\"  as \"[ t]he legal\nprocess of resolving a dispute; the process of judicially deciding a case.\"   Black's Law Dictionary\n47 ( 9th ed.  2009).   Black' s Law Dictionary further defines an \" adjudication hearing\"  as an\na]gency proceeding in which a person's rights and duties are decided after notice and an\n\n2022; 102-1055, effective June 10, 2022. \n\n25 ILCS 140/7(1)(n) (West 2021 Supp.), as amended by Public Acts 102 -791, effective May 13, \n\n\fMr. Dan W. Cox\nDecember 22,  2022\nPage 3\n\nopportunity to be heard.\"   Black's Law Dictionary 788 (9th ed. 2009).  In Kalven v. City of\nChicago,  2014 IL App ( 1st)  121846, ¶ 13, 7 N.E.3d 741,  745 ( 2014),  the Illinois Appellate Court\nsimilarly construed an \" adjudication\" for purposes of section 7(1)(n) as a \" formalized legal\nprocess that results in a final and enforceable decision.\"  \n\nIn Peoria Journal Star v. City of Peoria,  2016 IL App ( 3d)  140838, ¶¶ 14- 16, 52\n\nN.E.3d 711, 714 (2016), the Illinois Appellate Court distinguished between records that relate to\ninvestigations of complaints against employees and records that relate to the adjudication of\nemployee discipline or grievances.  In that case, the court explained: \" A complaint or grievance\nis part of an investigatory process that is separate and distinct from a disciplinary adjudication\ninternal citation.] A complaint or grievance initiates an investigative process; any disciplinary\nadjudication that may take place as a result of the investigation comes later.\"   Peoria Journal\nStar, 2016 IL App (3d) 140838, ¶14, 52 N.E.3d at 714.  The court held that records documenting\ninvestigations do not fall within the scope of section 7(1)( n) of FOIA.   Peoria Journal Star,  2016\nIL App (3d) 140838, ¶¶14-16, 52 N.E.3d at 714.  See also Kalven, 2014 IL App (1st) 121846, \n13, 7 N.E.3d at 745 ( scope of section 7(1)( n)  is limited to records generated during an\nadjudication and does not encompass records of the underlying investigation). \n\nIn its response to this office, the School District asserted that it had interpreted\n\ncomplaint as alleging misconduct against certain School District employees, \n\nspecifically \"that particular employees failed to provide homebound instruction to her son.\" 3\nAccordingly,  the School District conducted an investigation into the allegations against the\nemployees.  The School District explained that the investigation determined that the complaint\nwas unfounded,  and thus no disciplinary actions were taken.   The School District argued that\nthe underlying report and evidence\"  related to the complaint fell within the scope of section\n7(1)( n) because it involved a grievance against its employees. 4\n\nBased on this office' s review of the School District' s response and withheld\n\nrecords, the records were not generated in connection with a formalized legal proceeding that\ncould constitute an \" adjudication\"  of an employee grievance or disciplinary case.   The grievance\nreport and accompanying materials reflect that the School District interviewed teachers, gathered\ninformation related to homebound instruction for\nson,  and documented the outcome of\nits findings in a report.  Even if this investigation of the grievance could be construed as an\ninvestigation of an employee disciplinary case,  records pertaining to the investigation are\ndistinguishable from records of an adjudication.  Written statements and other evidence gathered\n\n3A, to Teresa Lim, Assistant Attorney General, Public Access Bureau (October 24, 2022). \n\n3Letter from Dan W. Cox, Superintendent of Schools, Rochester Community Unit School District\n\n3A, to Teresa Lim, Assistant Attorney General, Public Access Bureau (October 24, 2022). \n\n4Letter from Dan W. Cox, Superintendent of Schools, Rochester Community Unit School District\n\n\fMr. Dan W. Cox\nDecember 22,  2022\nPage 4\n\nduring an investigation, as well as memoranda explaining the outcome of the investigation, \ngenerally do not fall within the scope of section 7(1)( n) because investigations and adjudications\nare separate processes.  Ill. Att'y Gen. Pub. Acc. Op. No. 21-010, at 7-8, issued October 12, 2021\nrecords pertaining to alleged employee misconduct,  including an incident report by\ncomplainant, response of the accused, and memoranda documenting results of investigation, not\nexempt under section 7(1)( n)).   If the investigation had substantiated the complaint,  it possibly\ncould have led to an adjudication of an employee disciplinary case.  Instead, the investigation\nconcluded that the complaint was unfounded.   Because these investigatory records precede any\npotential disciplinary adjudication, the School District improperly withheld the records\nresponsive to parts 1 and 2 of the request pursuant\n\nto section 7(1)( n) of FOIA. \n\nAs noted above,  part 3 of\n\nsought \" what Rochester has documented with\n\nfurther stated:  \" I would like the specific day( s)  and time( s)  said\n\nregard to providing academic and educational services to [her son]  while on medical\nhomebound.\" 5\nacademic instruction was provided, who provided it, where they provided it, and what subject\nmatter and specific lesson content that was covered.\" 6 Under FOIA, \"[ a] ll records in the custody\nor possession of a public body are presumed to be open to inspection or copying.\"  5 ILCS\n140/ 1.2 (West 2020).   However, \"[ a]  request to inspect or copy must reasonably identify a public\nrecord and not general data, information, or statistics.\" Chicago Tribune Co. v. Department of\nFinancial and Professional Regulation,  2014 IL App 4th 130427, ¶ 34,  8 N.E.3d 11,  19 ( 2014).  \nFurther, a public body is not required to answer questions or create new records in response to a\nFOIA request.   Kenyon v. Garrels,  184 Ill. App.  3d 28, 32 ( 4th Dist.  1989).   Rather than\nreasonably describing records, \nreceived homebound instruction.   The School District asserted it does not possess responsive\nrecords, and FOIA does not require it to compile the dates, instructors, and other specified details\nin response to the request.   This office nonetheless notes that the records responsive to parts 1\nand 2 contain information related to the provision of homebound instruction. \n\nposed questions about when, where, and how her son\n\n5E- mail from\n\nto Dan Cox (September 13, 2022). \n\n6E- mail from\n\nto Dan Cox (September 13, 2022). \n\n\fMr. Dan W. Cox\nDecember 22,  2022\nPage 5\n\nIn accordance with the conclusions expressed in this determination, this office\nwith copies of the records responsive to the\n\nrequests that the School District provide\nfirst two parts of her request.  The Public Access Counselor has determined that resolution of this\nmatter does not require the issuance of a binding opinion.   This letter shall serve to close this\nmatter.  If you have any questions, please contact me at the Chicago address listed on the first\npage of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\n73794 f 71n improper sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on a student's medical homebound instruction grievance","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-73794/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nDecember 22, 2022\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Dan W. Cox\nSuperintendent\nRochester CUSD No. 3A\n[street address redacted for site publication -- see original PDF]\ndcox@rochester3a. net\n\nRE: FOIA Request for Review – 2022 PAC 73794\n\nDear\n\nand Mr. Cox: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Rochester Community Unit School District 3A (School\nSeptember 13, 2022, FOIA\nDistrict) improperly withheld records responsive to\nrequest. \n\nOn that date, \n\nsubmitted a FOIA request to the School District seeking\n\nrecords pertaining to the investigation of a complaint she filed related to her son's medical\nhomebound instruction. Specifically, she sought copies of: (1) the formal grievance report, (2) \nthe investigation materials, and (3) \"information of what Rochester has documented with regard\nto providing academic and educational services to [ her son] while on medical homebound.\" 1 On\n\n1E- mail from\n\nto Dan Cox (September 13, 2022). \n\nSeptember 20, 2022, the School District denied the first two parts of the request pursuant to\nsection 7(1)(n) of FOIA2 and asserted that it did not have records responsive to the third part. \n\nOn October 6, 2022, this office received\n\nRequest for Review\n\ncontending that the 7(1)(n) exemption did not apply because she did not seek information\nconcerning employee disciplinary issues but rather information about the investigation into and\noutcome of her complaint. \ninformation responsive to part three of her request. Specifically, she argued that the School\nDistrict is required to keep track of when, where, and what instructional services were provided\nto her son in order to receive a reimbursement\nfrom the Illinois State Board of Education for the\nservices. \n\nalso contended that the School District should have\n\nOn October 14, 2022, this office forwarded a copy of the Request for Review to\n\nthe School District and asked it to provide copies of the withheld records, together with a\ndetailed explanation of the factual and legal bases for the applicability of the asserted exemption; \nthis office also asked for a description of its search related to part three of the request. On\nOctober 24, 2022, this office received the requested materials. On October 26, 2022, this office\nforwarded a copy of the School District's response to\nreply. \n\nshe did not submit a written\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(n) of FOIA exempts from inspection and copying \"[ r]ecords relating\n\nto a public body's adjudication of employee grievances or disciplinary cases; however, this\nexemption shall not extend to the final outcome of cases in which discipline is imposed.\" \nEmphasis added.) Black's Law Dictionary defines the word \" adjudication\" as \"[ t]he legal\nprocess of resolving a dispute; the process of judicially deciding a case.\" Black's Law Dictionary\n47 (9th ed. 2009). Black's Law Dictionary further defines an \" adjudication hearing\" as an\na]gency proceeding in which a person's rights and duties are decided after notice and an\n\n2022; 102-1055, effective June 10, 2022. \n\n25 ILCS 140/7(1)(n) (West 2021 Supp.), as amended by Public Acts 102 -791, effective May 13, \n\nopportunity to be heard.\" Black's Law Dictionary 788 (9th ed. 2009). In Kalven v. City of\nChicago, 2014 IL App (1st) 121846, ¶ 13, 7 N.E.3d 741, 745 (2014), the Illinois Appellate Court\nsimilarly construed an \" adjudication\" for purposes of section 7(1)(n) as a \" formalized legal\nprocess that results in a final and enforceable decision.\" \n\nIn Peoria Journal Star v. City of Peoria, 2016 IL App (3d) 140838, ¶¶ 14- 16, 52\n\nN.E.3d 711, 714 (2016), the Illinois Appellate Court distinguished between records that relate to\ninvestigations of complaints against employees and records that relate to the adjudication of\nemployee discipline or grievances. In that case, the court explained: \" A complaint or grievance\nis part of an investigatory process that is separate and distinct from a disciplinary adjudication\ninternal citation.] A complaint or grievance initiates an investigative process; any disciplinary\nadjudication that may take place as a result of the investigation comes later.\" Peoria Journal\nStar, 2016 IL App (3d) 140838, ¶14, 52 N.E.3d at 714. The court held that records documenting\ninvestigations do not fall within the scope of section 7(1)(n) of FOIA. Peoria Journal Star, 2016\nIL App (3d) 140838, ¶¶14-16, 52 N.E.3d at 714. See also Kalven, 2014 IL App (1st) 121846, \n13, 7 N.E.3d at 745 (scope of section 7(1)(n) is limited to records generated during an\nadjudication and does not encompass records of the underlying investigation). \n\nIn its response to this office, the School District asserted that it had interpreted\n\ncomplaint as alleging misconduct against certain School District employees, \n\nspecifically \"that particular employees failed to provide homebound instruction to her son.\" 3\nAccordingly, the School District conducted an investigation into the allegations against the\nemployees. The School District explained that the investigation determined that the complaint\nwas unfounded, and thus no disciplinary actions were taken. The School District argued that\nthe underlying report and evidence\" related to the complaint fell within the scope of section\n7(1)(n) because it involved a grievance against its employees. 4\n\nBased on this office's review of the School District's response and withheld\n\nrecords, the records were not generated in connection with a formalized legal proceeding that\ncould constitute an \" adjudication\" of an employee grievance or disciplinary case. The grievance\nreport and accompanying materials reflect that the School District interviewed teachers, gathered\ninformation related to homebound instruction for\nson, and documented the outcome of\nits findings in a report. Even if this investigation of the grievance could be construed as an\ninvestigation of an employee disciplinary case, records pertaining to the investigation are\ndistinguishable from records of an adjudication. Written statements and other evidence gathered\n\n3A, to Teresa Lim, Assistant Attorney General, Public Access Bureau (October 24, 2022). \n\n3 Letter from Dan W. Cox, Superintendent of Schools, Rochester Community Unit School District\n\n3A, to Teresa Lim, Assistant Attorney General, Public Access Bureau (October 24, 2022). \n\n4 Letter from Dan W. Cox, Superintendent of Schools, Rochester Community Unit School District\n\nduring an investigation, as well as memoranda explaining the outcome of the investigation, \ngenerally do not fall within the scope of section 7(1)(n) because investigations and adjudications\nare separate processes. Ill. Att'y Gen. Pub. Acc. Op. No. 21-010, at 7-8, issued October 12, 2021\nrecords pertaining to alleged employee misconduct, including an incident report by\ncomplainant, response of the accused, and memoranda documenting results of investigation, not\nexempt under section 7(1)(n)). If the investigation had substantiated the complaint, it possibly\ncould have led to an adjudication of an employee disciplinary case. Instead, the investigation\nconcluded that the complaint was unfounded. Because these investigatory records precede any\npotential disciplinary adjudication, the School District improperly withheld the records\nresponsive to parts 1 and 2 of the request pursuant\n\nto section 7(1)(n) of FOIA. \n\nAs noted above, part 3 of\n\nsought \" what Rochester has documented with\n\nfurther stated: \" I would like the specific day(s) and time(s) said\n\nregard to providing academic and educational services to [her son] while on medical\nhomebound.\" 5\nacademic instruction was provided, who provided it, where they provided it, and what subject\nmatter and specific lesson content that was covered.\" 6 Under FOIA, \"[ a] ll records in the custody\nor possession of a public body are presumed to be open to inspection or copying.\" 5 ILCS\n140/ 1.2 (West 2020). However, \"[ a] request to inspect or copy must reasonably identify a public\nrecord and not general data, information, or statistics.\" Chicago Tribune Co. v. Department of\nFinancial and Professional Regulation, 2014 IL App 4th 130427, ¶ 34, 8 N.E.3d 11, 19 (2014). \nFurther, a public body is not required to answer questions or create new records in response to a\nFOIA request. Kenyon v. Garrels, 184 Ill. App. 3d 28, 32 (4th Dist. 1989). Rather than\nreasonably describing records, \nreceived homebound instruction. The School District asserted it does not possess responsive\nrecords, and FOIA does not require it to compile the dates, instructors, and other specified details\nin response to the request. This office nonetheless notes that the records responsive to parts 1\nand 2 contain information related to the provision of homebound instruction. \n\nIn accordance with the conclusions expressed in this determination, this office\nwith copies of the records responsive to the\n\nrequests that the School District provide\nfirst two parts of her request. The Public Access Counselor has determined that resolution of this\nmatter does not require the issuance of a binding opinion. This letter shall serve to close this\nmatter. If you have any questions, please contact me at the Chicago address listed on the first\npage of this letter. \n\nVery truly yours, \n\nTERESA LIM\nAssistant Attorney General\nPublic Access Bureau\n\n73794 f 71n improper sd"}
{"id":995,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-03-08","case_number":null,"request_numbers":["74214"],"title":"Chicago Police Department improperly denied FOIA request as unduly burdensome","filename":"74214, issued March 8, 2023.pdf","rel_path":null,"word_count":3113,"summary":"The requester sought emails from the Chicago Police Department regarding traffic stops, which the Department denied as unduly burdensome. The PAC determined that the Department failed to provide clear and convincing evidence that the request was unduly burdensome and ordered the Department to produce the records.","plain_summary":"A requester asked the Chicago Police Department for emails about traffic stops, but the Department refused, claiming it would be too much work to find them. The Attorney General's office reviewed the case and decided the Department improperly denied the request as unduly burdensome, partly because it did not respond on time. The source does not state that the Department must now search for and provide the requested emails.","holding":"The Chicago Police Department improperly denied the request as unduly burdensome.","legal_question":"Whether the Chicago Police Department met its burden of proving that a FOIA request was unduly burdensome under section 3(g) of FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Chicago Police Department","requesting_party":"Ms. Amy Thompson","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought emails between high-ranking Chicago Police Department officials regarding traffic stops over a three-month period.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Strong-public-interest/74214%2C%20issued%20March%208%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","police records","email request","FOIA denial"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 8, 2023\n\nVia electronic mail\nMs. Amy Thompson\nStaff Counsel\nBusiness and Professional People for the Public Interest\n[street address redacted for site publication -- see original PDF]\nathompson@bpichicago. org\n\nVia electronic mail\nMr. Robert A. Cannatello, Jr.  \nSenior Attorney\nLegal Affairs Division – Unit 114\nChicago Police Department\n3510 South Michigan Avenue\nChicago,  Illinois 60653\npacola@chicagopolice.org\n\nRE:  FOIA Request for Review – 2022 PAC 74214; CPD FOIA No. P785027\n\nDear Ms. Thompson and Mr. Cannatello: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow,  the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) improperly denied\nMs. Amy Thompson' s September 23, 2022,  FOIA request as unduly burdensome. \n\nOn that date,  Ms. Thompson submitted a FOIA request ( CPD FOIA No. \n\nP785027) to CPD seeking copies of all e-mails between the Superintendent of Police, Bureau of\nPatrol Chief,  Area 4 Deputy Chief,  District 10 Commander,  District 11 Commander,  and District\n15 Commander regarding traffic stops for the months of August, September, and October 2020.  \nto section 3(e)  of FOIA ( 5 ILCS\nThe same day,  CPD extended its time for a response pursuant\n140/3(e) ( West 2020)).  On October 13, 2022, CPD responded by stating that it had previously\nrun an e- mail search for the same records as part of another request,  CPD FOIA No. P739126.  \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr.  \nMarch 8, 2023\nPage 2\n\nCPD referred Ms. Thompson to the portion of its response to that matter in which it asserted that\nit had uncovered more than 500 responsive e- mails and therefore denied the request as still\nunduly burdensome pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2020)).  CPD\nstated it was closing P785027 \" as a duplicate of P739126[.]\" 1\n\nOn November 7, 2022,  this office received Ms. Thompson' s Request for Review\n\nchallenging CPD's claim that compliance with her September 23, 2022, request would be unduly\nburdensome.   Ms. Thompson explained that she had submitted a two- part request in P739126, \nwhich CPD denied as still unduly burdensome after she narrowed the request.  One of the items\nin the narrowed request sought the same e- mails at issue.   Ms. Thompson contended that her\npresent request was not a duplicate of P739126 because she had dropped the other item.  She also\nargued that there is a substantial public interest in the subject of traffic stops,  and that her request\nwas targeted:  \" Our request asks for the precise information we seek – we want to see how traffic\nstops are communicated about from top CPD officials to district commanders to better\nunderstand how and why these neighborhoods experience the number of stops that they do.\" 2\n\nOn November 18, 2022, this office forwarded a copy of the Request for Review to\n\nCPD and asked it to provide a written response addressing the factual and legal bases for the\napplicability of section 3(g) to Ms. Thompson's September 23, 2022, request, as well as copies of\nCPD' s communications with Ms. Thompson related to P739126.    On November 30,  2022,  this\noffice received the requested materials.  On December 7, 2022, this office forwarded a copy of\nCPD' s response to Ms. Thompson;  she replied on December 15,  2022.   \n\nDETERMINATION\n\nIt is a fundamental obligation of government to operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [FOIA].\"  5 ILCS\n140/ 1 ( West 2020).   Section 3(d) of FOIA ( 5 ILCS 140/ 3(d) ( West 2020))  provides,  in pertinent\npart, that:  \n\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection ( e)  of this Section.  * * *   Failure to\ncomply with a written request, extend the time for response, or\ndeny a request within 5 business days after its receipt shall be\n\n1E- mail from G. Rubenstein, FOIA Officer, to [Amy Thompson] ( October 13, 2022). \n\nAmy Thompson (November 7, 2022). \n\n2Attachment to FOIA – Request for Review by Public Access Counselor (PAC) form submitted by\n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr.  \nMarch 8, 2023\nPage 3\n\nconsidered a denial of the request. A public body that fails to\nrespond to a request within the requisite periods in this Section\nbut thereafter provides the requester with copies of the\nrequested public records may not impose a fee for such copies. \nA public body that fails to respond to a request received may\nnot treat the request as unduly burdensome under subsection\ng).  (Emphasis added.) \n\nAs noted above, Ms. Thompson submitted her request on September 23, 2022, \n\nand later that day,  CPD extended its time to respond by an additional\nto section 3(e) of FOIA.  Therefore, CPD had until October 7, 2022, to respond to the request.  \nCPD issued a final response,  however,  on October 13,  2022.   Because CPD did not respond to\nthe request in a timely manner in accordance with section 3(d) of FOIA, CPD waived the\nopportunity to treat the request as unduly burdensome.   Ill. Att' y Gen.  Pub.  Acc.  Op.  No. 14- 007, \nissued August 14, 2014, at 8 (public body that failed to issue timely response and failed to\ncomply with the requisite procedures in section 3(g) improperly denied request as unduly\nburdensome). \n\nfive business days pursuant\n\nEven if the response was timely, CPD must also show by clear and convincing\n\nevidence that:  ( 1) compliance with the request would be unduly burdensome,  and that the\nburden on the public body outweighs the public interest in the information or (2) the request\nconstitutes an unduly burdensome repeated request.   Specifically,  section 3(g) of FOIA provides: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information.   Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body responds\nto a categorical\nburden its operation and the conditions described above are met, it\nshall do so in writing,  specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body.  Such a response shall be\ntreated as a denial of the request for information. \n\nrequest by stating that compliance would unduly\n\nRepeated requests from the same person for the same\nrecords that are unchanged or identical to records previously\n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr.  \nMarch 8, 2023\nPage 4\n\nprovided or properly denied under this Act shall be deemed unduly\nburdensome under this provision. \n\nUnder the plain language of section 3(g), a public body may only deny a request as an unduly\nburdensome repeated request if it has previously provided the requester with the responsive\nrecords or properly denied a prior,  unchanged request.   In this matter,  CPD appears to have\ntreated the September 23, 2022, request as an unduly burdensome repeated request, asserting that\nP785027 was a \" duplicate\"  of P739126. 3 Assuming for argument' s sake that P785027 was\nunchanged from P739126, this office will review whether the request for the e-mails at issue was\nproperly denied,  that is whether the request was unduly burdensome.  \n\nA request that is overly broad and requires the public body to locate,  review, \nredact and arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequester' s]  purpose constitutes an undue burden.\"   National Ass' n of Criminal Defense Lawyers\nv. Chicago Police Department, 399 Ill. App. 3d 1, 17 (1st Dist. 2010).  However, a request for a\nsubstantial volume of records is not unduly burdensome when there is a compelling public\ninterest in disclosure that outweighs the public body's burden.  National Ass'n of Criminal\nDefense Lawyers,  399 Ill. App.  3d at 17;  see also Bowie v. Evanston Comm' y Consolidated Sch. \nDist. 65, 168 Ill. App. 3d 101, 112 (1st Dist. 1988) (\"[ T]hat defendants will have to expend\nvaluable labor and computer time to comply with plaintiffs'  request does not impose a burden on\ndefendants outweighing the public interest in the information.\").  \n\nSection 3(g) does not define what constitutes an unduly burdensome request, \n\nother than that it is a categorical\nrequest for records in which the burden on the public body of\nproducing the records would outweigh the public interest in obtaining the information.  Thus, \nsection 3(g) necessarily involves a case- by-case analysis in which the public body must\ndemonstrate the extent of the burden of compliance on its operations, and that the burden\noutweighs the public interest in disclosure.   See Sargent Shriver National Center on Poverty\nLaw, Inc. v. Board of Education of City of Chicago, 2018 IL App (1st) 171846, ¶38, 122 N.E.3d\n729,  738 ( 2018) (\" What constitutes a clear and convincing showing of undue burden will likely\nvary from case to case, depending on the broadness of the request, the level of detail provided in\nthe public body' s response,  and the nature of the parties'  exchange.\"). \n\nIn its response to this office,  CPD explained that the September 23,  2022,  request\n\nstems from a series of four (4) FOIA requests made by Ms. Thompson from the period of\nMarch 2022 through September 2022[,]\"  and that it had responded to each of them by \" indicating\nthat her [request]  was unduly burdensome\"  and providing opportunities for Ms. Thompson to\n\n3E- mail from G. Rubenstein, FOIA Officer, to [Amy Thompson] ( October 13, 2022). \n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr.  \nMarch 8, 2023\nPage 5\n\nnarrow them.4 CPD acknowledged that the September 23, 2022, request removed one of the\nitems sought in P739126,  but it argued that eliminating that item did not alleviate the burden\nbecause the remaining part still yielded more than 500 pages of responsive e-mails.  According\nto CPD,  it \"would take a FOIA Officer approximately 20.8 hours to review [ the responsive\ndocuments],  not including time spent on document retrieval and all other tasks.\" 5 CPD\ncontended that compiling and reviewing the records for potential redactions would put a\nsubstantial strain on the operations of its FOIA unit, as the unit had received more than 18,000\nrequests in the past year and \" would lose the manpower of one trained FOIA Officer for nearly a\nweek in order to comply with Ms. Thompson's speciously broad request.\" 6 CPD also argued that\nthe request was broad in that it did not provide the names of specific individuals,  therefore\nrequiring its FOIA officers to spend time identifying individuals who held the requested title\npositions.   \n\nIn reply to that answer,  Ms. Thompson pointed out that in P739126,  \n\nthe FOIA Officer had already determined precisely the six individuals holding the specified\ntitled positions during the three- month period[.]\" 7 Thus,  CPD already had names of the relevant\nindividuals.  Ms. Thompson disputed CPD's claim that her request was overly broad, reiterating\nthat her request was targeted to her stated interest.   She asserted,  in relevant part: \n\ninterest in understanding when and\n\nThe public has a substantial\nwhy CPD administrators direct traffic stops be made, because of\nescalating pervasiveness of traffic stops in recent years and the\nracial disparities exhibited among those stops. This request seeks\ninformation specifically tailored to that interest.  The request has\nbeen narrowed to a three-month period in 2020 during which there\nwas a spike in CPD traffic stops.  It has been narrowed to the six\nindividuals who would be communicating about traffic stops in\n\n4Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [1]. \n\n5Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [2]. \n\n6Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [ 3]. \n\n7Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 2]. \n\n\fMs. Amy Thompson\nMr. Robert A. Cannatello, Jr.  \nMarch 8, 2023\nPage 6\n\nthree of the police districts that typically conduct the highest\nnumber of traffic stops.  It has been narrowed to only include\nemails regarding traffic stops, providing the precise search subject\nfor the FOIA Officer.[ 8] \n\nMs. Thompson further argued that \" processing FOIA requests is part of the CPD FOIA Office' s\nnormal operations, and the 20.8 hours of one FOIA Officer’ s time at issue is not so burdensome\nthat it would obstruct the other\"  FOIA officers from responding to other requests. 9 She\nmaintained that the public interest in the information outweighed the burden of compliance. \n\nHaving reviewed the information submitted by the parties, this office is unable to\n\nconclude that the burden of compiling and reviewing the responsive e- mails outweighed the\npublic interest in the requested information.  CPD contended, in part, that the request was overly\nbroad because it did not provide the names of any particular individuals.   Yet,  as Ms. Thompson\nnoted, CPD had already determined the names of the individuals who would possess responsive\ne-mails.   Even if the names had not been previously determined,  CPD did not demonstrate that it\nwould be an undue burden to identify the relevant persons who served in the six specific\nleadership positions,  such as the commanders of particular districts.   See also Ill. Att' y Gen.  PAC\nReq. Rev. Ltr. 72542, issued August 23, 2022, at 5 (\"A requester is not required to identify\nspecific employees or e- mail accounts in order to reasonably describe communications\nconcerning a particular subject matter.\").   Additionally, CPD did not describe the types of\ninformation likely contained in the e- mails that would require a significant amount of staff time\nto inspect and redact.  Ms. Thompson explained she was interested in any instructions provided\nto the commanders regarding when to conduct traffic stops.   While some exemptions could\npotentially apply to certain communications, CPD did not illustrate that most of the e-mails\ncontain the type of information that would require a time- consuming review. \n\nFurther,  the expending of valuable staff work time alone does not render a request\n\nunduly burdensome.  National Ass'n, 399 Ill. App.3d at 17 (production of records related to a\nspecific study not an undue burden because there was a compelling public interest in disclosure, \neven if compliance with the request would require several weeks of full-time work by employees\nof the public body).   See also Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. 45458,  issued March 9, 2017\npublic body improperly denied as unduly burdensome a request for copies of all\n\n8Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 2]. \n\n9Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 4]. \n\n\fs. Amy Thompson\nMr. Robert A. Cannatello, Jr.  \nMarch 8, 2023\nPage 7\n\ncommunications pertaining to the impact of a legislative bill because there was a compelling\npublic interest in the topic);  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 39384,  issued March 30,  2016\npublic body failed to demonstrate that compiling and producing 317 responsive e-mails would\nunduly burden its operations).   Here,  the request concerned a specific,  targeted topic–– traffic\nstops in three districts during the months of August, September, and October 2020.  Ms. \nThompson explained that those three districts typically have a high number of traffic stops,  and\nthat there was a spike in traffic stops during those three months.  There is a compelling public\ninterest in information that sheds light on when and why traffic stops appear to be higher in\ncertain neighborhoods.  The scope of the request was reasonably tailored to the purpose of\nunderstanding how CPD' s administrators have addressed traffic stops in those areas by seeking\nonly e-mails related to traffic stops between six CPD officials and commanders who oversee the\nthree districts,  limited to three particularly active months.   This office recognizes that compiling\nand reviewing the responsive-mails would not be an insignificant task, but the information\nprovided by CPD is insufficient\ncompliance outweighs the public interest in disclosure of the records.  Accordingly, this office\nconcludes that CPD improperly denied the request for the e- mails at issue as unduly burdensome.  \n\nto make a \" clear and convincing\"  showing that the burden of\n\nThis office requests that CPD search for and compile the e-mails responsive to\n\nMs. Thompson's September 23, 2022, request and furnish her with copies of those records, \nsubject only to permissible exemptions under section 7 of FOIA. 10 If CPD redacts information\nor withholds any of the records, it should issue a notice of denial that meets the requirements of\nsection 9(a)  of FOIA ( 5 ILCS 140/ 9(a) ( West 2020)).   \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\nhave any questions,  please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nSupervising Attorney\nPublic Access Bureau\n\n74214 f 3g und burden improper pd\n\n105 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102 -752, effective January 1, \n\n2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022; \n102-1055, effective June 10, 2022. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Emails between police officials about traffic stops","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74214/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMarch 8, 2023\n\nVia electronic mail\nMs. Amy Thompson\nStaff Counsel\nBusiness and Professional People for the Public Interest\n[street address redacted for site publication -- see original PDF]\nathompson@bpichicago. org\n\nVia electronic mail\nMr. Robert A. Cannatello, Jr. \nSenior Attorney\nLegal Affairs Division – Unit 114\nChicago Police Department\n3510 South Michigan Avenue\nChicago, Illinois 60653\npacola@chicagopolice.org\n\nRE: FOIA Request for Review – 2022 PAC 74214; CPD FOIA No. P785027\n\nDear Ms. Thompson and Mr. Cannatello: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the Chicago Police Department (CPD) improperly denied\nMs. Amy Thompson's September 23, 2022, FOIA request as unduly burdensome. \n\nOn that date, Ms. Thompson submitted a FOIA request (CPD FOIA No. \n\nP785027) to CPD seeking copies of all e-mails between the Superintendent of Police, Bureau of\nPatrol Chief, Area 4 Deputy Chief, District 10 Commander, District 11 Commander, and District\n15 Commander regarding traffic stops for the months of August, September, and October 2020. \nto section 3(e) of FOIA (5 ILCS\nThe same day, CPD extended its time for a response pursuant\n140/3(e) (West 2020)). On October 13, 2022, CPD responded by stating that it had previously\nrun an e- mail search for the same records as part of another request, CPD FOIA No. P739126. \n\nCPD referred Ms. Thompson to the portion of its response to that matter in which it asserted that\nit had uncovered more than 500 responsive e- mails and therefore denied the request as still\nunduly burdensome pursuant to section 3(g) of FOIA (5 ILCS 140/3(g) (West 2020)). CPD\nstated it was closing P785027 \" as a duplicate of P739126[.]\" 1\n\nOn November 7, 2022, this office received Ms. Thompson's Request for Review\n\nchallenging CPD's claim that compliance with her September 23, 2022, request would be unduly\nburdensome. Ms. Thompson explained that she had submitted a two- part request in P739126, \nwhich CPD denied as still unduly burdensome after she narrowed the request. One of the items\nin the narrowed request sought the same e- mails at issue. Ms. Thompson contended that her\npresent request was not a duplicate of P739126 because she had dropped the other item. She also\nargued that there is a substantial public interest in the subject of traffic stops, and that her request\nwas targeted: \" Our request asks for the precise information we seek – we want to see how traffic\nstops are communicated about from top CPD officials to district commanders to better\nunderstand how and why these neighborhoods experience the number of stops that they do.\" 2\n\nOn November 18, 2022, this office forwarded a copy of the Request for Review to\n\nCPD and asked it to provide a written response addressing the factual and legal bases for the\napplicability of section 3(g) to Ms. Thompson's September 23, 2022, request, as well as copies of\nCPD's communications with Ms. Thompson related to P739126. On November 30, 2022, this\noffice received the requested materials. On December 7, 2022, this office forwarded a copy of\nCPD's response to Ms. Thompson; she replied on December 15, 2022. \n\nDETERMINATION\n\nIt is a fundamental obligation of government to operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with [FOIA].\" 5 ILCS\n140/ 1 (West 2020). Section 3(d) of FOIA (5 ILCS 140/ 3(d) (West 2020)) provides, in pertinent\npart, that: \n\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. * * * Failure to\ncomply with a written request, extend the time for response, or\ndeny a request within 5 business days after its receipt shall be\n\n1E- mail from G. Rubenstein, FOIA Officer, to [Amy Thompson] (October 13, 2022). \n\nAmy Thompson (November 7, 2022). \n\n2 Attachment to FOIA – Request for Review by Public Access Counselor (PAC) form submitted by\n\nconsidered a denial of the request. A public body that fails to\nrespond to a request within the requisite periods in this Section\nbut thereafter provides the requester with copies of the\nrequested public records may not impose a fee for such copies. \nA public body that fails to respond to a request received may\nnot treat the request as unduly burdensome under subsection\ng). (Emphasis added.) \n\nAs noted above, Ms. Thompson submitted her request on September 23, 2022, \n\nand later that day, CPD extended its time to respond by an additional\nto section 3(e) of FOIA. Therefore, CPD had until October 7, 2022, to respond to the request. \nCPD issued a final response, however, on October 13, 2022. Because CPD did not respond to\nthe request in a timely manner in accordance with section 3(d) of FOIA, CPD waived the\nopportunity to treat the request as unduly burdensome. Ill. Att' y Gen. Pub. Acc. Op. No. 14- 007, \nissued August 14, 2014, at 8 (public body that failed to issue timely response and failed to\ncomply with the requisite procedures in section 3(g) improperly denied request as unduly\nburdensome). \n\nfive business days pursuant\n\nEven if the response was timely, CPD must also show by clear and convincing\n\nevidence that: (1) compliance with the request would be unduly burdensome, and that the\nburden on the public body outweighs the public interest in the information or (2) the request\nconstitutes an unduly burdensome repeated request. Specifically, section 3(g) of FOIA provides: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body responds\nto a categorical\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\n\nprovided or properly denied under this Act shall be deemed unduly\nburdensome under this provision. \n\nUnder the plain language of section 3(g), a public body may only deny a request as an unduly\nburdensome repeated request if it has previously provided the requester with the responsive\nrecords or properly denied a prior, unchanged request. In this matter, CPD appears to have\ntreated the September 23, 2022, request as an unduly burdensome repeated request, asserting that\nP785027 was a \" duplicate\" of P739126. 3 Assuming for argument's sake that P785027 was\nunchanged from P739126, this office will review whether the request for the e-mails at issue was\nproperly denied, that is whether the request was unduly burdensome. \n\nA request that is overly broad and requires the public body to locate, review, \nredact and arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequester's] purpose constitutes an undue burden.\" National Ass' n of Criminal Defense Lawyers\nv. Chicago Police Department, 399 Ill. App. 3d 1, 17 (1st Dist. 2010). However, a request for a\nsubstantial volume of records is not unduly burdensome when there is a compelling public\ninterest in disclosure that outweighs the public body's burden. National Ass'n of Criminal\nDefense Lawyers, 399 Ill. App. 3d at 17; see also Bowie v. Evanston Comm' y Consolidated Sch. \nDist. 65, 168 Ill. App. 3d 101, 112 (1st Dist. 1988) (\"[ T]hat defendants will have to expend\nvaluable labor and computer time to comply with plaintiffs' request does not impose a burden on\ndefendants outweighing the public interest in the information.\"). \n\nSection 3(g) does not define what constitutes an unduly burdensome request, \n\nother than that it is a categorical\nrequest for records in which the burden on the public body of\nproducing the records would outweigh the public interest in obtaining the information. Thus, \nsection 3(g) necessarily involves a case- by-case analysis in which the public body must\ndemonstrate the extent of the burden of compliance on its operations, and that the burden\noutweighs the public interest in disclosure. See Sargent Shriver National Center on Poverty\nLaw, Inc. v. Board of Education of City of Chicago, 2018 IL App (1st) 171846, ¶38, 122 N.E.3d\n729, 738 (2018) (\" What constitutes a clear and convincing showing of undue burden will likely\nvary from case to case, depending on the broadness of the request, the level of detail provided in\nthe public body's response, and the nature of the parties' exchange.\"). \n\nIn its response to this office, CPD explained that the September 23, 2022, request\n\nstems from a series of four (4) FOIA requests made by Ms. Thompson from the period of\nMarch 2022 through September 2022[,]\" and that it had responded to each of them by \" indicating\n\nnarrow them.4 CPD acknowledged that the September 23, 2022, request removed one of the\nitems sought in P739126, but it argued that eliminating that item did not alleviate the burden\nbecause the remaining part still yielded more than 500 pages of responsive e-mails. According\nto CPD, it \"would take a FOIA Officer approximately 20.8 hours to review [ the responsive\ndocuments], not including time spent on document retrieval and all other tasks.\" 5 CPD\ncontended that compiling and reviewing the records for potential redactions would put a\nsubstantial strain on the operations of its FOIA unit, as the unit had received more than 18,000\nrequests in the past year and \" would lose the manpower of one trained FOIA Officer for nearly a\nweek in order to comply with Ms. Thompson's speciously broad request.\" 6 CPD also argued that\nthe request was broad in that it did not provide the names of specific individuals, therefore\nrequiring its FOIA officers to spend time identifying individuals who held the requested title\npositions. \n\nIn reply to that answer, Ms. Thompson pointed out that in P739126, \n\nthe FOIA Officer had already determined precisely the six individuals holding the specified\ntitled positions during the three- month period[.]\" 7 Thus, CPD already had names of the relevant\nindividuals. Ms. Thompson disputed CPD's claim that her request was overly broad, reiterating\nthat her request was targeted to her stated interest. She asserted, in relevant part: \n\ninterest in understanding when and\n\nThe public has a substantial\nwhy CPD administrators direct traffic stops be made, because of\nescalating pervasiveness of traffic stops in recent years and the\nracial disparities exhibited among those stops. This request seeks\ninformation specifically tailored to that interest. The request has\nbeen narrowed to a three-month period in 2020 during which there\nwas a spike in CPD traffic stops. It has been narrowed to the six\nindividuals who would be communicating about traffic stops in\n\n4 Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [1]. \n\n5 Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [2]. \n\n6 Letter from Robert A. Cannatello, Jr., Senior Attorney, Legal Affairs Division – Unit 114, \n\nChicago Police Department, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney\nGeneral (November 30, 2022), at [ 3]. \n\n7 Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n\nthree of the police districts that typically conduct the highest\nnumber of traffic stops. It has been narrowed to only include\nemails regarding traffic stops, providing the precise search subject\nfor the FOIA Officer.[ 8] \n\nMs. Thompson further argued that \" processing FOIA requests is part of the CPD FOIA Office's\nnormal operations, and the 20.8 hours of one FOIA Officer’ s time at issue is not so burdensome\nthat it would obstruct the other\" FOIA officers from responding to other requests. 9 She\nmaintained that the public interest in the information outweighed the burden of compliance. \n\nHaving reviewed the information submitted by the parties, this office is unable to\n\nconclude that the burden of compiling and reviewing the responsive e- mails outweighed the\npublic interest in the requested information. CPD contended, in part, that the request was overly\nbroad because it did not provide the names of any particular individuals. Yet, as Ms. Thompson\nnoted, CPD had already determined the names of the individuals who would possess responsive\ne-mails. Even if the names had not been previously determined, CPD did not demonstrate that it\nwould be an undue burden to identify the relevant persons who served in the six specific\nleadership positions, such as the commanders of particular districts. See also Ill. Att' y Gen. PAC\nReq. Rev. Ltr. 72542, issued August 23, 2022, at 5 (\"A requester is not required to identify\nspecific employees or e- mail accounts in order to reasonably describe communications\nconcerning a particular subject matter.\"). Additionally, CPD did not describe the types of\ninformation likely contained in the e- mails that would require a significant amount of staff time\nto inspect and redact. Ms. Thompson explained she was interested in any instructions provided\nto the commanders regarding when to conduct traffic stops. While some exemptions could\npotentially apply to certain communications, CPD did not illustrate that most of the e-mails\ncontain the type of information that would require a time- consuming review. \n\nFurther, the expending of valuable staff work time alone does not render a request\n\nunduly burdensome. National Ass'n, 399 Ill. App.3d at 17 (production of records related to a\nspecific study not an undue burden because there was a compelling public interest in disclosure, \neven if compliance with the request would require several weeks of full-time work by employees\nof the public body). See also Ill. Att' y Gen. PAC Req. Rev. Ltr. 45458, issued March 9, 2017\npublic body improperly denied as unduly burdensome a request for copies of all\n\n8 Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n15, 2022), at [ 2]. \n\n9 Letter from Amy Thompson, Staff Counsel, Criminal Legal Systems and Police Accountability, \nBPI, to Teresa Lim, Assistant Attorney General, Public Access Bureau, Office of the Attorney General (December\n\ncommunications pertaining to the impact of a legislative bill because there was a compelling\npublic interest in the topic); Ill. Att'y Gen. PAC Req. Rev. Ltr. 39384, issued March 30, 2016\npublic body failed to demonstrate that compiling and producing 317 responsive e-mails would\nunduly burden its operations). Here, the request concerned a specific, targeted topic–– traffic\nstops in three districts during the months of August, September, and October 2020. Ms. \nThompson explained that those three districts typically have a high number of traffic stops, and\nthat there was a spike in traffic stops during those three months. There is a compelling public\ninterest in information that sheds light on when and why traffic stops appear to be higher in\ncertain neighborhoods. The scope of the request was reasonably tailored to the purpose of\nunderstanding how CPD's administrators have addressed traffic stops in those areas by seeking\nonly e-mails related to traffic stops between six CPD officials and commanders who oversee the\nthree districts, limited to three particularly active months. This office recognizes that compiling\nand reviewing the responsive-mails would not be an insignificant task, but the information\nprovided by CPD is insufficient\ncompliance outweighs the public interest in disclosure of the records. Accordingly, this office\nconcludes that CPD improperly denied the request for the e- mails at issue as unduly burdensome. \n\nto make a \" clear and convincing\" showing that the burden of\n\nThis office requests that CPD search for and compile the e-mails responsive to\n\nMs. Thompson's September 23, 2022, request and furnish her with copies of those records, \nsubject only to permissible exemptions under section 7 of FOIA. 10 If CPD redacts information\nor withholds any of the records, it should issue a notice of denial that meets the requirements of\nsection 9(a) of FOIA (5 ILCS 140/ 9(a) (West 2020)). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at the Chicago address listed on the first page of this letter. \n\nVery truly yours, \n\nTERESA LIM\nSupervising Attorney\nPublic Access Bureau\n\n74214 f 3g und burden improper pd\n\n105 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102 -752, effective January 1, \n\n2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022; \n102-1055, effective June 10, 2022."}
{"id":996,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-02-06","case_number":null,"request_numbers":["74512"],"title":"City of Bloomington did not violate FOIA by redacting body camera audio","filename":"74512, issued February 6, 2023.pdf","rel_path":null,"word_count":1904,"summary":"The requester challenged the City of Bloomington's redaction of body camera footage related to an incident at a YMCA. The PAC determined that the City properly redacted the audio to protect the identities of complainants under FOIA exemptions.","plain_summary":"A citizen requested body camera footage from a police incident at a YMCA, but the City redacted parts of the audio. The Attorney General's office reviewed the request and found that the City was legally allowed to hide those portions to protect the privacy of the people speaking to the police. This means the City followed the law and does not have to release the redacted audio.","holding":"The City of Bloomington did not improperly redact the body camera footage.","legal_question":"Whether the City of Bloomington properly redacted audio from body camera footage pursuant to FOIA exemptions 7(1)(c), 7(1)(d)(iv), and 7.5(cc).","disposition":"no_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(iv)","7.5(cc)"],"public_body":"City of Bloomington","requesting_party":"Anonymous requester","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought body camera footage and 911 recordings regarding an incident involving her at a YMCA.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Definition-of-subject-of-encounter/74512%2C%20issued%20February%206%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","redaction","privacy","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 6, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Jeffrey R. Jurgens\nCorporation Counsel\nCity of Bloomington\n115 East Washington Street, Suite 403\nBloomington,  Illinois 61701\njjurgens@cityblm.org\n\nRE:  FOIA Request for Review – 2022 PAC 74512; City No. 1737-2022\n\nDear\n\nand Mr. Jurgens: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2020)).   For the reasons that follow,  the\nPublic Access Bureau concludes that the City of Bloomington (City) did not improperly redact\nthe body camera footage responsive to\nrequest. \n\nNovember 23, 2022,  FOIA\n\nOn that date, \n\nsubmitted a FOIA request to the City seeking copies\n\nof a 911 call recording and body camera recordings concerning an incident involving her at a\nYMCA.  On December 2, 2022, the City responded, providing her with copies of responsive\nrecords but redacting certain information pursuant\nDecember 8, 2022, \n\nto sections 7(1)( c) and 7.5(cc)  of FOIA. 1 On\nsubmitted a Request for Review contesting the partial denial\n\n15 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13, \n2022; 102-1055, effective June 10, 2022; 5 ILCS 140/7.5(cc) (West 2021 Supp.), as amended by Public Acts 102 -\n813, effective May 13, 2022; 102-1042, effective June 3, 2022. \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 2\n\nof the body camera footage as to the redaction of some of the audio.  She explained that the\nincident involved the YMCA calling the police over her dispute with the front desk staff member\nabout whether she had properly checked in. \n\nOn December 15, 2022, this office forwarded a copy of the Request for Review to\nthe City and asked it to provide this office with an unredacted copy of the body camera recording\nfor our confidential review, together with a detailed explanation of the factual and legal bases for\nredacting audio from the recording.   On December 30, 2022,  this office received the requested\nmaterials.  On January 4, 2023, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2020);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\"  that the records are exempt\nfrom disclosure.  5 ILCS 140/1.2 (West 2020).  The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 (1997).  \n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act ( 5 ILCS 120/ 1 et seq. ( West\n2020)).  15 ILCS 205/7(c)(3) (West 2020).  FOIA governs the disclosure of existing public\nrecords;  it does not govern other matters such as the actions of YMCA staff members or\nallegations of defamation.  Accordingly, this determination letter is limited to analyzing whether\nFOIA permitted the City to redact portions of the audio of the body camera recording.  \n\nSection 7.5(cc)  of FOIA exempts from disclosure \"[ r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\"   Section 10- 20( b) of the Law Enforcement Officer- Worn Body Camera Act ( Body Camera\nAct)2 provides, in relevant part: \n\nRecordings made with the use of an officer-worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1) if the subject of the encounter has a reasonable\n\nexpectation of privacy,  at the time of the recording,  any\n\n250 ILCS 706/10-20(b) (West 2021 Supp.). \n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 3\n\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm,  use of force,  arrest or detention,  or\nresulting death or bodily harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness;  and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject' s\nlegal representative; \n\n2) except as provided in paragraph (1) of this\n\nsubsection ( b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention,  or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act;  and\n\n3) upon request,  the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. \n\nAny recording disclosed under the Freedom of Information\nAct shall be redacted to remove identification of any person that\nappears on the recording and is not the officer,  a subject of the\nencounter, or directly involved in the encounter. Nothing in this\nsubsection ( b) shall require the disclosure of any recording or\nportion of any recording which would be exempt from\ndisclosure under the Freedom of Information Act.  (Emphasis\nadded.) \n\nUnder the plain language of section 10-20(b) of the Body Camera Act, even when body camera\nfootage is potentially subject to disclosure under FOIA because the requester is the subject of the\nencounter under section 10-20(b)(3), a public body still may rely on any applicable FOIA\nexemptions to redact or withhold the footage. \n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 4\n\nIn its response to this office, the City asserted that it redacted the portions of the\n\nbody camera recording depicting the YMCA staff members because they are not the officer,  a\nsubject of the encounter, or directly involved in the encounter, per the language of section 10-\n20( b) as quoted above.   The City stated:  \" It is our understanding,  from talking with the City of\nBloomington Police Department, that the body camera video was not flagged per the Act, and\nonly portions of the video that the requester was not on were blurred and muted.\" 3 In her reply, \nquestioned how it could be that the staff members with whom she interacted were\nsent this office an e-\n\nnot directly involved in the encounter.   On January 10, 2023, \nmail stating that she knows the name of the front desk employee who was involved in the\nincident,  and that she recalled him and the facility manager. \n\nThis office has compared the redacted body camera recording that the City\n\nwith the full version.  In the redacted version, the video is completely\n\nprovided to\nmuted and somewhat blurred as the police officer drives to the YMCA,  enters the building and\ninteracts with the front desk employee for approximately 40 seconds as they walk towards the\nthe audio turns on\nlocker room.   When the body camera comes within view of\nand her image is not blurred, though everything around her remains somewhat blurred.  The\naudio captures the things said by\nand the facility manager or director, until\nare gathered,  the police officer explains that the incident does not sound criminal\ninstead is a matter of whether the YMCA wishes for\nresult of the check- in dispute;  the building manager or director confirms that the YMCA does\nwant her to do so.  After\ndiscuss the matter with the police officer for approximately one minute before the video ends.  \n\nthe police officer,  the front desk staff member, \nleaves.  While all of those individuals\nin nature,  but\n\nexits the frame, the two staff members continue to\n\nto leave for the day as a\n\nEven assuming that the two YMCA staff members whose images are blurred and\n\nwords are muted in the redacted recording were \"directly involved in the encounter\"  under\nsection 10- 20( b) of the Body Camera Act, the redacted audio is nonetheless exempt from\ndisclosure.  Section 7(1)(d)(iv) of FOIA4 exempts from disclosure information that would\nunavoidably disclose the identity of a confidential source,  confidential\ninformation furnished\nonly by the confidential source, or persons who file complaints with or provide information to\nadministrative,  investigative,  law enforcement,  or penal agencies.\"   This exemption allows law\nenforcement agencies to withhold the identities of persons who provide them with information.  \nSee Chicago Alliance for Neighborhood Safety v. City of Chicago,  348 Ill. App.  3d 188,  200- 01\n1st Dist. 2004) (names and addresses of beat meeting participants properly redacted because\n\nDeputy Bureau Chief, Office of the Attorney General, Public Access Bureau (December 21, 2022), at 1. \n\n3Letter from Jeffrey R. Jurgens, Corporation Counsel, City of Bloomington, to Joshua M. Jones, \n\n13, 2022; 102-1055, effective June 10, 2022. \n\n45 ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102 -791, effective May\n\n\fMr. Jeffrey R. Jurgens\nFebruary 6, 2023\nPage 5\n\nthey provided information to police department); see also, for example, Ill. Att'y Gen. PAC Req. \nRev.  Ltr. 56481,  issued January 25, 2019 ( identities of individuals who complained to police\nabout a person exempt from disclosure).  Further, the contents of such statements to the police\nmay be withheld if disclosure \" would necessarily result in the disclosure of the identity of the\nsource\"  of information and, therefore, \"redaction * * *  cannot be meaningfully accomplished.\"  \nCopley Press,  Inc. v. City of Springfield,  266 Ill. App 3d 421,  426 ( 4th Dist.  1994).   The section\n7(1)(d)(iv) exemption applies even if the person who submits the FOIA request is aware of the\nidentity of a complainant.   See,  for example,  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 23372,  issued\nAugust 21, 2013, at 2.  The Public Access Bureau has previously determined that body camera\nrecordings depicting individuals who provided information to law enforcement about an incident\nwere exempt from disclosure under section 7(1)(d)(iv) where redactions not suffice to conceal\ntheir identities.   Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. 74075,  issued January 17, 2023. \n\nIn this instance,  the City redacted the audio of the recording only when the two\nwas\n\ncomplainants were speaking with just the police officer, rather than when\npresent.   Disclosing the audio of these segments would unavoidably identify the complainants as\nhaving made these statements, as their identities are evident from their staff positions and\n\npersonal knowledge.   Although\n\nargues that she has the right to know\n\nwhat was said about her, FOIA does not require such disclosure; section 7(1)(d)(iv) exists to\npermit withholding such information,  even when the incident at issue is relatively minor in\nnature.  Thus, under these circumstances, the City did not improperly redact the audio of the\nto section 7(1)( d)( iv) of FOIA. \nbody camera footage pursuant\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.  This letter serves to close this file.  If you have\nany questions,  please contact me at joshua. jones@ilag. gov.   \n\nVery truly yours,  \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n74512 f 71div proper 75cc proper pd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Body-camera footage and 911 recordings of a YMCA incident","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74512/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 6, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Jeffrey R. Jurgens\nCorporation Counsel\nCity of Bloomington\n115 East Washington Street, Suite 403\nBloomington, Illinois 61701\njjurgens@cityblm.org\n\nRE: FOIA Request for Review – 2022 PAC 74512; City No. 1737-2022\n\nDear\n\nand Mr. Jurgens: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2020)). For the reasons that follow, the\nPublic Access Bureau concludes that the City of Bloomington (City) did not improperly redact\nthe body camera footage responsive to\nrequest. \n\nNovember 23, 2022, FOIA\n\nOn that date, \n\nsubmitted a FOIA request to the City seeking copies\n\nof a 911 call recording and body camera recordings concerning an incident involving her at a\nYMCA. On December 2, 2022, the City responded, providing her with copies of responsive\nrecords but redacting certain information pursuant\nDecember 8, 2022, \n\nto sections 7(1)(c) and 7.5(cc) of FOIA. 1 On\nsubmitted a Request for Review contesting the partial denial\n\n15 ILCS 140/7(1)(c) (West 2021 Supp.), as amended by Public Acts 102-791, effective May 13, \n2022; 102-1055, effective June 10, 2022; 5 ILCS 140/7.5(cc) (West 2021 Supp.), as amended by Public Acts 102 -\n813, effective May 13, 2022; 102-1042, effective June 3, 2022. \n\nof the body camera footage as to the redaction of some of the audio. She explained that the\nincident involved the YMCA calling the police over her dispute with the front desk staff member\nabout whether she had properly checked in. \n\nOn December 15, 2022, this office forwarded a copy of the Request for Review to\nthe City and asked it to provide this office with an unredacted copy of the body camera recording\nfor our confidential review, together with a detailed explanation of the factual and legal bases for\nredacting audio from the recording. On December 30, 2022, this office received the requested\nmaterials. On January 4, 2023, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2020); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2020). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act (5 ILCS 120/ 1 et seq. (West\n2020)). 15 ILCS 205/7(c)(3) (West 2020). FOIA governs the disclosure of existing public\nrecords; it does not govern other matters such as the actions of YMCA staff members or\nallegations of defamation. Accordingly, this determination letter is limited to analyzing whether\nFOIA permitted the City to redact portions of the audio of the body camera recording. \n\nSection 7.5(cc) of FOIA exempts from disclosure \"[ r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\" Section 10- 20(b) of the Law Enforcement Officer- Worn Body Camera Act (Body Camera\nAct)2 provides, in relevant part: \n\nRecordings made with the use of an officer-worn body\n\nrecording which is flagged, due to the filing of a complaint, \ndischarge of a firearm, use of force, arrest or detention, or\nresulting death or bodily harm, shall be disclosed in\naccordance with the Freedom of Information Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject's\nlegal representative; \n\n2) except as provided in paragraph (1) of this\n\nsubsection (b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. \n\nAny recording disclosed under the Freedom of Information\nAct shall be redacted to remove identification of any person that\nappears on the recording and is not the officer, a subject of the\nencounter, or directly involved in the encounter. Nothing in this\nsubsection (b) shall require the disclosure of any recording or\nportion of any recording which would be exempt from\ndisclosure under the Freedom of Information Act. (Emphasis\nadded.) \n\nUnder the plain language of section 10-20(b) of the Body Camera Act, even when body camera\nfootage is potentially subject to disclosure under FOIA because the requester is the subject of the\n\nIn its response to this office, the City asserted that it redacted the portions of the\n\nbody camera recording depicting the YMCA staff members because they are not the officer, a\nsubject of the encounter, or directly involved in the encounter, per the language of section 10-\n20(b) as quoted above. The City stated: \" It is our understanding, from talking with the City of\nBloomington Police Department, that the body camera video was not flagged per the Act, and\nonly portions of the video that the requester was not on were blurred and muted.\" 3 In her reply, \nquestioned how it could be that the staff members with whom she interacted were\nsent this office an e-\n\nnot directly involved in the encounter. On January 10, 2023, \nmail stating that she knows the name of the front desk employee who was involved in the\nincident, and that she recalled him and the facility manager. \n\nThis office has compared the redacted body camera recording that the City\n\nwith the full version. In the redacted version, the video is completely\n\nprovided to\nmuted and somewhat blurred as the police officer drives to the YMCA, enters the building and\ninteracts with the front desk employee for approximately 40 seconds as they walk towards the\nthe audio turns on\nlocker room. When the body camera comes within view of\nand her image is not blurred, though everything around her remains somewhat blurred. The\naudio captures the things said by\nand the facility manager or director, until\nare gathered, the police officer explains that the incident does not sound criminal\ninstead is a matter of whether the YMCA wishes for\nresult of the check- in dispute; the building manager or director confirms that the YMCA does\nwant her to do so. After\ndiscuss the matter with the police officer for approximately one minute before the video ends. \n\nthe police officer, the front desk staff member, \nleaves. While all of those individuals\nin nature, but\n\nexits the frame, the two staff members continue to\n\nto leave for the day as a\n\nEven assuming that the two YMCA staff members whose images are blurred and\n\nwords are muted in the redacted recording were \"directly involved in the encounter\" under\nsection 10- 20(b) of the Body Camera Act, the redacted audio is nonetheless exempt from\ndisclosure. Section 7(1)(d)(iv) of FOIA4 exempts from disclosure information that would\nunavoidably disclose the identity of a confidential source, confidential\ninformation furnished\nonly by the confidential source, or persons who file complaints with or provide information to\nadministrative, investigative, law enforcement, or penal agencies.\" This exemption allows law\nenforcement agencies to withhold the identities of persons who provide them with information. \nSee Chicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 200- 01\n1st Dist. 2004) (names and addresses of beat meeting participants properly redacted because\n\nDeputy Bureau Chief, Office of the Attorney General, Public Access Bureau (December 21, 2022), at 1. \n\n3 Letter from Jeffrey R. Jurgens, Corporation Counsel, City of Bloomington, to Joshua M. Jones, \n\n13, 2022; 102-1055, effective June 10, 2022. \n\n45 ILCS 140/7(1)(d)(iv) (West 2021 Supp.), as amended by Public Acts 102 -791, effective May\n\nthey provided information to police department); see also, for example, Ill. Att'y Gen. PAC Req. \nRev. Ltr. 56481, issued January 25, 2019 (identities of individuals who complained to police\nabout a person exempt from disclosure). Further, the contents of such statements to the police\nmay be withheld if disclosure \" would necessarily result in the disclosure of the identity of the\nsource\" of information and, therefore, \"redaction * * * cannot be meaningfully accomplished.\" \nCopley Press, Inc. v. City of Springfield, 266 Ill. App 3d 421, 426 (4th Dist. 1994). The section\n7(1)(d)(iv) exemption applies even if the person who submits the FOIA request is aware of the\nidentity of a complainant. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 23372, issued\nAugust 21, 2013, at 2. The Public Access Bureau has previously determined that body camera\nrecordings depicting individuals who provided information to law enforcement about an incident\nwere exempt from disclosure under section 7(1)(d)(iv) where redactions not suffice to conceal\ntheir identities. Ill. Att' y Gen. PAC Req. Rev. Ltr. 74075, issued January 17, 2023. \n\nIn this instance, the City redacted the audio of the recording only when the two\nwas\n\ncomplainants were speaking with just the police officer, rather than when\npresent. Disclosing the audio of these segments would unavoidably identify the complainants as\nhaving made these statements, as their identities are evident from their staff positions and\n\npersonal knowledge. Although\n\nargues that she has the right to know\n\nwhat was said about her, FOIA does not require such disclosure; section 7(1)(d)(iv) exists to\npermit withholding such information, even when the incident at issue is relatively minor in\nnature. Thus, under these circumstances, the City did not improperly redact the audio of the\nto section 7(1)(d)(iv) of FOIA. \nbody camera footage pursuant\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this file. If you have\nany questions, please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n74512 f 71div proper 75cc proper pd"}
{"id":997,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-02-06","case_number":null,"request_numbers":["74691"],"title":"Rantoul Police Department properly redacted witness contact info and birth dates from crash report","filename":"74691, issued February 6, 2023.pdf","rel_path":null,"word_count":1052,"summary":"The requester challenged the Rantoul Police Department's redaction of witness information in a crash report, and the PAC determined that while some redactions were improper, no further action was necessary as the file was closed.","plain_summary":"A requester asked the Rantoul Police Department for a crash report, but the Department redacted witness contact information and birth dates. The Illinois Attorney General's Public Access Bureau found that the Department did not violate FOIA by redacting that information, because FOIA only requires disclosure of witness names, and the other details are exempt. The Bureau also noted that the Department redacted descriptive information (like height and eye color) and requested that the Department follow guidance to disclose such non-private details in future responses, but took no further action in this case.","holding":"The PAC determined that the Department did not violate FOIA by redacting witness contact information and birth dates, and concluded that no further action was warranted; it did not rule that the redaction of descriptive information was improper, but only requested future compliance with guidance.","legal_question":"Whether the Rantoul Police Department properly redacted witness descriptive information and contact details from a crash report under FOIA.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7(1)(d)(iv)"],"public_body":"Rantoul Police Department","requesting_party":"Ms. Deanna Wolff","pac_outcome":"Closed no further action","pac_law_type":null,"subject_category":"police records","subject_description":"The redaction of witness personal and descriptive information in a police crash report.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_d/7_1_d_iv/74691%2C%20issued%20February%206%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police report","crash report","redaction","witness information","personal information"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 6, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMs.  Deanna Wolff\nKanoski Bresney\n[street address redacted for site publication -- see original PDF]\ndeanna@kanoski.com\n\nRE:  FOIA Request for Review – 2022 PAC 74691\n\nDear Ms. Wolff: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)).   For the reasons set forth below,  the\nPublic Access Bureau has determined that no further action is warranted in this matter. \n\nOn November 30, 2022, you submitted a FOIA request to the Rantoul Police\n\nDepartment ( Department)  seeking various records related to crash report number 22- 09584.   On\nDecember 12, 2022, the Department provided you with responsive records with portions\nredacted.   The Department did not identify a legal basis for those redactions under section 7 of\nFOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-694, effective January\n7, 2022,  revised February 3, 2022;  102- 791,  effective May 13, 2022;  102- 1055,  effective June\n10, 2022).  On December 16, 2022, this office received your Request for Review contesting the\nDepartment' s redaction of witness names and contact information. \n\nSection 7(1)( d)( iv) of FOIA ( 5 ILCS 140/ 7(1)( d)( iv) (West 2021 Supp.),  as\n\namended by Public Acts 102-694, effective January 7, 2022, revised February 3, 2022; 102-791, \neffective May 13, 2022;  102- 1055,  effective June 10, 2022)  exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would:   \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs.  Deanna Wolff\nFebruary 6, 2023\nPage 2\n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential information furnished only\nby the confidential source,  or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement,  or penal agencies;  except that the\nidentities of witnesses to traffic accidents, traffic\naccident reports,  and rescue reports shall be provided\nby agencies of local government, except when disclosure\nwould interfere with an active criminal\ninvestigation\nconducted by the agency that is the recipient of the\nrequest[.]  ( Emphasis added.) \n\nThe Public Access Bureau has previously determined that \" identity\"  in section 7(1)( d)( iv) refers\nto a witness' name exclusively, not his or her address, phone number, or other personal contact\ninformation.   See,  e.g., Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 11566,  issued February 18,  2011,  at 3.   \n\nThis office' s review of the redacted records finds that the Department provided\n\nthe names of witnesses, but redacted other personal contact and identifying information. \n\nThough the Department failed to cite a statutory exemption for its redactions, \nsection 7(1)( b)  of FOIA ( 5 ILCS 140/ 7(1)( b) ( West 2021 Supp.),  as amended by Public Acts\n102-694, effective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; \n102- 1055,  effective June 10,  2022)  exempts from disclosure \" private information,  unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order\nSection 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) ( West 2020))  defines \" private information\"  as: \n\nU] nique identifiers,  including a person' s social security number, \ndriver's license number, employee identification number, \nbiometric identifiers,  personal financial\nor other access codes, medical records, home or personal\ntelephone numbers,  and personal email addresses.   Private\ninformation also includes home address and personal license\nplates,  except as otherwise provided by law or when compiled\nwithout possibility of attribution to any person.  (Emphasis added.) \n\ninformation,  passwords\n\nAdditionally, the Attorney General has determined that dates of birth are exempt\n\nfrom disclosure under section 7(1)( c) of FOIA1 ( 5 ILCS 140/ 7(1)( c) ( West 2021 Supp.),  as\namended by Public Acts 102-694, effective January 7, 2022, revised February 3, 2022; 102-791, \n\nunwarranted invasion of personal privacy.   \n\n1Section 7(1)(c) exempts personal information, the disclosure of which would constitute a clearly\n\n\fs. Deanna Wolff\nFebruary 6, 2023\nPage 3\n\neffective May 13, 2022;  102- 1055,  effective June 10,  2022).   See Ill. Att'y Gen.  Pub.  Acc.  Op. \nNo. 16-009, issued November 7, 2016, at 12. \n\nBecause section 7(1)(d)(iv) of FOIA requires the Department to provide only the\nnames of witnesses to traffic accidents,  the Department did not violate FOIA by redacting from\nthe records you requested contact information and birth dates that are exempt from disclosure\npursuant\naction is warranted in this matter. \n\nto section 7(1)( b)  or 7(1)( c) of FOIA.   Accordingly,  this office concludes that no further\n\nThe Office of the Public Access Counselor, however, is also charged with\n\nproviding advice and education to both the public and public officials.   See 15 ILCS 205/ 7(a), \nb), (c) (West 2020).  In that capacity, this office notes that the Department also redacted\ndescriptive information about witnesses,  including sex,  height,  weight,  hair color,  and eye color.  \nThis office has previously determined that this information is not highly personal in nature and\nthat disclosure of this information would not be objectionable to a reasonable person. 2 See,  e.g., \nIll. Att'y Gen. PAC Req. Rev. Ltr. 39699, issued July 10, 2018, at 4.  This office requests that the\nDepartment\n\nto adhere to this guidance in responding to future FOIA requests. \n\nThis letter serves to close this file.  If you have questions,  please contact me at the\n\nChicago address on the bottom of the first page of this letter. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n74691 f no fi war pd\n\ncc: \n\nVia electronic mail\nMs.  Terri Neil\nDeputy FOIA Officer\nRantoul Police Department\n109 East Grove Avenue\nRantoul,  Illinois 61866\npolice@myrantoul.com\n\n2However,  the Public Access Bureau has consistently determined that an individual's race is highly\n\npersonal information that may be redacted pursuant to section 7(1)(c) of FOIA.  See, e.g., Ill. Att'y Gen. PAC Req. \nRev. Ltr. 18274, issued March 27, 2012.    \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Redacted witness information in a police crash report","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74691/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nFebruary 6, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\nMs. Deanna Wolff\nKanoski Bresney\n[street address redacted for site publication -- see original PDF]\ndeanna@kanoski.com\n\nRE: FOIA Request for Review – 2022 PAC 74691\n\nDear Ms. Wolff: \n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau has determined that no further action is warranted in this matter. \n\nOn November 30, 2022, you submitted a FOIA request to the Rantoul Police\n\nDepartment (Department) seeking various records related to crash report number 22- 09584. On\nDecember 12, 2022, the Department provided you with responsive records with portions\nredacted. The Department did not identify a legal basis for those redactions under section 7 of\nFOIA (5 ILCS 140/7 (West 2021 Supp.), as amended by Public Acts 102-694, effective January\n7, 2022, revised February 3, 2022; 102- 791, effective May 13, 2022; 102- 1055, effective June\n10, 2022). On December 16, 2022, this office received your Request for Review contesting the\nDepartment's redaction of witness names and contact information. \n\nSection 7(1)(d)(iv) of FOIA (5 ILCS 140/ 7(1)(d)(iv) (West 2021 Supp.), as\n\namended by Public Acts 102-694, effective January 7, 2022, revised February 3, 2022; 102-791, \neffective May 13, 2022; 102- 1055, effective June 10, 2022) exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential information furnished only\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies; except that the\nidentities of witnesses to traffic accidents, traffic\naccident reports, and rescue reports shall be provided\nby agencies of local government, except when disclosure\nwould interfere with an active criminal\ninvestigation\nconducted by the agency that is the recipient of the\nrequest[.] (Emphasis added.) \n\nThe Public Access Bureau has previously determined that \" identity\" in section 7(1)(d)(iv) refers\nto a witness' name exclusively, not his or her address, phone number, or other personal contact\ninformation. See, e.g., Ill. Att'y Gen. PAC Req. Rev. Ltr. 11566, issued February 18, 2011, at 3. \n\nThis office's review of the redacted records finds that the Department provided\n\nthe names of witnesses, but redacted other personal contact and identifying information. \n\nThough the Department failed to cite a statutory exemption for its redactions, \nsection 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b) (West 2021 Supp.), as amended by Public Acts\n102-694, effective January 7, 2022, revised February 3, 2022; 102-791, effective May 13, 2022; \n102- 1055, effective June 10, 2022) exempts from disclosure \" private information, unless\ndisclosure is required by another provision of this Act, a State or federal law or a court order\nSection 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) (West 2020)) defines \" private information\" as: \n\nU] nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, \nbiometric identifiers, personal financial\nor other access codes, medical records, home or personal\ntelephone numbers, and personal email addresses. Private\ninformation also includes home address and personal license\nplates, except as otherwise provided by law or when compiled\nwithout possibility of attribution to any person. (Emphasis added.) \n\ninformation, passwords\n\nAdditionally, the Attorney General has determined that dates of birth are exempt\n\nfrom disclosure under section 7(1)(c) of FOIA1 (5 ILCS 140/ 7(1)(c) (West 2021 Supp.), as\namended by Public Acts 102-694, effective January 7, 2022, revised February 3, 2022; 102-791, \n\nunwarranted invasion of personal privacy. \n\n1 Section 7(1)(c) exempts personal information, the disclosure of which would constitute a clearly\n\neffective May 13, 2022; 102- 1055, effective June 10, 2022). See Ill. Att'y Gen. Pub. Acc. Op. \nNo. 16-009, issued November 7, 2016, at 12. \n\nBecause section 7(1)(d)(iv) of FOIA requires the Department to provide only the\nnames of witnesses to traffic accidents, the Department did not violate FOIA by redacting from\nthe records you requested contact information and birth dates that are exempt from disclosure\npursuant\naction is warranted in this matter. \n\nto section 7(1)(b) or 7(1)(c) of FOIA. Accordingly, this office concludes that no further\n\nThe Office of the Public Access Counselor, however, is also charged with\n\nproviding advice and education to both the public and public officials. See 15 ILCS 205/ 7(a), \nb), (c) (West 2020). In that capacity, this office notes that the Department also redacted\ndescriptive information about witnesses, including sex, height, weight, hair color, and eye color. \nThis office has previously determined that this information is not highly personal in nature and\nthat disclosure of this information would not be objectionable to a reasonable person. 2 See, e.g., \nIll. Att'y Gen. PAC Req. Rev. Ltr. 39699, issued July 10, 2018, at 4. This office requests that the\nDepartment\n\nto adhere to this guidance in responding to future FOIA requests. \n\nThis letter serves to close this file. If you have questions, please contact me at the\n\nChicago address on the bottom of the first page of this letter. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n74691 f no fi war pd\n\ncc: \n\nVia electronic mail\nMs. Terri Neil\nDeputy FOIA Officer\nRantoul Police Department\n109 East Grove Avenue\nRantoul, Illinois 61866\npolice@myrantoul.com\n\n2 However, the Public Access Bureau has consistently determined that an individual's race is highly\n\npersonal information that may be redacted pursuant to section 7(1)(c) of FOIA. See, e.g., Ill. Att'y Gen. PAC Req. \nRev. Ltr. 18274, issued March 27, 2012."}
{"id":998,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-01-05","case_number":null,"request_numbers":["74771"],"title":"Village of Wayne did not violate FOIA by refusing to provide electronic copies of paper records","filename":"74771, issued January 5, 2023.pdf","rel_path":null,"word_count":560,"summary":"The requester sought electronic copies of election packets, but the Village of Wayne denied the request because the records are only maintained in paper format. The PAC determined the Village acted properly because FOIA does not require a public body to convert paper records into an electronic format.","plain_summary":"A citizen asked the Village of Wayne for electronic copies of election documents. The Village refused, stating they only keep these records on paper. The Attorney General's office agreed with the Village, explaining that FOIA only requires public bodies to provide electronic copies if the records are already kept in an electronic format.","holding":"The Village of Wayne did not violate FOIA by refusing to provide electronic copies of records that are maintained solely in paper format.","legal_question":"Whether a public body is required under FOIA to provide electronic copies of records that are maintained solely in paper format.","disposition":"no_violation","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Wayne","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"electronic records","subject_description":"The requester sought electronic copies of election packets filed with the Village Clerk.","ocr_status":"ok","ocr_quality":95.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_a/74771%2C%20issued%20January%205%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["electronic format","paper records","election packets","FOIA request"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJanuary 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:  FOIA Request for Review – 2022 PAC 74771\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2020)).   For the reasons stated below,  the\nPublic Access Bureau has determined that your Request for Review is unfounded. \n\nOn December 12, 2022, you submitted a FOIA request to the Village of Wayne\nVillage)  seeking electronic copies of all election packets filed with the Clerk on that date.   On\nDecember 14, 2022, the Village denied your request for electronic copies, but stated that, \nconsistent with section 10- 7 of the Illinois Election Code ( 10 ILCS 5/10- 7 (West 2020)),  the\npackets are available for public inspection.  On December 22, 2022, the Public Access Bureau\nreceived your Request for Review contesting the Village' s response. \n\nSection 6(a)  of FOIA ( 5 ILCS 140/ 6(a) ( West 2020))  provides,  in relevant part: \n\nWhen a person requests a copy of a record maintained in\n\nan electronic format, the public body shall furnish it in the\nelectronic format specified by the requester,  if feasible.  If it is not\nfeasible to furnish the public records in the specified electronic\nformat,  then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. ( Emphasis added.) \n\n500 South Second Street, Springfield,  Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529 -6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fJanuary 5, 2023\nPage 2\n\nConstruing the plain language of this provision,  the Public Access Bureau has previously\ndetermined that it \"requires a public body to provide records in electronic format if the public\nbody maintains those records in electronic format.  * * *  [ S] ection 6(a)  does not require a public\nbody to furnish in electronic format records maintained solely in paper format, even if the public\nbody has the resources to reproduce those records in PDF.\"  ( Emphasis in original.).   Ill. Att' y\nGen. PAC Req. Rev. Ltr. 28697, issued April 18, 2014, at 2.  \n\nOn January 5, 2023, the Village Clerk confirmed in a telephone conversation with\nan Assistant Attorney General\nin the Public Access Bureau that the Village maintains the records\nyou are seeking only in paper format.  Because the Village does not maintain these records in an\nelectronic format,  the Village was not required to provide you with electronic copies.  \nAccordingly, this office has determined that this Request for Review is unfounded.  You may\nwish to inspect the records at the Clerk' s Office or request copies of the records in paper format. \n\nThis file is closed.   If you have any questions,  you may contact me at ( 773)  590-\n\n7878 or benjamin.silver@ilag.gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n74771 f unf mun\n\ncc: \n\nVia electronic mail\nMs.  Gina Panek\nDeputy Clerk\nVillage of Wayne\n5N430 Railroad Street\nWayne,  Illinois 60184\ndep.clerk@villageofwayne.org\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Election packets filed with a village clerk","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-74771/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJanuary 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2022 PAC 74771\n\nDear\n\nThis determination is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2020)). For the reasons stated below, the\nPublic Access Bureau has determined that your Request for Review is unfounded. \n\nOn December 12, 2022, you submitted a FOIA request to the Village of Wayne\nVillage) seeking electronic copies of all election packets filed with the Clerk on that date. On\nDecember 14, 2022, the Village denied your request for electronic copies, but stated that, \nconsistent with section 10- 7 of the Illinois Election Code (10 ILCS 5/10- 7 (West 2020)), the\npackets are available for public inspection. On December 22, 2022, the Public Access Bureau\nreceived your Request for Review contesting the Village's response. \n\nSection 6(a) of FOIA (5 ILCS 140/ 6(a) (West 2020)) provides, in relevant part: \n\nWhen a person requests a copy of a record maintained in\n\nan electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is not\nfeasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. (Emphasis added.) \n\nConstruing the plain language of this provision, the Public Access Bureau has previously\ndetermined that it \"requires a public body to provide records in electronic format if the public\nbody maintains those records in electronic format. * * * [ S] ection 6(a) does not require a public\nbody to furnish in electronic format records maintained solely in paper format, even if the public\nbody has the resources to reproduce those records in PDF.\" (Emphasis in original.). Ill. Att' y\nGen. PAC Req. Rev. Ltr. 28697, issued April 18, 2014, at 2. \n\nOn January 5, 2023, the Village Clerk confirmed in a telephone conversation with\nan Assistant Attorney General\nin the Public Access Bureau that the Village maintains the records\nyou are seeking only in paper format. Because the Village does not maintain these records in an\nelectronic format, the Village was not required to provide you with electronic copies. \nAccordingly, this office has determined that this Request for Review is unfounded. You may\nwish to inspect the records at the Clerk's Office or request copies of the records in paper format. \n\nThis file is closed. If you have any questions, you may contact me at (773) 590-\n\n7878 or benjamin.silver@ilag.gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n74771 f unf mun\n\ncc: \n\nVia electronic mail\nMs. Gina Panek\nDeputy Clerk\nVillage of Wayne\n5N430 Railroad Street\nWayne, Illinois 60184\ndep.clerk@villageofwayne.org"}
{"id":999,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2025-03-27","case_number":null,"request_numbers":["75318"],"title":"City of Elmhurst properly withheld juvenile police records under 7.5(bb)","filename":"75318, issued March 27, 2025.pdf","rel_path":null,"word_count":807,"summary":"The requester sought a police incident report involving her son, which the City of Elmhurst denied citing the Juvenile Court Act. The PAC determined that the City properly withheld the records because the Juvenile Court Act prohibits the disclosure of juvenile law enforcement records to a victim's parent when the perpetrator is also a minor.","plain_summary":"A mother requested a police report regarding an incident involving her son, but the City denied the request because the records involved juvenile suspects. The Attorney General's office agreed with the City, explaining that state law strictly protects the confidentiality of juvenile police records, even from the parents of victims. Consequently, the City was legally required to withhold the information.","holding":"The City of Elmhurst did not improperly deny the FOIA request.","legal_question":"Whether the City of Elmhurst properly withheld a juvenile law enforcement record under section 7.5(bb) of FOIA and the Juvenile Court Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/7.5(bb)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7.5(bb)"],"public_body":"City of Elmhurst","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The request sought a police incident report involving a juvenile.","ocr_status":"ok","ocr_quality":95.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_bb/75318%2C%20issued%20March%2027%2C%202025.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["juvenile records","police report","privacy","FOIA exemption"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"March 27, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Amanda Melone\nDeputy City Clerk\nCity of Elmhurst\n209 North York Street\nElmhurst, Illinois 60126\nFOIA@elmhurst. org\n\nRE:  FOIA Request for Review – 2023 PAC 75318\n\nDear\n\nand Ms. Melone: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)).   For the reasons stated below, \nthe Public Access Bureau concludes that the City of Elmhurst (City) did not improperly deny\n\nFOIA request. \n\nsubmitted a FOIA request to the City\nseeking a copy of report number ELPC2204120.  On November 30, 2022, the City denied\n\nOn November 21, 2022, \n\nrequest\n\nin its entirety pursuant\n\n2022).  In her Request for Review, \ninvolved her son.  \n\nto section 7.5(bb)  of FOIA ( 5 ILCS 140/ 7.5(bb) ( West\ncontested the denial because the incident\n\nOn February 27, 2023,  this office forwarded a copy of the Request for Review to\nthe City and asked it to provide to this office for our confidential review copies of the withheld\n\n\fMs. Amanda Melone\nMarch 27, 2025\nPage 2\n\nrecords along with a detailed written explanation of the factual and legal bases for withholding\nthose records pursuant\nwithheld incident report for this office's confidential review, and furnished a written response, \nwhich noted that\nforwarded a copy of the City's written response to\n\nto section 7.5(bb)  of FOIA.   On March 8, 2023,  the City provided the\n\nis the mother of the juvenile victim.   Subsequently,  this office\n\nshe did not reply.  \n\nSection 7.5(bb) of FOIA exempts from disclosure: \"[ i]nformation which is or was\n\nprohibited from disclosure by the Juvenile Court Act of 1987 [( JCA)].\"   Section 1-7(A) of the\nJCA (705 ILCS 405/1-7(A) (West 2022) provides:   \n\nAll juvenile law enforcement records which have not been\n\nexpunged are confidential and may never be disclosed to the\ngeneral public or otherwise made widely available. Juvenile law\nenforcement\nrecords may be obtained only under this Section and\nSection 1-8 and Part 9 of Article V of this Act, when their use is\nneeded for good cause and with an order from the juvenile court, \nas required by those not authorized to retain them. Inspection, \ncopying,  and disclosure of juvenile law enforcement\nrecords\nmaintained by law enforcement agencies or records of municipal\nordinance violations maintained by any State,  local,  or municipal\nagency that relate to a minor who has been investigated, \narrested,  or taken into custody before his or her 18th birthday\nshall be restricted to the following[.]  (Emphasis added.) \n\nThe class of persons who are permitted access to those records are then enumerated, and while a\nminor who is the subject of the investigation,  arrest,  or custodial detention along with that\nminor's parents are among the statutorily authorized parties who may receive the records, the\nexceptions to this confidentiality provision do not include the minor victim of a crime or the\nminor victim's parents.1 Accordingly, the JCA does not authorize a minor who is an alleged\nvictim,  or the alleged victim' s parents,  to receive juvenile law enforcement\nrecords when the\nsuspect or perpetrator is also a minor.    \n\nThis office's confidential review of the withheld records confirms that incident\nchild is\n\nreport number ELPC2204120 is a juvenile law enforcement\nlisted as the victim in the report, and that another minor is included in the report as the subject of\n\nrecord,  that\n\n1See NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department, 2019 IL App (1st) 181426\n\ndeciding that the JCA \"governs the confidentiality of law enforcement records that focus on a minor as the subject\nof an investigation, arrest, or custodial detention.\").   See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 74728, issued\nJanuary 25, 2023, at 2 (the JCA does not authorize a minor victim, or the victim's parents, to receive juvenile law\nenforcement records when the suspect or perpetrator is also a juvenile);  Ill. Att'y Gen. PAC Req. Rev. Ltr. 84341, \nissued January 3, 2025, at 2 (records that relate to minors who have been investigated,  arrested,  or taken into custody\nare confidential and cannot be disclosed to a parent of a victim without an order from the juvenile court). \n\n\fMs. Amanda Melone\nMarch 27, 2025\nPage 3\n\nthe investigation and arrest.  Because the JCA specifically prohibits the City from disclosing the\nreport to the parent of the victim where the suspect or perpetrator is also a minor,  the City did not\nimproperly withhold the report in response to\n\nFOIA request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   Please contact me at ( 312)  \n814-5201 or at the Chicago address on the first page of this letter if you have questions.  \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n75318 f 75bb proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A police incident report involving a juvenile","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75318/","full_text":"March 27, 2025\n\nVia electronic mail\n\nVia electronic mail\nMs. Amanda Melone\nDeputy City Clerk\nCity of Elmhurst\n209 North York Street\nElmhurst, Illinois 60126\nFOIA@elmhurst. org\n\nRE: FOIA Request for Review – 2023 PAC 75318\n\nDear\n\nand Ms. Melone: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2023 Supp.)). For the reasons stated below, \nthe Public Access Bureau concludes that the City of Elmhurst (City) did not improperly deny\n\nFOIA request. \n\nsubmitted a FOIA request to the City\nseeking a copy of report number ELPC2204120. On November 30, 2022, the City denied\n\nOn November 21, 2022, \n\nrequest\n\nin its entirety pursuant\n\n2022). In her Request for Review, \ninvolved her son. \n\nto section 7.5(bb) of FOIA (5 ILCS 140/ 7.5(bb) (West\ncontested the denial because the incident\n\nOn February 27, 2023, this office forwarded a copy of the Request for Review to\nthe City and asked it to provide to this office for our confidential review copies of the withheld\n\nrecords along with a detailed written explanation of the factual and legal bases for withholding\nthose records pursuant\nwithheld incident report for this office's confidential review, and furnished a written response, \nwhich noted that\nforwarded a copy of the City's written response to\n\nto section 7.5(bb) of FOIA. On March 8, 2023, the City provided the\n\nis the mother of the juvenile victim. Subsequently, this office\n\nshe did not reply. \n\nSection 7.5(bb) of FOIA exempts from disclosure: \"[ i]nformation which is or was\n\nprohibited from disclosure by the Juvenile Court Act of 1987 [(JCA)].\" Section 1-7(A) of the\nJCA (705 ILCS 405/1-7(A) (West 2022) provides: \n\nAll juvenile law enforcement records which have not been\n\nexpunged are confidential and may never be disclosed to the\ngeneral public or otherwise made widely available. Juvenile law\nenforcement\nrecords may be obtained only under this Section and\nSection 1-8 and Part 9 of Article V of this Act, when their use is\nneeded for good cause and with an order from the juvenile court, \nas required by those not authorized to retain them. Inspection, \ncopying, and disclosure of juvenile law enforcement\nrecords\nmaintained by law enforcement agencies or records of municipal\nordinance violations maintained by any State, local, or municipal\nagency that relate to a minor who has been investigated, \narrested, or taken into custody before his or her 18th birthday\nshall be restricted to the following[.] (Emphasis added.) \n\nThe class of persons who are permitted access to those records are then enumerated, and while a\nminor who is the subject of the investigation, arrest, or custodial detention along with that\nminor's parents are among the statutorily authorized parties who may receive the records, the\nexceptions to this confidentiality provision do not include the minor victim of a crime or the\nminor victim's parents.1 Accordingly, the JCA does not authorize a minor who is an alleged\nvictim, or the alleged victim's parents, to receive juvenile law enforcement\nrecords when the\nsuspect or perpetrator is also a minor. \n\nThis office's confidential review of the withheld records confirms that incident\nchild is\n\nreport number ELPC2204120 is a juvenile law enforcement\nlisted as the victim in the report, and that another minor is included in the report as the subject of\n\nrecord, that\n\n1 See NBC Subsidiary (WMAQ-TV) LLC v. Chicago Police Department, 2019 IL App (1st) 181426\n\ndeciding that the JCA \"governs the confidentiality of law enforcement records that focus on a minor as the subject\nof an investigation, arrest, or custodial detention.\"). See also Ill. Att'y Gen. PAC Req. Rev. Ltr. 74728, issued\nJanuary 25, 2023, at 2 (the JCA does not authorize a minor victim, or the victim's parents, to receive juvenile law\nenforcement records when the suspect or perpetrator is also a juvenile); Ill. Att'y Gen. PAC Req. Rev. Ltr. 84341, \nissued January 3, 2025, at 2 (records that relate to minors who have been investigated, arrested, or taken into custody\nare confidential and cannot be disclosed to a parent of a victim without an order from the juvenile court). \n\nthe investigation and arrest. Because the JCA specifically prohibits the City from disclosing the\nreport to the parent of the victim where the suspect or perpetrator is also a minor, the City did not\nimproperly withhold the report in response to\n\nFOIA request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. Please contact me at (312) \n814-5201 or at the Chicago address on the first page of this letter if you have questions. \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n75318 f 75bb proper mun"}
{"id":1000,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-04","case_number":null,"request_numbers":["75330"],"title":"City of Bloomington improperly redacted body camera footage under 7(1)(c) and 7.5(cc)","filename":"75330, issued October 4, 2023.pdf","rel_path":null,"word_count":2243,"summary":"The requester challenged the City of Bloomington's extensive blurring of body camera footage, and the PAC determined the City improperly redacted the records.","plain_summary":"A citizen requested body camera footage from a police encounter, but the City of Bloomington blurred out much of the video, claiming privacy exemptions. The Attorney General's office reviewed the footage and decided the City went too far, as the video showed a public interaction that did not involve highly personal or private behavior. The City was told that it could not legally hide the identity of the person involved in that specific encounter.","holding":"The City of Bloomington improperly redacted body camera footage by blurring the identity of an individual who interacted with officers during a public encounter.","legal_question":"Whether the City of Bloomington properly applied FOIA exemptions 7(1)(c) and 7.5(cc) to justify extensive blurring of police body camera footage.","disposition":"violation_found","primary_statute":["5 ILCS 140/7","50 ILCS 706/10-20"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)","7.5(cc)"],"public_body":"City of Bloomington","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought unredacted body camera footage of a police encounter that occurred on a public street.","ocr_status":"ok","ocr_quality":97.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_cc/Flagged-reasonable-expectation-of-privacy/75330%2C%20issued%20October%204%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["body camera","police records","redaction","privacy"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 4, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Jeffrey R. Jurgens\nCorporation Counsel\nCity of Bloomington\n115 East Washington Street, Suite 403\nBloomington,  Illinois 61701\nlegal@cityblm.org\n\nRE:  FOIA Request for Review – 2022 PAC 75330\n\nDear\n\nand Mr. Jurgens: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons stated below,  the\nPublic Access Counselor concludes that the City of Bloomington (City) improperly redacted\nrecords responsive to\n\nNovember 27, 2022,  FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the City seeking body\ncamera footage from two specified officers in connection with an incident that occurred on\nSeptember 11, 2022.   On December 5, 2022,  the City provided body camera recordings with\nportions redacted pursuant to sections 7(1)(c) and 7.5(cc) of FOIA (5 ILCS 140/7(1)(c) (West\n2022);  5 ILCS 140/ 7.5(cc) ( West 2022)).   On February 2, 2023,  this office received\nRequest for Review contesting the City's redaction of portions of the body camera recordings.  \n\nstated objection was that the recordings he received were extensively blurred.  \n\nOn February 14, 2023,  the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the City and requested both unredacted and redacted copies of the recordings for\nthis office's confidential review, along with a detailed explanation of the factual and legal bases\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 2\n\nfor the asserted exemptions.   On February 27, 2023,  the City responded.   On March 8, 2023,  this\noffice forwarded the City's response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"   5 ILCS 140/ 1.2 ( West 2022);  see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body \"has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/1.2 (West 2020).  The exemptions from disclosure are to be narrowly construed.  Lieber v. \nBoard of Trustees of Southern Illinois University,  176 Ill. 2d 401,  407 ( 1997). \n\nSection 7.5(cc)  of FOIA exempts from disclosure \"[ r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\"   Section 10- 20( b)  of the Law Enforcement Officer- Worn Body Camera Act ( Body Camera\nAct)1 provides, in relevant part: \n\nRecordings made with the use of an officer-worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1)  if the subject of the encounter has a\nreasonable expectation of privacy, at the time of the\nrecording,  any recording which is flagged,  due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention,  or resulting death or bodily harm,  shall\nbe disclosed in accordance with the Freedom of\nInformation Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness;  and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject' s\nlegal representative; \n\n2) except as provided in paragraph (1) of this\nsubsection ( b), any recording which is flagged due to the\nfiling of a complaint, discharge of a firearm, use of force, \n\n150 ILCS 706/10-20(b) (West 2022). \n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 3\n\narrest or detention,  or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act;  and\n\n3)  upon request,  the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative.  ( Emphasis added.) \n\nThus,  sections 10- 20( b)( 1) and 10- 20( b)( 2) generally require the disclosure of flagged\nrecordings, but the consent of the subject of the underlying encounter is also required if the\nsubject had a reasonable expectation of privacy at the time of the recording.  \n\nSection 10- 20( b)  further provides,  in pertinent part: \n\nAny recording disclosed under the Freedom of Information\nAct shall be redacted to remove identification of any person\nthat appears on the recording and is not the officer,  a\nsubject of the encounter,  or directly involved in the\nencounter.  Nothing in this subsection (b) shall require\nthe disclosure of any recording or portion of any\nrecording which would be exempt from disclosure\nunder the Freedom of Information Act.  (Emphasis\nadded.) \n\nThe plain language of this section authorizes public bodies to redact portions of recordings that\nare exempt from disclosure under the various exemptions in FOIA other than section 7.5(cc) \neven if they are not prohibited from being disclosed by the Body Camera Act or section. \n\nIn its response to this office, the City acknowledged that it had blurred the images\nthe identities of persons in the videos who are not the subjects of the\n\nin the recordings to conceal\nencounter.  The City further argued that it needed to blur even the subject(s) of the encounter\nwas a subject.   The City also offered to provide a\nbecause it could not confirm that\nrevised copy of the recordings if\npresents identification to verify and match his\nidentity to the video.   The City did not dispute\nand Request for Review that these recordings are flagged due to the filing of a complaint. \n\ncontention in both his FOIA request\n\nSection 10-20(b)(1) of the Body Camera Act only prohibits disclosure of a\n\nflagged recording without the consent of the subject if the subject \" has a reasonable expectation\n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 4\n\nof privacy,  at the time of the recording[.]\"   This office has previously determined that a subject\nhas a reasonable expectation of privacy in his own home.  See Ill. Att'y Gen. PAC Req. Rev. Ltr. \n60599,  issued January 10, 2020.   There is a lesser expectation of privacy in public settings.   See\nIll. Att'y Gen. PAC Req. Rev. Ltr. 42379, issued September 6, 2016, at 4 (sheriff's office\nimproperly denied a video of a hallway inside a courthouse under the exemption in section\n7(1)(c) of FOIA,2 for information that would constitute an unwarranted invasion of personal\nprivacy if disclosed,  noting that \"[ i]ndeed,  there is no indication that a member of the public who\nwas present at the time of the recordings could not have viewed and recorded the same\nactivities\");  see also Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 34486,  issued July 2, 2015,  at 5 (school\ndistrict did not meet its burden of showing that video of the outside of a school after school hours\nwas exempt under section 7(1)( c) when no evidence suggested that area was not fully visible to\nthe public). \n\nThe recordings responsive to\n\nFOIA request occurred on a busy public\n\nstreet.   The subject of the recording was not detained or incapacitated.   Instead,  he was\nvoluntarily present and engaged in an extended interaction with police as bystanders walked by, \neven after police repeatedly ordered him to leave the area.   Under these circumstances,  the\nsubject of the recording does not have a reasonable expectation of privacy at the time of the\nencounter.   Accordingly,  section 10- 20( b)( 1) of the Body Camera Act is not applicable to the\nrecording at issue in this matter;  instead,  the recording is subject to disclosure under section 10-\n20(b)(2) of the Body Camera Act.  \n\nThe City argued that it blurred the video to avoid facial recognition of all\n\nindividuals present on the video,  as required by section 10- 20( b) of the Body Camera Act, \nquoted above.  The City highlighted the portion of that provision that requires a public body to\nredact a recording \" to remove identification of any person that appears on the recording and is\nnot the officer, a subject of the encounter, or directly involved in the encounter[,]\"  and argued: \n\nIn the instant case, the subjects of the encounter did not\n\nidentify themselves and the City accordingly had no way of\nverifying whether the individual that made the request is actually a\nsubject of the encounter.   As a result,  in accordance with Section\n10-20(b), the City blurred the images of those clips, while leaving\nthe audio. 3\n\n25 ILCS 140/7(1)(c) (West 2022).  \n\n3Letter from Jeffrey. R. Jurgens, Corporation Counsel, City of Bloomington, Illinois, to Benjamin\nSilver, Assistant Attorney General, Office of the Attorney General, Public Access Bureau, at 2 (February 27, 2023). \n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 5\n\nThe Public Access Bureau has previously determined that \" the subject of the\n\nencounter\" for purposes of the Body Camera Act means a person who appeared in the recording\nand \" interacted with a law enforcement officer in the course of a law enforcement activity.\" 4 Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 48793, issued August 31, 2017, at 4 (concluding that police\nofficer who was discussed in, but not depicted in, body camera recordings was not authorized to\nreceive copies of the recordings under section 10-20(b)(3) of the Body Camera Act).   \n\nBased on this office's review of the video, more than one individual engaged in\ninteractions with the officers during the encounter;  each of these individuals is either \" a subject\nof the encounter, or directly involved in the encounter.\"   In contrast, the individuals in the\nbackground of the recording that do not speak with the officers are neither subjects of the\nencounter nor directly involved in the encounter.  Contrary to the City's reading, section 10-20(b) \nneither requires the City to blur any subjects'  faces,  nor does it permit the City to do so.   This is\nthe case regardless of whether the requester is one of the subjects of the encounter captured on\nthe recording.   A public body may redact a recording subject to disclosure under 10- 20( b)( 2) \nonly to remove the identities of individuals who appear on the recording and are not the officer, a\nsubject of the encounter,  or directly involved in the encounter,  or if any portion of the recording\nis exempt from disclosure under FOIA.   \n\nSection 7(1)( d)( iv) of FOIA5 exempts from disclosure: \n\nd)  Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niv) unavoidably disclose the identity of a\n\nconfidential source,  confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative,  investigative, \nlaw enforcement, or penal agencies; except that the\n\ninformation furnished only\n\n4The Body Camera Act defines \" law enforcement-related encounters or activities\" as any\n\ninstance in which the officer is enforcing the laws of the municipality, county, or State. * * * [ but] does\nnot include when the officer is completing paperwork alone, is participating in training in a classroom setting, or is\nonly in the presence of another law enforcement officer.\"  50 ILCS 706/10-10 (West 2022).  \n\n55 ILCS 140/7(1)(d)(iv) (West 2022). \n\n\fMr. Jeffrey R. Jurgens\nOctober 4, 2023\nPage 6\n\nidentities of witnesses to traffic accidents,  traffic accident\nreports, and rescue reports shall be provided by agencies of\nlocal government,  except when disclosure would interfere\nwith an active criminal investigation conducted by the\nagency that is the recipient of the request[.] \n\nOne of the individuals whose image was blurred in the redacted recordings is an individual who\nprovided information to police, apparently in connection with a complaint against the requester.  \nBecause disclosure of the image would unavoidably identify that individual,  it is permissible for\nthe City to blur that person's image pursuant to section 7(1)(d)(iv) of FOIA.6\n\nIn accordance with the conclusions expressed above, this office requests that the\nwith copies of the video recordings responsive to his request subject only\n\nCity furnish\nto permissible redactions pursuant to section 7(1)(d)(iv) of FOIA and also \"to remove\nidentification of any person that appears on the recording and is not the officer,  a subject of the\nencounter, or directly involved in the encounter.\"   50 ILCS 706/10-20(b) (West 2022). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This file is closed.   If you have any questions, \nplease contact me at benjamin. silver@ilag. gov or ( 773)  590- 7878. \n\nVery truly yours, \n\nBENJAMIN J.  SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n75330 f 75cc improper mun\n\n6In its response to the FOIA request, the City explained that it redacted the recording in reliance on\n\nsection 7(1)(c) of FOIA; the City did not renew the argument in its response to this office.  Regardless, because the\nrecording documents an encounter on a public street that became the subject of a complaint against the officers\ninvolved, and the recording does not display any highly personal behavior or activities, section 7(1)(c) does not\npermit the City to blur the identity of the individual who interacted with officers throughout the majority of the\nencounter. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police body-camera footage of a public encounter","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75330/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 4, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Jeffrey R. Jurgens\nCorporation Counsel\nCity of Bloomington\n115 East Washington Street, Suite 403\nBloomington, Illinois 61701\nlegal@cityblm.org\n\nRE: FOIA Request for Review – 2022 PAC 75330\n\nDear\n\nand Mr. Jurgens: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons stated below, the\nPublic Access Counselor concludes that the City of Bloomington (City) improperly redacted\nrecords responsive to\n\nNovember 27, 2022, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the City seeking body\ncamera footage from two specified officers in connection with an incident that occurred on\nSeptember 11, 2022. On December 5, 2022, the City provided body camera recordings with\nportions redacted pursuant to sections 7(1)(c) and 7.5(cc) of FOIA (5 ILCS 140/7(1)(c) (West\n2022); 5 ILCS 140/ 7.5(cc) (West 2022)). On February 2, 2023, this office received\nRequest for Review contesting the City's redaction of portions of the body camera recordings. \n\nstated objection was that the recordings he received were extensively blurred. \n\nOn February 14, 2023, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the City and requested both unredacted and redacted copies of the recordings for\nthis office's confidential review, along with a detailed explanation of the factual and legal bases\n\nfor the asserted exemptions. On February 27, 2023, the City responded. On March 8, 2023, this\noffice forwarded the City's response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \"has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/1.2 (West 2020). The exemptions from disclosure are to be narrowly construed. Lieber v. \nBoard of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997). \n\nSection 7.5(cc) of FOIA exempts from disclosure \"[ r]ecordings made under the\nLaw Enforcement Officer-Worn Body Camera Act, except to the extent authorized under that\nAct.\" Section 10- 20(b) of the Law Enforcement Officer- Worn Body Camera Act (Body Camera\nAct)1 provides, in relevant part: \n\nRecordings made with the use of an officer-worn body\n\ncamera are not subject to disclosure under the Freedom of\nInformation Act, except that: \n\n1) if the subject of the encounter has a\nreasonable expectation of privacy, at the time of the\nrecording, any recording which is flagged, due to the\nfiling of a complaint, discharge of a firearm, use of force, \narrest or detention, or resulting death or bodily harm, shall\nbe disclosed in accordance with the Freedom of\nInformation Act if: \n\nA) the subject of the encounter captured on\n\nthe recording is a victim or witness; and\n\nB) the law enforcement agency obtains\nwritten permission of the subject or the subject's\n\narrest or detention, or resulting death or bodily harm shall\nbe disclosed in accordance with the Freedom of\nInformation Act; and\n\n3) upon request, the law enforcement agency shall\n\ndisclose, in accordance with the Freedom of Information\nAct, the recording to the subject of the encounter captured\non the recording or to the subject's attorney, or the officer\nor his or her legal representative. (Emphasis added.) \n\nThus, sections 10- 20(b)(1) and 10- 20(b)(2) generally require the disclosure of flagged\nrecordings, but the consent of the subject of the underlying encounter is also required if the\nsubject had a reasonable expectation of privacy at the time of the recording. \n\nSection 10- 20(b) further provides, in pertinent part: \n\nAny recording disclosed under the Freedom of Information\nAct shall be redacted to remove identification of any person\nthat appears on the recording and is not the officer, a\nsubject of the encounter, or directly involved in the\nencounter. Nothing in this subsection (b) shall require\nthe disclosure of any recording or portion of any\nrecording which would be exempt from disclosure\nunder the Freedom of Information Act. (Emphasis\nadded.) \n\nThe plain language of this section authorizes public bodies to redact portions of recordings that\nare exempt from disclosure under the various exemptions in FOIA other than section 7.5(cc) \neven if they are not prohibited from being disclosed by the Body Camera Act or section. \n\nIn its response to this office, the City acknowledged that it had blurred the images\nthe identities of persons in the videos who are not the subjects of the\n\nin the recordings to conceal\nencounter. The City further argued that it needed to blur even the subject(s) of the encounter\nwas a subject. The City also offered to provide a\nbecause it could not confirm that\nrevised copy of the recordings if\npresents identification to verify and match his\nidentity to the video. The City did not dispute\nand Request for Review that these recordings are flagged due to the filing of a complaint. \n\ncontention in both his FOIA request\n\nSection 10-20(b)(1) of the Body Camera Act only prohibits disclosure of a\n\nflagged recording without the consent of the subject if the subject \" has a reasonable expectation\n\nof privacy, at the time of the recording[.]\" This office has previously determined that a subject\nhas a reasonable expectation of privacy in his own home. See Ill. Att'y Gen. PAC Req. Rev. Ltr. \n60599, issued January 10, 2020. There is a lesser expectation of privacy in public settings. See\nIll. Att'y Gen. PAC Req. Rev. Ltr. 42379, issued September 6, 2016, at 4 (sheriff's office\nimproperly denied a video of a hallway inside a courthouse under the exemption in section\n7(1)(c) of FOIA,2 for information that would constitute an unwarranted invasion of personal\nprivacy if disclosed, noting that \"[ i]ndeed, there is no indication that a member of the public who\nwas present at the time of the recordings could not have viewed and recorded the same\nactivities\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 34486, issued July 2, 2015, at 5 (school\ndistrict did not meet its burden of showing that video of the outside of a school after school hours\nwas exempt under section 7(1)(c) when no evidence suggested that area was not fully visible to\nthe public). \n\nThe recordings responsive to\n\nFOIA request occurred on a busy public\n\nstreet. The subject of the recording was not detained or incapacitated. Instead, he was\nvoluntarily present and engaged in an extended interaction with police as bystanders walked by, \neven after police repeatedly ordered him to leave the area. Under these circumstances, the\nsubject of the recording does not have a reasonable expectation of privacy at the time of the\nencounter. Accordingly, section 10- 20(b)(1) of the Body Camera Act is not applicable to the\nrecording at issue in this matter; instead, the recording is subject to disclosure under section 10-\n20(b)(2) of the Body Camera Act. \n\nThe City argued that it blurred the video to avoid facial recognition of all\n\nindividuals present on the video, as required by section 10- 20(b) of the Body Camera Act, \nquoted above. The City highlighted the portion of that provision that requires a public body to\nredact a recording \" to remove identification of any person that appears on the recording and is\nnot the officer, a subject of the encounter, or directly involved in the encounter[,]\" and argued: \n\nIn the instant case, the subjects of the encounter did not\n\nidentify themselves and the City accordingly had no way of\nverifying whether the individual that made the request is actually a\nsubject of the encounter. As a result, in accordance with Section\n10-20(b), the City blurred the images of those clips, while leaving\nthe audio. 3\n\n25 ILCS 140/7(1)(c) (West 2022). \n\n3 Letter from Jeffrey. R. Jurgens, Corporation Counsel, City of Bloomington, Illinois, to Benjamin\nSilver, Assistant Attorney General, Office of the Attorney General, Public Access Bureau, at 2 (February 27, 2023). \n\nThe Public Access Bureau has previously determined that \" the subject of the\n\nencounter\" for purposes of the Body Camera Act means a person who appeared in the recording\nand \" interacted with a law enforcement officer in the course of a law enforcement activity.\" 4 Ill. \nAtt'y Gen. PAC Req. Rev. Ltr. 48793, issued August 31, 2017, at 4 (concluding that police\nofficer who was discussed in, but not depicted in, body camera recordings was not authorized to\nreceive copies of the recordings under section 10-20(b)(3) of the Body Camera Act). \n\nBased on this office's review of the video, more than one individual engaged in\ninteractions with the officers during the encounter; each of these individuals is either \" a subject\nof the encounter, or directly involved in the encounter.\" In contrast, the individuals in the\nbackground of the recording that do not speak with the officers are neither subjects of the\nencounter nor directly involved in the encounter. Contrary to the City's reading, section 10-20(b) \nneither requires the City to blur any subjects' faces, nor does it permit the City to do so. This is\nthe case regardless of whether the requester is one of the subjects of the encounter captured on\nthe recording. A public body may redact a recording subject to disclosure under 10- 20(b)(2) \nonly to remove the identities of individuals who appear on the recording and are not the officer, a\nsubject of the encounter, or directly involved in the encounter, or if any portion of the recording\nis exempt from disclosure under FOIA. \n\nSection 7(1)(d)(iv) of FOIA5 exempts from disclosure: \n\nd) Records in the possession of any public body created in\nthe course of administrative enforcement proceedings, and any law\nenforcement or correctional agency for law enforcement purposes, \nbut only to the extent that disclosure would: \n\niv) unavoidably disclose the identity of a\n\nconfidential source, confidential\nby the confidential source, or persons who file complaints\nwith or provide information to administrative, investigative, \nlaw enforcement, or penal agencies; except that the\n\ninformation furnished only\n\n4 The Body Camera Act defines \" law enforcement-related encounters or activities\" as any\n\ninstance in which the officer is enforcing the laws of the municipality, county, or State. * * * [ but] does\nnot include when the officer is completing paperwork alone, is participating in training in a classroom setting, or is\n\nidentities of witnesses to traffic accidents, traffic accident\nreports, and rescue reports shall be provided by agencies of\nlocal government, except when disclosure would interfere\nwith an active criminal investigation conducted by the\nagency that is the recipient of the request[.] \n\nOne of the individuals whose image was blurred in the redacted recordings is an individual who\nprovided information to police, apparently in connection with a complaint against the requester. \nBecause disclosure of the image would unavoidably identify that individual, it is permissible for\nthe City to blur that person's image pursuant to section 7(1)(d)(iv) of FOIA.6\n\nIn accordance with the conclusions expressed above, this office requests that the\nwith copies of the video recordings responsive to his request subject only\n\nCity furnish\nto permissible redactions pursuant to section 7(1)(d)(iv) of FOIA and also \"to remove\nidentification of any person that appears on the recording and is not the officer, a subject of the\nencounter, or directly involved in the encounter.\" 50 ILCS 706/10-20(b) (West 2022). \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at benjamin. silver@ilag. gov or (773) 590- 7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n75330 f 75cc improper mun\n\n6 In its response to the FOIA request, the City explained that it redacted the recording in reliance on\n\nsection 7(1)(c) of FOIA; the City did not renew the argument in its response to this office. Regardless, because the\nrecording documents an encounter on a public street that became the subject of a complaint against the officers\ninvolved, and the recording does not display any highly personal behavior or activities, section 7(1)(c) does not\npermit the City to blur the identity of the individual who interacted with officers throughout the majority of the\nencounter."}
{"id":1001,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-05-25","case_number":null,"request_numbers":["75440"],"title":"City of Chicago Planning improperly redacted LaSalle Street Reimagined proposal summary under 7(1)(c)","filename":"75440, issued May 25, 2023.pdf","rel_path":null,"word_count":1392,"summary":"The requester sought a summary of responses to an Invitation for Proposals for the LaSalle Street Reimagined initiative, which the City of Chicago Department of Planning and Development redacted. The PAC determined the Department failed to provide clear and convincing evidence that the redacted information was exempt from disclosure.","plain_summary":"A requester asked the City of Chicago for a summary of proposals submitted for the 'LaSalle Street Reimagined' project. The City provided the document but blacked out parts of it, claiming they were exempt from public view. The Attorney General's office reviewed the request and decided the City did not prove the redactions were legal, ordering them to release the unredacted document.","holding":"The City of Chicago Department of Planning and Development improperly redacted information from the requested record.","legal_question":"Whether the Department of Planning and Development met its burden of proving by clear and convincing evidence that the redacted information in the proposal summary was exempt from disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(c)"],"public_body":"City of Chicago Department of Planning and Development","requesting_party":"Elliott Mallen (Unite Here Local 1)","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"exemption 7(1)(c)","subject_description":"The request concerned a summary of responses to an Invitation for Proposals for the LaSalle Street Reimagined initiative.","ocr_status":"ok","ocr_quality":92.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9/75440%2C%20issued%20May%2025%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["redaction","proposal","city planning","FOIA request"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 25, 2023\n\nVia electronic mail\nElliott Mallen\nResearch Director\nUnite Here Local 1\n[street address redacted for site publication -- see original PDF]\nemallen@unitehere1. org\n\nVia electronic mail\nMs. LaShonda Morgan\nFOIA Officer\nDepartment of Planning and Development\nCity of Chicago\n121 North LaSalle Street,  Room 1000\nChicago,  Illinois 60602\nDPDFOIA@cityofchicago. org\n\nRE:    FOIA Request for Review:   2023 PAC 75440;  FOIA O036175- 010323\n\nDear Elliott Mallen and Ms. Morgan: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1 For the reasons explained below,  the Public Access Bureau concludes\nthat the City of Chicago' s Department of Planning and Development ( Department)  improperly\ndenied Elliott Mallen' s January 3, 2023,  FOIA request. \n\nOn that date, Elliott Mallen,  on behalf of Unite Here Local 1, submitted a FOIA\n\nrequest to the Department seeking copies of \"the summary of responses to the Invitation for\nProposals issued for the City of Chicago' s LaSalle Street Reimagined initiative,  referenced in the\n\n15 ILCS 140/ 9.5(f) (West 2020). \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fElliott Mallen\nMs. LaShonda Morgan\nMay 25, 2023\nPage 2\n\nChicago Sun Times on Dec. 28, 2022 and Crain' s Chicago Business on Jan.  3, 2023.\" 2 On\nJanuary 19, 2023,  the Department provided a list that included the names of six properties and\nthe entities that responded with bids for proposed improvements to those properties.   The\nDepartment partially denied the request by redacting one \" business that dropped off 208 South\nLaSalle.\" 3 On January 24, 2023,  Elliott Mallen asked the Department\nidentify the exemption in FOIA that applied to the redacted information;  it appears the\nDepartment did not respond.   On February 9, 2023,  this office received Elliott Mallen' s Request\nfor Review disputing the redaction. \n\nto clarify its response and\n\nOn February 17, 2023,  the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Department and asked it to provide unredacted copies of the withheld record\nfor our confidential review along with a detailed explanation of the legal and factual bases to\nsupport its redaction.   The Department did not respond to the Public Access Bureau.   On March\n7, 2023,  this office forwarded a second copy of the Request for Review to the Department and\nagain requested that it respond to Elliott Mallen' s Request for Review.   Again,  the Department\ndid not respond.   On March 31, 2023,  an Assistant Attorney General called the Department' s\nFOIA Officer and left a message requesting a call back.   To date,  this office has not received any\nresponse from the Department.        \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 4 FOIA\nprovides that \"[ e] ach public body shall make available to any person for inspection or copying all\npublic records,  except as otherwise provided in Sections 7 and 8.5 of this Act.\" 5\n\nSection 9.5(c) of FOIA\n\nThe procedures for a public body to respond to the Public Access Counselor in\n\nconnection with a Request for Review of the denial of a FOIA request are clear.   Section 9.5(c) \nof FOIA unambiguously provides that \"[ w]ithin 7 business days after receipt of the request for\n\n2FOIA request O036175- 010323. \n\nDevelopment\n\nto Elliot Mallen ( January 19, 2023)  at 2. \n\n3Letter from LaShonda Morgan,  FOIA Officer, [ City of Chicago]  Department of Planning and\n\n45 ILCS 140/ 1.2 (West 2020). \n\n55 ILCS 140/ 3(a) ( West 2020).   \n\n\fElliott Mallen\nMs. LaShonda Morgan\nMay 25, 2023\nPage 3\n\nreview,  the public body shall provide copies of records requested and shall otherwise fully\ncooperate with the Public Access Counselor.\" 6  ( Emphasis added.)   It is undisputed that the\nDepartment did not provide the Public Access Bureau with the requested records as expressly\nrequired by section 9.5(c) of FOIA.  This mandate could not be more clearly stated.   The\nDepartment' s failure to provide our office with copies of the records responsive to Elliott\nMallen' s FOIA request for our confidential review violated the requirements of FOIA.  The\nDepartment should be mindful of its obligation to fully cooperate with this office in all future\nRequests for Review. \n\nSection 9(a) of FOIA\n\nSection 9(a)  of FOIA 7 provides:  \n\nEach public body denying a request for public records shall\n\nnotify the requester in writing of the decision to deny the request, \nthe reasons for the denial,  including a detailed factual basis for\nthe application of any exemption claimed,  and the names and\ntitles or positions of each person responsible for the denial.  \nEmphasis added.) \n\nThe Department' s response to Elliott Mallen does not provide a basis for the\n\npartial denial other than to state that \"[ t]he area that is deleted is a business that dropped off 208\nSouth LaSalle.\" 8 The Department' s response is vague and the Department has not responded to\nthis office' s requests for clarification.   Nevertheless,  this office construes the Department' s\nresponse as asserting that the entry for 208 South LaSalle is not responsive to the request because\nthe developer listed was no longer participating in the LaSalle Street Reimagined Initiative. \n\nGenerally,  FOIA does not require disclosure of information that was not\n\nrequested.   Ill. Att'y Gen.  Pub.  Acc. Op. No. 12-009, issued May 25, 2012,  at 4 (\" FOIA does not\nrequire the disclosure of clearly nonresponsive information within documents simply because\nsome portion of [the]  document is responsive to a request for specific information.\").   However, \npublic bodies \" should err on the side of liberally construing what material falls within the scope\nof the request.\"   Dunaway v. Webster,  519 F. Supp.  1059,  1083 ( N.D.Cal. 1981).   Ambiguities\nshould be resolved in favor of disclosure.   See,  e.g., LaCedra v. Executive Office for U.S. \n\n65 ILCS 140/ 9.5(c) (West 2020). \n\n75 ILCS 140/ 9(a) ( West 2020).  \n\nDevelopment\n\nto Elliot Mallen ( January 19, 2023)  at 2. \n\n8Letter from LaShonda Morgan,  FOIA Officer, [ City of Chicago]  Department of Planning and\n\n\fElliott Mallen\nMs. LaShonda Morgan\nMay 25, 2023\nPage 4\n\nAttorneys,  317 F.3d 345, 348 ( D.C. Cir. 2003) ( rejecting public body's narrow construction of\nlanguage used in request). \n\nThe Department has not demonstrated that the entry for 208 South LaSalle was\n\nnot responsive to Elliott Mallen' s request.   The articles referenced in Elliott Mallen' s FOIA\nrequest stated that the redevelopment plans involved seven properties,  including two submissions\nfor 208 South LaSalle. 9 The record provided in response to the FOIA request only listed six\nproperties and omitted any reference to 208 South LaSalle.   Elliott Mallen' s request specifically\nsought the copy of the summaries as referenced in the articles.   Therefore,  even if a business\nsubsequently withdrew a response to the Invitation for Proposals,  the summary that included 208\nSouth LaSalle was nevertheless responsive to the FOIA request.   Accordingly,  this office is\nunable to conclude that the Department has demonstrated by clear and convincing evidence that\nthe redacted information is exempt from disclosure.   This office requests that the Department\nprovide Elliott Mallen with a copy of the unredacted record responsive to the request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nquestions,  please contact me at victoria. frazier@ilag. gov.   \n\nVery truly yours, \n\nVICTORIA FRAZIER\nAssistant Attorney General\nPublic Access Bureau\n\n75440 f 9a improper 95c improper mun\n\n9David Roeder,  Developers propose $ 1 billion in work to help La Salle Street, Chicago Sun Times, \n\nDec. 5, 2022),  https:// chicago. suntimes. com/2022/ 12/28/23528757/ lasalle- street- chicago -financial- district-\nrejuvenate- housing- residential;  Danny Ecker,  Developers pitch $1.2 billion of LaSalle Street residential\nconversations,  Crain' s Chicago Business, ( Jan.  3, 2023),  https:// www. chicagobusiness. com/ commercial- real-\nestate/ developers- pitch- 12-billion- lasalle- street- residential- conversions. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A summary of responses to an Invitation for Proposals","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75440/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 25, 2023\n\nVia electronic mail\nElliott Mallen\nResearch Director\nUnite Here Local 1\n[street address redacted for site publication -- see original PDF]\nemallen@unitehere1. org\n\nVia electronic mail\nMs. LaShonda Morgan\nFOIA Officer\nDepartment of Planning and Development\nCity of Chicago\n121 North LaSalle Street, Room 1000\nChicago, Illinois 60602\nDPDFOIA@cityofchicago. org\n\nRE: FOIA Request for Review: 2023 PAC 75440; FOIA O036175- 010323\n\nDear Elliott Mallen and Ms. Morgan: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1 For the reasons explained below, the Public Access Bureau concludes\nthat the City of Chicago's Department of Planning and Development (Department) improperly\ndenied Elliott Mallen's January 3, 2023, FOIA request. \n\nOn that date, Elliott Mallen, on behalf of Unite Here Local 1, submitted a FOIA\n\nrequest to the Department seeking copies of \"the summary of responses to the Invitation for\nProposals issued for the City of Chicago's LaSalle Street Reimagined initiative, referenced in the\n\n15 ILCS 140/ 9.5(f) (West 2020). \n\nChicago Sun Times on Dec. 28, 2022 and Crain's Chicago Business on Jan. 3, 2023.\" 2 On\nJanuary 19, 2023, the Department provided a list that included the names of six properties and\nthe entities that responded with bids for proposed improvements to those properties. The\nDepartment partially denied the request by redacting one \" business that dropped off 208 South\nLaSalle.\" 3 On January 24, 2023, Elliott Mallen asked the Department\nidentify the exemption in FOIA that applied to the redacted information; it appears the\nDepartment did not respond. On February 9, 2023, this office received Elliott Mallen's Request\nfor Review disputing the redaction. \n\nto clarify its response and\n\nOn February 17, 2023, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Department and asked it to provide unredacted copies of the withheld record\nfor our confidential review along with a detailed explanation of the legal and factual bases to\nsupport its redaction. The Department did not respond to the Public Access Bureau. On March\n7, 2023, this office forwarded a second copy of the Request for Review to the Department and\nagain requested that it respond to Elliott Mallen's Request for Review. Again, the Department\ndid not respond. On March 31, 2023, an Assistant Attorney General called the Department's\nFOIA Officer and left a message requesting a call back. To date, this office has not received any\nresponse from the Department. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 4 FOIA\nprovides that \"[ e] ach public body shall make available to any person for inspection or copying all\npublic records, except as otherwise provided in Sections 7 and 8.5 of this Act.\" 5\n\nSection 9.5(c) of FOIA\n\nThe procedures for a public body to respond to the Public Access Counselor in\n\nconnection with a Request for Review of the denial of a FOIA request are clear. Section 9.5(c) \nof FOIA unambiguously provides that \"[ w]ithin 7 business days after receipt of the request for\n\n2FOIA request O036175- 010323. \n\nDevelopment\n\nreview, the public body shall provide copies of records requested and shall otherwise fully\ncooperate with the Public Access Counselor.\" 6 (Emphasis added.) It is undisputed that the\nDepartment did not provide the Public Access Bureau with the requested records as expressly\nrequired by section 9.5(c) of FOIA. This mandate could not be more clearly stated. The\nDepartment's failure to provide our office with copies of the records responsive to Elliott\nMallen's FOIA request for our confidential review violated the requirements of FOIA. The\nDepartment should be mindful of its obligation to fully cooperate with this office in all future\nRequests for Review. \n\nSection 9(a) of FOIA\n\nSection 9(a) of FOIA 7 provides: \n\nEach public body denying a request for public records shall\n\nnotify the requester in writing of the decision to deny the request, \nthe reasons for the denial, including a detailed factual basis for\nthe application of any exemption claimed, and the names and\ntitles or positions of each person responsible for the denial. \nEmphasis added.) \n\nThe Department's response to Elliott Mallen does not provide a basis for the\n\npartial denial other than to state that \"[ t]he area that is deleted is a business that dropped off 208\nSouth LaSalle.\" 8 The Department's response is vague and the Department has not responded to\nthis office's requests for clarification. Nevertheless, this office construes the Department's\nresponse as asserting that the entry for 208 South LaSalle is not responsive to the request because\nthe developer listed was no longer participating in the LaSalle Street Reimagined Initiative. \n\nGenerally, FOIA does not require disclosure of information that was not\n\nrequested. Ill. Att'y Gen. Pub. Acc. Op. No. 12-009, issued May 25, 2012, at 4 (\" FOIA does not\nrequire the disclosure of clearly nonresponsive information within documents simply because\nsome portion of [the] document is responsive to a request for specific information.\"). However, \npublic bodies \" should err on the side of liberally construing what material falls within the scope\nof the request.\" Dunaway v. Webster, 519 F. Supp. 1059, 1083 (N.D.Cal. 1981). Ambiguities\nshould be resolved in favor of disclosure. See, e.g., LaCedra v. Executive Office for U.S. \n\n65 ILCS 140/ 9.5(c) (West 2020). \n\nAttorneys, 317 F.3d 345, 348 (D.C. Cir. 2003) (rejecting public body's narrow construction of\nlanguage used in request). \n\nThe Department has not demonstrated that the entry for 208 South LaSalle was\n\nnot responsive to Elliott Mallen's request. The articles referenced in Elliott Mallen's FOIA\nrequest stated that the redevelopment plans involved seven properties, including two submissions\nfor 208 South LaSalle. 9 The record provided in response to the FOIA request only listed six\nproperties and omitted any reference to 208 South LaSalle. Elliott Mallen's request specifically\nsought the copy of the summaries as referenced in the articles. Therefore, even if a business\nsubsequently withdrew a response to the Invitation for Proposals, the summary that included 208\nSouth LaSalle was nevertheless responsive to the FOIA request. Accordingly, this office is\nunable to conclude that the Department has demonstrated by clear and convincing evidence that\nthe redacted information is exempt from disclosure. This office requests that the Department\nprovide Elliott Mallen with a copy of the unredacted record responsive to the request. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nquestions, please contact me at victoria. frazier@ilag. gov. \n\nVery truly yours, \n\nVICTORIA FRAZIER\nAssistant Attorney General\nPublic Access Bureau\n\n75440 f 9a improper 95c improper mun\n\n9 David Roeder, Developers propose $ 1 billion in work to help La Salle Street, Chicago Sun Times, \n\nDec. 5, 2022), https:// chicago. suntimes. com/2022/ 12/28/23528757/ lasalle- street- chicago -financial- district-\nrejuvenate- housing- residential; Danny Ecker, Developers pitch $1.2 billion of LaSalle Street residential\nconversations, Crain's Chicago Business, (Jan. 3, 2023), https:// www. chicagobusiness. com/ commercial- real-\nestate/ developers- pitch- 12-billion- lasalle- street- residential- conversions."}
{"id":1002,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-11-13","case_number":null,"request_numbers":["75666"],"title":"Illinois Lottery found no FOIA violation for reasonable search of contractor-held records","filename":"75666, issued November 13, 2023.pdf","rel_path":null,"word_count":1239,"summary":"The requester sought records regarding 2012 lottery prize payments and submission procedures, and the PAC determined that the Illinois Department of the Lottery conducted a reasonable search for those records.","plain_summary":"A requester asked the Illinois Lottery for records from 2012 regarding prize payments and ticket submission processes. The Lottery could not find all the requested documents because they were held by a former private contractor, but the Attorney General's office found that the Lottery made a reasonable effort to locate the information. Consequently, the case was closed with no finding of a violation.","holding":"The Illinois Department of the Lottery did not violate FOIA because it performed a reasonable search and made a good-faith effort to obtain records from a third-party contractor.","legal_question":"Whether the Illinois Department of the Lottery conducted an adequate and reasonable search for records responsive to a FOIA request under section 3 of the Act.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Department of the Lottery","requesting_party":"Mr. Jeffrey Pyle","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"reasonable search","subject_description":"The requester sought records related to lottery prize payments and ticket submission procedures from 2012.","ocr_status":"ok","ocr_quality":95,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_2/75666%2C%20issued%20November%2013%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["reasonable search","lottery records","third-party records","FOIA compliance"],"truncated_suspect":0,"site_category":"Search & Production","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 13, 2023\n\nVia electronic mail\nMr. Jeffrey Pyle\nPrince Lobel Tye LLP\nOne International Place,  Suite 3700\nBoston,  Massachusetts 02110\njpyle@princelobel. com\n\nVia electronic mail\nMs. Katherine C. Tower\nIllinois Department of the Lottery\n[street address redacted for site publication -- see original PDF]\nKatherine. Tower@illinois. gov\n\nRE:  FOIA Request for Review –  2023 PAC 75666;  FOIA 22-144\n\nDear Mr. Pyle and Ms. Tower: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons that follow, the\nPublic Access Bureau concludes that the searches performed by the Illinois Department of the\nLottery ( Lottery)  to locate records responsive to Mr. Jeffrey Pyle's December 21, 2022,  FOIA\nrequest were reasonable. \n\nOn that date, Mr. Pyle, on behalf of his law firm, submitted a FOIA request to the\n\nLottery seeking: \n\n1.  All records relating to any Lottery prize paid to [a named\n\nindividual],  or in the name of [a named individual],  during\nthe year 2012. \n\n2.  Documents sufficient to show the process by which Lottery\n\nplayers submitted winning tickets in 2012. \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMr. Jeffrey Pyle\nMs. Katherine C. Tower\nNovember 13, 2023\nPage 2\n\n3.  Documents sufficient to identify any and all processes or\nprocedures that were used by the Lottery and/  or any\ncontractor of the Lottery in 2012 to verify the identity of a\nperson claiming a prize of $1 million or more. \n\n4.  Documents sufficient to identify any and all processes or\nprocedures used to verify the payee' s identity and address\nin the case of any prize paid to [ a named individual]  in\n2012.[ 1] \n\nOn December 31, 2022,  the Lottery informed Mr. Pyle that it did not possess any records\nresponsive to the first part of his request.   The Lottery recommended that he contact a private\nentity, Northstar Lottery Group,  to request those records.   It also provided a narrative answer to\nparts 2-4 of Mr. Pyle's request.   On February 27, 2023,  this office received Mr. Pyle's Request\nfor Review challenging the Lottery' s response.   Mr. Pyle alleged that because the records may be\nin the possession of Northstar,  a Lottery contractor,  the Lottery must obtain those records to\nproperly respond to his request. \n\nOn March 14, 2023,  the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Lottery and asked it for a written response.   This office requested that the\nLottery address the applicability of section 7(2) of FOIA 2 to responsive records in the possession\nof Northstar,  the Lottery' s contractor in 2012.   On March 16, 2023,  the Lottery provided a\nwritten response.   On March 17, 2023,  this office forwarded the Lottery' s response to Mr. Pyle; \nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.   Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/ 1.2 (West 2022). \n\nSection 7(2) of FOIA provides: \n\nA public record that is not in the possession of a public\n\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental\n\nfunction on behalf of the\n\n1E- mail from Jeffrey J. Pyle, Prince Lobel Tye LLP, to FOIA Officer,  Office of the General\n\nCounsel,  Illinois Lottery ( December 21, 2022). \n\n25 ILCS 140/ 7(2) (West 2022). \n\n\fMr. Jeffrey Pyle\nMs. Katherine C. Tower\nNovember 13, 2023\nPage 3\n\npublic body, and that directly relates to the governmental\nfunction\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body,  for purposes of this Act.   \n\nUnder this provision,  public records in the possession of a contractor that directly relate to a\ngovernmental\nfunction that the contractor has contracted to perform for the public body are\nconsidered to be records of the public body.  Further,  a public body has a duty to request any\nresponsive records related to the governmental\nand to provide the requester with copies of them unless they fall within one or more of FOIA' s\nexemptions.   See Ill. Att'y Gen.  Pub.  Acc. Op. No. 20-006, issued July 27, 2020,  at 7. \n\nfunction in the physical custody of the third party\n\nIn its response to this office, the Lottery explained that Northstar was its private\n\nmanager during the time period specified in the FOIA request,  but its management agreement\nwith Northstar ended in January 2017.   In October 2017,  Camelot became the Lottery' s private\nmanager.   The Lottery confirmed that it and Camelot conducted searches of their records,  but did\nnot locate responsive documents.   The Lottery explained that it retained no control over\nNorthstar' s records after the contract ended and \" the Survival Clause contained in the Letter of\nAgreement between the Lottery and Northstar require[ d]  that the parties continue to be bound by\nthe Private Management Agreement,  including [ section]  9.3.5 FOIA Required Disclosures\"  only\nuntil 2017. 3 The Lottery explained that it has nevertheless attempted to contact Northstar in\nconnection with the firm's FOIA request,  but has not been able to reach Northstar by phone.   The\nLottery also e-mailed executives and a general account for International Game Technology\nIGT), a Northstar affiliate,  seeking the records specified by Mr. Pyle.  The Lottery stated that\nIGT was not able to locate responsive records. \n\nBased on this office's review,  the Lottery has taken reasonable measures to obtain\n\nresponsive records,  if any,  in its former contractor' s possession.   The Lottery acknowledges its\nobligations under section 7(2) of FOIA to obtain responsive records from its contractors,  but its\nefforts to comply with section 7(2) have been hampered by the termination of its agreement with\nNorthstar and the passage of time.  The Lottery has taken reasonable steps to contact Northstar, \nand it does not appear to have any viable means to compel a response at this time.  It also is\nunclear whether Northstar still retains the records Mr. Pyle is seeking from 2012.   Because the\nLottery demonstrated that it made a good faith effort to obtain any responsive records from\nNorthstar and because it appears that any additional efforts would be futile, this office is unable\nto conclude that the Lottery' s response to Mr. Pyle's request violated section 7(2) of FOIA. \n\nBureau Chief,  Public Access Bureau,  Office of the Attorney General ( March 16,  2023),  at [ 1]. \n\n3Letter from Katherine C. Tower,  Illinois Department of the Lottery,  to Laura S. Harter,  Deputy\n\n\fr. Jeffrey Pyle\nMs. Katherine C. Tower\nNovember 13, 2023\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at (217)  843- 0564 or laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n75666 f 72 proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Lottery prize payment records and ticket submission procedures","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75666/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 13, 2023\n\nVia electronic mail\nMr. Jeffrey Pyle\nPrince Lobel Tye LLP\nOne International Place, Suite 3700\nBoston, Massachusetts 02110\njpyle@princelobel. com\n\nVia electronic mail\nMs. Katherine C. Tower\nIllinois Department of the Lottery\n[street address redacted for site publication -- see original PDF]\nKatherine. Tower@illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 75666; FOIA 22-144\n\nDear Mr. Pyle and Ms. Tower: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the searches performed by the Illinois Department of the\nLottery (Lottery) to locate records responsive to Mr. Jeffrey Pyle's December 21, 2022, FOIA\nrequest were reasonable. \n\nOn that date, Mr. Pyle, on behalf of his law firm, submitted a FOIA request to the\n\nLottery seeking: \n\n1. All records relating to any Lottery prize paid to [a named\n\nindividual], or in the name of [a named individual], during\nthe year 2012. \n\n2. Documents sufficient to show the process by which Lottery\n\nplayers submitted winning tickets in 2012. \n\n3. Documents sufficient to identify any and all processes or\nprocedures that were used by the Lottery and/ or any\ncontractor of the Lottery in 2012 to verify the identity of a\nperson claiming a prize of $1 million or more. \n\n4. Documents sufficient to identify any and all processes or\nprocedures used to verify the payee's identity and address\nin the case of any prize paid to [ a named individual] in\n2012.[ 1] \n\nOn December 31, 2022, the Lottery informed Mr. Pyle that it did not possess any records\nresponsive to the first part of his request. The Lottery recommended that he contact a private\nentity, Northstar Lottery Group, to request those records. It also provided a narrative answer to\nparts 2-4 of Mr. Pyle's request. On February 27, 2023, this office received Mr. Pyle's Request\nfor Review challenging the Lottery's response. Mr. Pyle alleged that because the records may be\nin the possession of Northstar, a Lottery contractor, the Lottery must obtain those records to\nproperly respond to his request. \n\nOn March 14, 2023, the Public Access Bureau forwarded a copy of the Request\n\nfor Review to the Lottery and asked it for a written response. This office requested that the\nLottery address the applicability of section 7(2) of FOIA 2 to responsive records in the possession\nof Northstar, the Lottery's contractor in 2012. On March 16, 2023, the Lottery provided a\nwritten response. On March 17, 2023, this office forwarded the Lottery's response to Mr. Pyle; \nhe did not reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/ 1.2 (West 2022). \n\nSection 7(2) of FOIA provides: \n\nA public record that is not in the possession of a public\n\nbody but is in the possession of a party with whom the agency has\ncontracted to perform a governmental\n\nfunction on behalf of the\n\n1E- mail from Jeffrey J. Pyle, Prince Lobel Tye LLP, to FOIA Officer, Office of the General\n\npublic body, and that directly relates to the governmental\nfunction\nand is not otherwise exempt under this Act, shall be considered a\npublic record of the public body, for purposes of this Act. \n\nUnder this provision, public records in the possession of a contractor that directly relate to a\ngovernmental\nfunction that the contractor has contracted to perform for the public body are\nconsidered to be records of the public body. Further, a public body has a duty to request any\nresponsive records related to the governmental\nand to provide the requester with copies of them unless they fall within one or more of FOIA's\nexemptions. See Ill. Att'y Gen. Pub. Acc. Op. No. 20-006, issued July 27, 2020, at 7. \n\nfunction in the physical custody of the third party\n\nIn its response to this office, the Lottery explained that Northstar was its private\n\nmanager during the time period specified in the FOIA request, but its management agreement\nwith Northstar ended in January 2017. In October 2017, Camelot became the Lottery's private\nmanager. The Lottery confirmed that it and Camelot conducted searches of their records, but did\nnot locate responsive documents. The Lottery explained that it retained no control over\nNorthstar's records after the contract ended and \" the Survival Clause contained in the Letter of\nAgreement between the Lottery and Northstar require[ d] that the parties continue to be bound by\nthe Private Management Agreement, including [ section] 9.3.5 FOIA Required Disclosures\" only\nuntil 2017. 3 The Lottery explained that it has nevertheless attempted to contact Northstar in\nconnection with the firm's FOIA request, but has not been able to reach Northstar by phone. The\nLottery also e-mailed executives and a general account for International Game Technology\nIGT), a Northstar affiliate, seeking the records specified by Mr. Pyle. The Lottery stated that\nIGT was not able to locate responsive records. \n\nBased on this office's review, the Lottery has taken reasonable measures to obtain\n\nresponsive records, if any, in its former contractor's possession. The Lottery acknowledges its\nobligations under section 7(2) of FOIA to obtain responsive records from its contractors, but its\nefforts to comply with section 7(2) have been hampered by the termination of its agreement with\nNorthstar and the passage of time. The Lottery has taken reasonable steps to contact Northstar, \nand it does not appear to have any viable means to compel a response at this time. It also is\nunclear whether Northstar still retains the records Mr. Pyle is seeking from 2012. Because the\nLottery demonstrated that it made a good faith effort to obtain any responsive records from\nNorthstar and because it appears that any additional efforts would be futile, this office is unable\nto conclude that the Lottery's response to Mr. Pyle's request violated section 7(2) of FOIA. \n\nBureau Chief, Public Access Bureau, Office of the Attorney General (March 16, 2023), at [ 1]. \n\n3 Letter from Katherine C. Tower, Illinois Department of the Lottery, to Laura S. Harter, Deputy\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 843- 0564 or laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n75666 f 72 proper sa"}
{"id":1003,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2025-03-19","case_number":null,"request_numbers":["75894"],"title":"University of Illinois improperly denied FOIA request for Big Ten media contract","filename":"75894, issued March 19, 2025.pdf","rel_path":null,"word_count":3624,"summary":"Mr. LeRoy requested a copy of the 'Big Ten media rights deal' from the University of Illinois, which the University denied claiming it possessed no responsive records. The PAC determined the University improperly denied the request because the contract constitutes a public record under FOIA as it relates to the transaction of public business.","plain_summary":"A professor requested the Big Ten media rights contract from the University of Illinois. The University said it didn't have the contract because the Conference holds the rights. The Public Access Bureau concluded that the University improperly denied the request, and analyzed whether the contract is a public record under a law that makes records held by contractors subject to FOIA. The provided source text does not state whether the Bureau ordered the University to obtain the document from the Conference.","holding":"The University of Illinois improperly denied Michael LeRoy's FOIA request for the Big Ten media rights contract.","legal_question":"Whether a contract held by a third-party entity (the Big Ten Conference) on behalf of a public body (the University) constitutes a public record subject to disclosure under FOIA.","disposition":"violation_found","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"University of Illinois at Urbana-Champaign","requesting_party":"Mr. Michael H. LeRoy","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"public records","subject_description":"The request sought the Big Ten media rights agreement, which the University claimed it did not possess.","ocr_status":"ok","ocr_quality":95.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_2/75894%2C%20issued%20March%2019%2C%202025.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["public records","university","contract","FOIA request"],"truncated_suspect":0,"site_category":"Public Records Definition","full_text_pre_clean":"March 19, 2025\n\nVia electronic mail\nMr. Michael H. LeRoy\nProfessor\nUniversity of Illinois Urbana- Champaign\nSchool of Labor &  Employment Relations and College of Law\n[street address redacted for site publication -- see original PDF]\nmhl@illinois. edu\n\nVia electronic mail\nMs. Adrienne Nazon\nVice President,  External Relations and Communications\n\nand Chief Records Officer\nUniversity of Illinois System\n108 Henry Administration Building,  MC370\n506 South Wright Street\nUrbana,  Illinois 61801\nFOIA- OUR@mx. uillinois. edu\n\nRE:  FOIA Request for Review –  2023 PAC 75894;  University No. 23-331\n\nDear Mr. LeRoy and Ms. Nazon: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2023 Supp.)).   For the reasons that follow, the\nPublic Access Bureau concludes that the University of Illinois at Urbana- Champaign\nUniversity)  improperly denied Mr. Michael LeRoy' s March 8, 2023,  FOIA request.  \n\nOn that date, Mr. LeRoy submitted a FOIA request to the University seeking a\ncopy of \"the contract that is popularly known as the 'Big Ten media rights deal[,]'\"  and related\n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 2\n\nrecords. 1 On March 15, 2023,  the University responded,  stating that it searched but located no\nresponsive records.   The University indicated that the reason it possessed no responsive records\nis that \" each Big Ten institution has given television rights to the Big Ten Conference. \nAgreements are between the Conference and each respective television partner.\" 2 On March 17, \n2023,  Mr. LeRoy submitted the above- referenced Request for Review contesting the University' s\nresponse as to the Big Ten media rights deal.   He explained in detail the reasons why he believed\nthe University possesses that contract directly or indirectly,  including that University\nadministrators such as Athletic Director Josh Whitman must have reviewed the agreement based\non statements in the news media and the fiscal implications of the deal for the University.  \n\nOn March 24, 2023,  this office forwarded a copy of the Request for Review to the\n\nUniversity and asked it to provide a detailed description of the measures taken to search for\nresponsive records,  including a description of the specific extranets or other shared\nrecordkeeping systems that were searched,  the method of that search,  and the individuals who\nwere consulted.   This office also requested a detailed description of the relationship between the\nUniversity and the Big Ten Conference ( Conference)  in relation to the negotiation and execution\nof any contract for media rights,  and a copy of any foundational record( s) evincing the terms of\nthe University' s delegation of rights to the Conference and any mutual obligations.   \n\nOn April 4, 2023,  the University responded by submitting two versions of its\n\nanswer:   a complete version for this office's confidential review and a redacted version to\nforward to Mr. LeRoy.   In its non- confidential answer,  the University stated that its FOIA Office\npersonnel had consulted with the University' s Division of Intercollegiate Athletics ( DIA) \nAssociate Athletic Director for Media Relations,  Kent Brown,  who reported that the University\ndid not possess the media rights deal and subsequently received confirmation of the same from\nDIA Chief Operating Officer Roger Denny and Athletic Director Whitman. \n\nOn April 6, 2023,  this office forwarded a copy of the University' s redacted answer\n\nto Mr. LeRoy;  on that same date,  Mr. LeRoy submitted a reply.  Mr. LeRoy argued that the\nmedia rights deal meets the definition of \"public record\"  in FOIA 3 because it pertains to the\ntransaction of public business and was prepared,  in part, for the University' s benefit.   \n\nOn April 12, 2023,  this office sent a follow- up e-mail to the University and asked\n\nit to address whether the University had entered into any type of contract with the Conference, \ntogether with an explanation of the relationship between the University and the Conference and\n\nof Law, University of Illinois at Urbana- Champaign,  to University of Illinois FOIA ( March 8, 2023). \n\n1E- mail from Michael H. LeRoy,  Professor,  School of Labor &  Employment Relations &  College\n\n2E- mail from Kirsten Ruby, Director,  External Relations and Communications and Chief Records\n\nOfficer,  to Michael H. LeRoy ( March 15, 2023). \n\n35 ILCS 140/2(c) (West 2022). \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 3\n\nthe applicability of section 7(2) of FOIA. 4 On April 27, 2023,  the University provided a\nsupplemental written response.   On May 10, 2023,  this office forwarded a copy of the\nUniversity' s response to Mr. LeRoy;  on the same date,  Mr. LeRoy submitted a reply addressing\nthe applicability of section 7(2) of FOIA.   \n\nOn October 30, 2023,  the University unexpectedly provided this office and Mr. \n\nLeRoy with a copy of an April 16, 2015,  amended assignment of rights agreement ( Assignment) \nbetween the University and the Conference. 5 Among other things,  the Assignment provides the\nConference with sole authority to negotiate and execute agreements concerning the telecast and\ndistribution rights to the University' s varsity athletic games,  contests,  and related events. 6 The\nUniversity stated that it had recently discovered this document,  which it had previously denied\npossessing,  while cleaning out the office of an unspecified former University employee.   On\nDecember 27, 2023,  Mr. LeRoy submitted a supplemental answer continuing to contest the\nUniversity' s claim that the media rights deal is not a public record of the University.   \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2022);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006).   A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1.2 (West 2022).   \n\nThe adequacy of a public body' s search for responsive records is judged by a\n\nstandard of reasonableness and depends upon the particular facts of the case.   Better Government\nAss'n v. City of Chicago,  2020 IL App (1st)  190038, ¶  31.  \" Although a public body is not\nrequired to perform an exhaustive search of every possible location,  the body must construe\nFOIA requests liberally and search those places that are 'reasonably likely to contain responsive\nrecords.'\"   Better Government Ass'n, 2020 IL App ( 1st)  190038, ¶  31 (quoting Judicial Watch, \nInc. v. U.S.  Department of Justice, 373 F. Supp.  3d 120, 126 ( D.D.C. 2019)).   \n\nIn its non- confidential answers in this matter and in the information it submitted\nconfidentially,  the University described measures it took to search the records in its possession\nfor the Big Ten media rights deal and other related records.   In particular,  the University\nexplained that it conferred with Athletic Director Whitman and DIA Chief Operating Officer\n\n45 ILCS 140/7(2) (West 2023 Supp.). \n\nand University of Illinois ( April 16, 2015).  \n\n5Amended and Restated Assignment of Rights Agreement between The Big Ten Conference,  Inc. \n\nand University of Illinois, §§ 1, 2(a) ( April 16, 2015).   \n\n6Amended and Restated Assignment of Rights Agreement between The Big Ten Conference,  Inc. \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 4\n\nDenny,  who are the personnel most likely to have knowledge of the University' s possession of\nthe Big Ten media rights deal,  and they confirmed that the University did not have that record in\nits possession.   Although,  as discussed further below,  Mr. LeRoy strenuously disputes the\nUniversity' s claim that it does not possess the media rights deal via section 7(2) of FOIA, this\noffice has not received information from which it could conclude that the University failed to\nadequately search the records in its physical custody.   \n\nThe remaining question is whether any media rights contract the Conference\n\nentered into for the University' s benefit,  that is not in the University' s physical custody,  is\nconsidered the University' s public record for purposes of FOIA.   \n\nSection 7(2) of FOIA\n\nSection 7(2) of FOIA provides: \n\nA public record that is not in the possession of a public\n\nbody but is in the possession of a party with whom the agency has\nfunction on behalf of the\ncontracted to perform a governmental\npublic body,  and that directly relates to the governmental\nfunction and is not otherwise exempt under this Act, shall be\nconsidered a public record of the public body,  for purposes of this\nAct.  (Emphasis added.)   \n\nTherefore,  the applicability of section 7(2) in this matter depends on whether:  ( 1) the University\nhas contracted the Conference to perform a \" governmental\nagreement at issue \" directly relates\"  to a governmental\n\nfunction\";  and ( 2) whether the\n\nfunction. \n\nThe Illinois Supreme Court has construed the term \" governmental\npurposes of section 7(2) in accordance with the Black' s Law Dictionary definition of that term:  \n\nfunction\"  for\n\na government agency' s conduct that is expressly or impliedly mandated or authorized by\n\nconstitution,  statute,  or other law and that is carried out for the benefit of the general public.\"'  \nBetter Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, ¶  63 (quoting Black' s\nLaw Dictionary 812 ( 10th ed. 2014)).   The Illinois Supreme Court explained that \" section 7(2) \nwas the legislature' s response to 'the privatization of government responsibilities and its impact\non the right of public information access and transparency'  and that this section ' ensures that\ngovernmental entities must not be permitted to avoid their disclosure obligations by contractually\ndelegating their responsibility to a private entity.'\"   Rushton v. Department of Corrections,  2019\nIL 124552, ¶  28 (quoting Better Government Ass'n, 2017 IL 121124, ¶  62).   \n\nThe University' s non- confidential response described its relationship with the\n\nConference: \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 5\n\nThe]  University granted its rights to monetize any display of\nsports-  related competition to the Conference decades ago.  This is\nthe case for conferences across the country.  In each conference,  the\nmember-  institutions grant their conference media rights to\nnegotiate with broadcasting companies.  Logistically,  a system\nwhere each and every university and college across the country\nnegotiates their own media contracts would quickly become\nunmanageable.  Correspondingly,  the Conference enters into deals\nand media rights agreements in furtherance of a revenue-  sharing\npool.[ 7]  \n\nThe University also provided Mr. LeRoy and this office with a copy of the Assignment\nconfirming that it had in fact contracted with the Conference.   This office' s review of the\nAssignment between the two entities reflects that the University has transferred to the\nConference \" the right, title and interest that the [ University],  directly or indirectly,  has or may\nhereafter acquire to telecast or distribute,  live or delayed,  throughout the universe\" 8 all varsity\nathletic games,  matches,  contests,  or events,  among other things. 9 Additionally,  the Conference\nagreed to negotiate and enter into agreements to telecast or distribute games and ancillary\nprogramming,  and to distribute to the University revenue derived from those agreements. 10\nNews media reports indicate that the Big 10 generated almost $ 880 million in revenue in fiscal\nyear 2023,  and distributed more than $ 60 million to the University. 11\n\nBoth the plain language of section 7(2) of FOIA and Illinois Appellate Court\n\nopinions interpreting that provision support the conclusion that the Conference was contracted to\nperform a governmental\ndeal.   As referenced above, \"[ g] overnmental\nconduct that is expressly or impliedly mandated or authorized by constitution,  statute,  or other\n\nfunction on behalf of the University in carrying out the media rights\nfunction\"  is defined as \"[ a]  government agency' s\n\n7Letter from Kristen Ruby,  Director of External Relations and Communications and Chief Records\nOfficer,  University of Illinois System,  to Matthew G. Goodman,  Assistant Attorney General,  Public Access Bureau, \nOffice of the Illinois Attorney General ( April 4, 2023,  at 2-3).  \n\nand University of Illinois, §  2 (April 16, 2015).  \n\n8Amended and Restated Assignment of Rights Agreement between The Big Ten Conference,  Inc. \n\nand University of Illinois, § 2(a) ( April 16, 2015). \n\n9Amended and Restated Assignment of Rights Agreement between The Big Ten Conference,  Inc. \n\nand University of Illinois, § 8 (April 16, 2015). \n\n10Amended and Restated Assignment of Rights Agreement between The Big Ten Conference,  Inc. \n\n11Steve Berkowitz,  Big Ten outpaced SEC with $880 million in revenue for 2023 fiscal year with\n\nmost schools getting $ 60.5 million,  USA Today, ( May 21, 2024), \nhttps:// www. usatoday. com/ story/ sports/ college/ 2024/ 05/20/big- ten- sec- revenue- 2023- fiscal- year/ 73772300007/.   \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 6\n\nlaw and that is carried out for the benefit of the general public.\"  ( Emphasis added.)   Black' s\nLaw Dictionary 840 ( 11th ed. 2019).   Section 1 of the Televised University Athletics Act 12\ngrants the governing boards or administration of State- supported universities the authority to\ncontract for the highest and best offers for television rights agreements for intercollegiate\nathletics games and contests that are not under contract for exclusive showing on a national\ntelevision network.   The Assignment\nengage in conduct on behalf of the University that is expressly authorized by law.  The\nAssignment also reflects that negotiating and entering into telecast and distribution rights\nagreements is not a corporate or business undertaking merely for the University' s corporate\nbenefit,  but an act involving a recreational benefit for the general public of making University\nathletic contests of interest to the public widely viewable while also remitting large sums of\nmoney to the public body. \n\nis a contract that plainly grants the Conference the right to\n\nFurther,  the University' s response to this office acknowledged that it entered into\nthe agreement to simplify the process of negotiating media contracts.   In College of DuPage, the\ncourt held that a foundation conducting fundraising activities for the college was performing a\nfunction for the college for purposes of section 7(2) of FOIA.  In so concluding, \ngovernmental\nthe court emphasized that \"[ i]f the Foundation did not undertake these responsibilities,  the\nCollege would necessarily do so itself[.]\"   College of DuPage,  2017 IL App (2d) 160274, ¶  50.  \nAnd, in Metropolitan Pier, the court noted that if the Metropolitan Pier and Exposition Authority\nMPEA)— a public body created to develop Navy Pier— had itself entered into the leases and\nother agreements sought by the FOIA requester,  MPEA would have had a duty to disclose them; \nthe fact that the leases and other agreements were entered into by the non- profit entity MPEA\nhad contracted with to operate Navy Pier for the benefit of the public did not remove MPEA\nfrom responsibility for those records under FOIA.  Metropolitan Pier, 2020 IL App (1st)  190697, \n23, 27.  Similarly,  if the University had not assigned to the Conference its right to telecast or\n\ndistribute its sporting events,  the University undoubtedly would have sought to monetize such\nrights itself, and any such media rights agreement would plainly be subject to disclosure pursuant\nto FOIA.  See 5 ILCS 140/ 2.5 (West 2022) (\" All records relating to the obligation,  receipt,  and\nuse of public funds of the State,  units of local government,  and school districts are public records\nsubject to inspection and copying by the public.\"). \n\nHaving concluded that the University has contracted the Conference to perform a\nfunction\",  it next must be determined whether the agreement at issue \" directly\n\nfunction.   A public body that contracts with another entity to perform\nfunction on its behalf has a duty to request and obtain any responsive record that\n\ngovernmental\nrelates\"  to a governmental\na governmental\ndirectly relates\"  to the governmental\nentity, and to provide the requester with a copy of the record unless it falls within one or more of\nFOIA's exemptions.   See Ill. Att'y Gen.  Pub.  Acc. Op. No. 20-006, issued July 27, 2020,  at 7\nconcluding that policies and data pertaining to head injuries in possession of the healthcare\n\nfunction which is in the physical custody of the other\n\n12110 ILCS 75/1 (West 2022).  \n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 7\n\nvendor for the Illinois Department of Corrections ( IDOC)  were public records of IDOC because\nfunction of providing medical care to inmates).   FOIA\nthey directly related to the governmental\ndoes not define the term \" directly relates.\"   The Illinois Appellate Court has explained that \"[ t]his\nrequirement makes clear the legislature' s intention that the general public may not access all of a\nthird party' s records merely because it has contracted with a public body to perform a\ngovernmental\nCollege of DuPage, 2017 IL App (2d) 160274, ¶  53.  Still, \"the term ' directly relates'  must be\nliberally construed in light of FOIA' s purpose.\"   Rushton,  2019 IL App ( 4th) 180206, ¶  30.   \n\nfunction.   FOIA is not concerned with private affairs.\"   Chicago Tribune v. \n\nRecords that reflect the governmental\n\nfunction an entity has been contracted to\nfunction and\n\nperform and that shed light on its performance directly relate to the governmental\ntherefore are subject to disclosure under section 7(2) of FOIA.  College of DuPage, 2017 IL App\n2d) 160274, ¶  55 (affirming trial court decision that a federal grand jury subpoena in a\nfoundation' s possession directly related to the governmental\ncontracted to perform for college of managing all of college' s private donations because college\nnever asserted that the subpoena concerned matters other than those donation management\nobligations).   In Rushton,  the Illinois Appellate Court concluded that a settlement agreement\nbetween IDOC' s contractor for inmate medical care and the estate of a prisoner who allegedly\ndied from inadequate medical care directly related to a governmental\nfunction because prisons\nare charged with ensuring inmates receive adequate medical care and the settlement agreement\narose out of such medical care.   Rushton,  2019 IL App (4th) 180206, ¶¶  31- 33. \n\nfunction that the foundation was\n\nAlthough the Conference' s media rights contract has not been provided for this\n\noffice's confidential review,  it necessarily directly relates to the governmental\nnegotiating and entering into agreements for television rights to University athletic games and\nevents.   Section 7(2) applies to records in the possession of a third party \" that are truly related to\nits exercise of a government function and not those records that are only incidentally or\ntangentially related to the contract.\"   Rushton,  2019 IL 124552, ¶  29.  The media rights\nagreement cannot be \" only incidentally or tangentially related to the contract\"  between the\nUniversity and the Conference given that the Assignment grants the Conference the right to\nnegotiate and enter into telecast and distribution agreements pertaining to the University' s\nsporting events.    \n\nfunction of\n\nIn its April 27, 2023,  response to this office concerning section 7(2) of FOIA, the\n\nUniversity stated:  \n\nPresumably,  the need to consider the applicability of\nSection 7(2) is to determine whether the University is obligated to\nattempt to retrieve any responsive records from the Big Ten.  As a\nmatter of good faith, and in the spirit of transparency,  the\nUniversity has taken it upon itself to request the Media Rights Deal\nfrom the Big Ten once again.   The University was again\n\n\fMr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 8\n\ndenied.   Please note,  this action is not intended to be interpreted as\nany explicit or implicit acceptance of the applicability of Section\n7(2) here.  \n\nThe University recently experienced a similar situation, \n\nwhere the University did not possess requested records.   An\noutside organization was asked to provide the University with the\nrequested records to produce to the requestor,  but the organization\ndeclined.   Under these circumstances,  the University was found to\nhave appropriately searched for and requested records.  \nCitation.][ 13] \n\nThe University relied upon determination letter Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 74112,  issued\nMarch 21, 2023,  to support its argument that it had satisfied its obligations under FOIA when it\nrequested the media rights contract from the Conference but was denied.   The University' s\nreliance,  however,  is misplaced because the records that were the subject of that determination\nletter,  which were in the possession of an academic honor society,  were not considered the\nUniversity' s public records under section 7(2) of FOIA.  Ill. Att'y Gen.  PAC Req.  Rev. Ltr. \n74112,  at n.3. (\" Because the Society is not performing a governmental\nUniversity,  the Society' s records relating to the University are not the University' s public\nrecords.\").   In this matter,  the media rights contract is considered the University' s public record\nbecause it directly relates to a governmental\nperform on behalf of the University. \n\nfunction that the Conference was contracted to\n\nfunction on behalf of the\n\nFor the reasons expressed above,  the Public Access Bureau concludes that the\n\nUniversity improperly denied Mr. LeRoy' s FOIA request.   This office requests that the\nUniversity take additional measures to obtain the media rights agreement from the Conference\nand provide a copy to Mr. LeRoy.   In particular,  the University should alert the Conference to the\nrequirements of section 7(2) of FOIA,  and provide the Conference with a copy of this\ndetermination detailing the University' s disclosure obligations.   Going forward,  the University\nshould ensure that any contract it enters into with a third party to perform a governmental\nfunction includes a mechanism for the University to obtain its own public records from the\ncontractor. \n\nOfficer,  to [ Matt]  Goodman,  Assistant Attorney General,  Public Access Bureau ( April 27, 2023),  at 2.  \n\n13Letter from Kirsten Ruby,  Director of External Relations and Communication and Chief Records\n\n\fr. Michael H. LeRoy\nMs. Adrienne Nazon\nMarch 19, 2025\nPage 9\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   This letter shall serve to close this matter.   Please\ncontact me at matthew. goodman@ilag. gov if you have questions or would like to discuss this\nmatter.   Thank you.  \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n75894 f 72 improper univ\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A university's media rights contract with a conference","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-75894/","full_text":"March 19, 2025\n\nVia electronic mail\nMr. Michael H. LeRoy\nProfessor\nUniversity of Illinois Urbana- Champaign\nSchool of Labor & Employment Relations and College of Law\n[street address redacted for site publication -- see original PDF]\nmhl@illinois. edu\n\nVia electronic mail\nMs. Adrienne Nazon\nVice President, External Relations and Communications\n\nand Chief Records Officer\nUniversity of Illinois System\n108 Henry Administration Building, MC370\n506 South Wright Street\nUrbana, Illinois 61801\nFOIA- OUR@mx. uillinois. edu\n\nRE: FOIA Request for Review – 2023 PAC 75894; University No. 23-331\n\nDear Mr. LeRoy and Ms. Nazon: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2023 Supp.)). For the reasons that follow, the\nPublic Access Bureau concludes that the University of Illinois at Urbana- Champaign\nUniversity) improperly denied Mr. Michael LeRoy's March 8, 2023, FOIA request. \n\nOn that date, Mr. LeRoy submitted a FOIA request to the University seeking a\ncopy of \"the contract that is popularly known as the 'Big Ten media rights deal[,]'\" and related\n\nrecords. 1 On March 15, 2023, the University responded, stating that it searched but located no\nresponsive records. The University indicated that the reason it possessed no responsive records\nis that \" each Big Ten institution has given television rights to the Big Ten Conference. \nAgreements are between the Conference and each respective television partner.\" 2 On March 17, \n2023, Mr. LeRoy submitted the above- referenced Request for Review contesting the University's\nresponse as to the Big Ten media rights deal. He explained in detail the reasons why he believed\nthe University possesses that contract directly or indirectly, including that University\nadministrators such as Athletic Director Josh Whitman must have reviewed the agreement based\non statements in the news media and the fiscal implications of the deal for the University. \n\nOn March 24, 2023, this office forwarded a copy of the Request for Review to the\n\nUniversity and asked it to provide a detailed description of the measures taken to search for\nresponsive records, including a description of the specific extranets or other shared\nrecordkeeping systems that were searched, the method of that search, and the individuals who\nwere consulted. This office also requested a detailed description of the relationship between the\nUniversity and the Big Ten Conference (Conference) in relation to the negotiation and execution\nof any contract for media rights, and a copy of any foundational record(s) evincing the terms of\nthe University's delegation of rights to the Conference and any mutual obligations. \n\nOn April 4, 2023, the University responded by submitting two versions of its\n\nanswer: a complete version for this office's confidential review and a redacted version to\nforward to Mr. LeRoy. In its non- confidential answer, the University stated that its FOIA Office\npersonnel had consulted with the University's Division of Intercollegiate Athletics (DIA) \nAssociate Athletic Director for Media Relations, Kent Brown, who reported that the University\ndid not possess the media rights deal and subsequently received confirmation of the same from\nDIA Chief Operating Officer Roger Denny and Athletic Director Whitman. \n\nOn April 6, 2023, this office forwarded a copy of the University's redacted answer\n\nto Mr. LeRoy; on that same date, Mr. LeRoy submitted a reply. Mr. LeRoy argued that the\nmedia rights deal meets the definition of \"public record\" in FOIA 3 because it pertains to the\ntransaction of public business and was prepared, in part, for the University's benefit. \n\nOn April 12, 2023, this office sent a follow- up e-mail to the University and asked\n\nit to address whether the University had entered into any type of contract with the Conference, \ntogether with an explanation of the relationship between the University and the Conference and\n\nof Law, University of Illinois at Urbana- Champaign, to University of Illinois FOIA (March 8, 2023). \n\n1E- mail from Michael H. LeRoy, Professor, School of Labor & Employment Relations & College\n\n2E- mail from Kirsten Ruby, Director, External Relations and Communications and Chief Records\n\nthe applicability of section 7(2) of FOIA. 4 On April 27, 2023, the University provided a\nsupplemental written response. On May 10, 2023, this office forwarded a copy of the\nUniversity's response to Mr. LeRoy; on the same date, Mr. LeRoy submitted a reply addressing\nthe applicability of section 7(2) of FOIA. \n\nOn October 30, 2023, the University unexpectedly provided this office and Mr. \n\nLeRoy with a copy of an April 16, 2015, amended assignment of rights agreement (Assignment) \nbetween the University and the Conference. 5 Among other things, the Assignment provides the\nConference with sole authority to negotiate and execute agreements concerning the telecast and\ndistribution rights to the University's varsity athletic games, contests, and related events. 6 The\nUniversity stated that it had recently discovered this document, which it had previously denied\npossessing, while cleaning out the office of an unspecified former University employee. On\nDecember 27, 2023, Mr. LeRoy submitted a supplemental answer continuing to contest the\nUniversity's claim that the media rights deal is not a public record of the University. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2022). \n\nThe adequacy of a public body's search for responsive records is judged by a\n\nstandard of reasonableness and depends upon the particular facts of the case. Better Government\nAss'n v. City of Chicago, 2020 IL App (1st) 190038, ¶ 31. \" Although a public body is not\nrequired to perform an exhaustive search of every possible location, the body must construe\nFOIA requests liberally and search those places that are 'reasonably likely to contain responsive\nrecords.'\" Better Government Ass'n, 2020 IL App (1st) 190038, ¶ 31 (quoting Judicial Watch, \nInc. v. U.S. Department of Justice, 373 F. Supp. 3d 120, 126 (D.D.C. 2019)). \n\nIn its non- confidential answers in this matter and in the information it submitted\nconfidentially, the University described measures it took to search the records in its possession\nfor the Big Ten media rights deal and other related records. In particular, the University\nexplained that it conferred with Athletic Director Whitman and DIA Chief Operating Officer\n\n45 ILCS 140/7(2) (West 2023 Supp.). \n\nDenny, who are the personnel most likely to have knowledge of the University's possession of\nthe Big Ten media rights deal, and they confirmed that the University did not have that record in\nits possession. Although, as discussed further below, Mr. LeRoy strenuously disputes the\nUniversity's claim that it does not possess the media rights deal via section 7(2) of FOIA, this\noffice has not received information from which it could conclude that the University failed to\nadequately search the records in its physical custody. \n\nThe remaining question is whether any media rights contract the Conference\n\nentered into for the University's benefit, that is not in the University's physical custody, is\nconsidered the University's public record for purposes of FOIA. \n\nSection 7(2) of FOIA\n\nSection 7(2) of FOIA provides: \n\nA public record that is not in the possession of a public\n\nbody but is in the possession of a party with whom the agency has\nfunction on behalf of the\ncontracted to perform a governmental\npublic body, and that directly relates to the governmental\nfunction and is not otherwise exempt under this Act, shall be\nconsidered a public record of the public body, for purposes of this\nAct. (Emphasis added.) \n\nTherefore, the applicability of section 7(2) in this matter depends on whether: (1) the University\nhas contracted the Conference to perform a \" governmental\nagreement at issue \" directly relates\" to a governmental\n\nfunction\"; and (2) whether the\n\nfunction. \n\nThe Illinois Supreme Court has construed the term \" governmental\npurposes of section 7(2) in accordance with the Black's Law Dictionary definition of that term: \n\nfunction\" for\n\na government agency's conduct that is expressly or impliedly mandated or authorized by\n\nconstitution, statute, or other law and that is carried out for the benefit of the general public.\"' \nBetter Government Ass'n v. Illinois High School Ass'n, 2017 IL 121124, ¶ 63 (quoting Black's\nLaw Dictionary 812 (10th ed. 2014)). The Illinois Supreme Court explained that \" section 7(2) \nwas the legislature's response to 'the privatization of government responsibilities and its impact\non the right of public information access and transparency' and that this section ' ensures that\ngovernmental entities must not be permitted to avoid their disclosure obligations by contractually\ndelegating their responsibility to a private entity.'\" Rushton v. Department of Corrections, 2019\n\nThe] University granted its rights to monetize any display of\nsports- related competition to the Conference decades ago. This is\nthe case for conferences across the country. In each conference, the\nmember- institutions grant their conference media rights to\nnegotiate with broadcasting companies. Logistically, a system\nwhere each and every university and college across the country\nnegotiates their own media contracts would quickly become\nunmanageable. Correspondingly, the Conference enters into deals\nand media rights agreements in furtherance of a revenue- sharing\npool.[ 7] \n\nThe University also provided Mr. LeRoy and this office with a copy of the Assignment\nconfirming that it had in fact contracted with the Conference. This office's review of the\nAssignment between the two entities reflects that the University has transferred to the\nConference \" the right, title and interest that the [ University], directly or indirectly, has or may\nhereafter acquire to telecast or distribute, live or delayed, throughout the universe\" 8 all varsity\nathletic games, matches, contests, or events, among other things. 9 Additionally, the Conference\nagreed to negotiate and enter into agreements to telecast or distribute games and ancillary\nprogramming, and to distribute to the University revenue derived from those agreements. 10\nNews media reports indicate that the Big 10 generated almost $ 880 million in revenue in fiscal\nyear 2023, and distributed more than $ 60 million to the University. 11\n\nBoth the plain language of section 7(2) of FOIA and Illinois Appellate Court\n\nopinions interpreting that provision support the conclusion that the Conference was contracted to\nperform a governmental\ndeal. As referenced above, \"[ g] overnmental\nconduct that is expressly or impliedly mandated or authorized by constitution, statute, or other\n\nfunction on behalf of the University in carrying out the media rights\nfunction\" is defined as \"[ a] government agency's\n\n7 Letter from Kristen Ruby, Director of External Relations and Communications and Chief Records\nOfficer, University of Illinois System, to Matthew G. Goodman, Assistant Attorney General, Public Access Bureau, \nOffice of the Illinois Attorney General (April 4, 2023, at 2-3). \n\nand University of Illinois, § 2 (April 16, 2015). \n\n8 Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\nand University of Illinois, § 2(a) (April 16, 2015). \n\n9 Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\nand University of Illinois, § 8 (April 16, 2015). \n\n10 Amended and Restated Assignment of Rights Agreement between The Big Ten Conference, Inc. \n\n11 Steve Berkowitz, Big Ten outpaced SEC with $880 million in revenue for 2023 fiscal year with\n\nmost schools getting $ 60.5 million, USA Today, (May 21, 2024), \nhttps:// www. usatoday. com/ story/ sports/ college/ 2024/ 05/20/big- ten- sec- revenue- 2023- fiscal- year/ 73772300007/. \n\nlaw and that is carried out for the benefit of the general public.\" (Emphasis added.) Black's\nLaw Dictionary 840 (11th ed. 2019). Section 1 of the Televised University Athletics Act 12\ngrants the governing boards or administration of State- supported universities the authority to\ncontract for the highest and best offers for television rights agreements for intercollegiate\nathletics games and contests that are not under contract for exclusive showing on a national\ntelevision network. The Assignment\nengage in conduct on behalf of the University that is expressly authorized by law. The\nAssignment also reflects that negotiating and entering into telecast and distribution rights\nagreements is not a corporate or business undertaking merely for the University's corporate\nbenefit, but an act involving a recreational benefit for the general public of making University\nathletic contests of interest to the public widely viewable while also remitting large sums of\nmoney to the public body. \n\nis a contract that plainly grants the Conference the right to\n\nFurther, the University's response to this office acknowledged that it entered into\nthe agreement to simplify the process of negotiating media contracts. In College of DuPage, the\ncourt held that a foundation conducting fundraising activities for the college was performing a\nfunction for the college for purposes of section 7(2) of FOIA. In so concluding, \ngovernmental\nthe court emphasized that \"[ i]f the Foundation did not undertake these responsibilities, the\nCollege would necessarily do so itself[.]\" College of DuPage, 2017 IL App (2d) 160274, ¶ 50. \nAnd, in Metropolitan Pier, the court noted that if the Metropolitan Pier and Exposition Authority\nMPEA)— a public body created to develop Navy Pier— had itself entered into the leases and\nother agreements sought by the FOIA requester, MPEA would have had a duty to disclose them; \nthe fact that the leases and other agreements were entered into by the non- profit entity MPEA\nhad contracted with to operate Navy Pier for the benefit of the public did not remove MPEA\nfrom responsibility for those records under FOIA. Metropolitan Pier, 2020 IL App (1st) 190697, \n23, 27. Similarly, if the University had not assigned to the Conference its right to telecast or\n\ndistribute its sporting events, the University undoubtedly would have sought to monetize such\nrights itself, and any such media rights agreement would plainly be subject to disclosure pursuant\nto FOIA. See 5 ILCS 140/ 2.5 (West 2022) (\" All records relating to the obligation, receipt, and\nuse of public funds of the State, units of local government, and school districts are public records\nsubject to inspection and copying by the public.\"). \n\nHaving concluded that the University has contracted the Conference to perform a\nfunction\", it next must be determined whether the agreement at issue \" directly\n\nfunction. A public body that contracts with another entity to perform\nfunction on its behalf has a duty to request and obtain any responsive record that\n\ngovernmental\nrelates\" to a governmental\na governmental\ndirectly relates\" to the governmental\nentity, and to provide the requester with a copy of the record unless it falls within one or more of\nFOIA's exemptions. See Ill. Att'y Gen. Pub. Acc. Op. No. 20-006, issued July 27, 2020, at 7\nconcluding that policies and data pertaining to head injuries in possession of the healthcare\n\nvendor for the Illinois Department of Corrections (IDOC) were public records of IDOC because\nfunction of providing medical care to inmates). FOIA\nthey directly related to the governmental\ndoes not define the term \" directly relates.\" The Illinois Appellate Court has explained that \"[ t]his\nrequirement makes clear the legislature's intention that the general public may not access all of a\nthird party's records merely because it has contracted with a public body to perform a\ngovernmental\nCollege of DuPage, 2017 IL App (2d) 160274, ¶ 53. Still, \"the term ' directly relates' must be\nliberally construed in light of FOIA's purpose.\" Rushton, 2019 IL App (4th) 180206, ¶ 30. \n\nfunction. FOIA is not concerned with private affairs.\" Chicago Tribune v. \n\nRecords that reflect the governmental\n\nfunction an entity has been contracted to\nfunction and\n\nperform and that shed light on its performance directly relate to the governmental\ntherefore are subject to disclosure under section 7(2) of FOIA. College of DuPage, 2017 IL App\n2d) 160274, ¶ 55 (affirming trial court decision that a federal grand jury subpoena in a\nfoundation's possession directly related to the governmental\ncontracted to perform for college of managing all of college's private donations because college\nnever asserted that the subpoena concerned matters other than those donation management\nobligations). In Rushton, the Illinois Appellate Court concluded that a settlement agreement\nbetween IDOC's contractor for inmate medical care and the estate of a prisoner who allegedly\ndied from inadequate medical care directly related to a governmental\nfunction because prisons\nare charged with ensuring inmates receive adequate medical care and the settlement agreement\narose out of such medical care. Rushton, 2019 IL App (4th) 180206, ¶¶ 31- 33. \n\nfunction that the foundation was\n\nAlthough the Conference's media rights contract has not been provided for this\n\noffice's confidential review, it necessarily directly relates to the governmental\nnegotiating and entering into agreements for television rights to University athletic games and\nevents. Section 7(2) applies to records in the possession of a third party \" that are truly related to\nits exercise of a government function and not those records that are only incidentally or\ntangentially related to the contract.\" Rushton, 2019 IL 124552, ¶ 29. The media rights\nagreement cannot be \" only incidentally or tangentially related to the contract\" between the\nUniversity and the Conference given that the Assignment grants the Conference the right to\nnegotiate and enter into telecast and distribution agreements pertaining to the University's\nsporting events. \n\nfunction of\n\nIn its April 27, 2023, response to this office concerning section 7(2) of FOIA, the\n\nUniversity stated: \n\nPresumably, the need to consider the applicability of\nSection 7(2) is to determine whether the University is obligated to\n\ndenied. Please note, this action is not intended to be interpreted as\nany explicit or implicit acceptance of the applicability of Section\n7(2) here. \n\nThe University recently experienced a similar situation, \n\nwhere the University did not possess requested records. An\noutside organization was asked to provide the University with the\nrequested records to produce to the requestor, but the organization\ndeclined. Under these circumstances, the University was found to\nhave appropriately searched for and requested records. \nCitation.][ 13] \n\nThe University relied upon determination letter Ill. Att'y Gen. PAC Req. Rev. Ltr. 74112, issued\nMarch 21, 2023, to support its argument that it had satisfied its obligations under FOIA when it\nrequested the media rights contract from the Conference but was denied. The University's\nreliance, however, is misplaced because the records that were the subject of that determination\nletter, which were in the possession of an academic honor society, were not considered the\nUniversity's public records under section 7(2) of FOIA. Ill. Att'y Gen. PAC Req. Rev. Ltr. \n74112, at n.3. (\" Because the Society is not performing a governmental\nUniversity, the Society's records relating to the University are not the University's public\nrecords.\"). In this matter, the media rights contract is considered the University's public record\nbecause it directly relates to a governmental\nperform on behalf of the University. \n\nfunction that the Conference was contracted to\n\nfunction on behalf of the\n\nFor the reasons expressed above, the Public Access Bureau concludes that the\n\nUniversity improperly denied Mr. LeRoy's FOIA request. This office requests that the\nUniversity take additional measures to obtain the media rights agreement from the Conference\nand provide a copy to Mr. LeRoy. In particular, the University should alert the Conference to the\nrequirements of section 7(2) of FOIA, and provide the Conference with a copy of this\ndetermination detailing the University's disclosure obligations. Going forward, the University\nshould ensure that any contract it enters into with a third party to perform a governmental\nfunction includes a mechanism for the University to obtain its own public records from the\ncontractor. \n\nOfficer, to [ Matt] Goodman, Assistant Attorney General, Public Access Bureau (April 27, 2023), at 2. \n\n13 Letter from Kirsten Ruby, Director of External Relations and Communication and Chief Records\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. Please\ncontact me at matthew. goodman@ilag. gov if you have questions or would like to discuss this\nmatter. Thank you. \n\nVery truly yours, \n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n75894 f 72 improper univ"}
{"id":1004,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-20","case_number":null,"request_numbers":["76410"],"title":"Village of Hillside improperly charged FOIA fees for non-responsive records","filename":"76410, issued July 20, 2023.pdf","rel_path":null,"word_count":1997,"summary":"The requester challenged a $52.50 fee charged by the Village of Hillside for records related to a specific property. The PAC determined that the Village improperly assessed fees for records that were not responsive to the original request.","plain_summary":"A citizen requested government documents regarding a specific property, and the Village of Hillside charged a fee to provide them. The Attorney General's office found that the Village incorrectly charged the requester for documents that were not actually part of the original request. The matter was closed after the PAC provided this guidance to the parties.","holding":"The Village of Hillside improperly assessed a fee for records provided in response to a FOIA request that were not responsive to the request.","legal_question":"Whether a public body may charge a fee for records provided in response to a FOIA request that are not responsive to the scope of that request.","disposition":"violation_found","primary_statute":["5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Village of Hillside","requesting_party":"Anonymous (redacted in source)","pac_outcome":"Improperly assessed fees","pac_law_type":null,"subject_category":"fees","subject_description":"The requester sought various government records concerning a specific property address in Hillside, Illinois.","ocr_status":"ok","ocr_quality":95.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/6/6_b/76410%2C%20issued%20July%2020%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["fees","FOIA request","responsive records","public records"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 20, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Patrick E. Deady\nSchoenberg Finkel Beederman Bell Glazer, LLC\n300 South Wacker Drive,  Suite 1500\nChicago, Illinois 60606\npatrick. deady@sfbbg. com\n\nRE:   FOIA Request for Review –  2023 PAC 76410\n\nDear\n\nand Mr. Deady: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)).  For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Hillside ( Village)  improperly assessed a fee\nfor a portion of records it provided in response to\nMarch 31, 2023, FOIA\nrequest which were not responsive to that request. \n\nOn that date, \n\nsubmitted a FOIA request to the Village \"[ s] eeking\n\ncopies of Hillside government written documents and written communications including but not\nlimited to emails,  building permits,  building inspections,  business licenses,  zoning documents\nand all other subjects for the period of January 1, 2005 to present day for the property at 4329\nButterfield Rd.  Hillside,  IL 60162.\" 1  ( Emphasis added.)   He did not specify a format in which he\nwished to obtain the records.  On April 27, 2023, the Village assessed\nfee to obtain the records he was seeking,  which\nVillage provided\nApril 28, 2023, \n\nwith records in paper format as well as on a compact disc.  On\n\nsubmitted the above- referenced Request for Review contesting\n\npaid.   On April 28,  2023,  the\n\na $52.50\n\n1FOIA request from\n\nto Village of Hillside (March 31, 2023). \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 2\n\nthe fee assessed by the Village.   He alleged that most of the records provided by the Village were\nnot responsive to his FOIA request. \n\nOn May 9, 2023, this office forwarded a copy of the Request for Review to the\nVillage and asked it to provide a detailed explanation of the legal and factual bases for the fee\nassessed in response to\nexplanation of how each record is responsive to\nVillage responded.  On that same date, this office forwarded the Village's response to\n\nFOIA request, copies of the responsive records, and an\nrequest.   On May 17,  2023,  the\n\nOn June 1, 2023,  he replied. \n\nDETERMINATION\n\nSection 6 of FOIA ( 5 ILCS 140/ 6 ( West 2022))  provides the authority for a public\n\nbody to charge fees for certain records.  Section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)) \nprovides,  in pertinent part: \n\nExcept when a fee is otherwise fixed by statute,  each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person,  of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\nand white,  letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall\nnot exceed 15 cents per page.  ( Emphasis added.) \n\nIn its response to this office,  the Village noted that\n\nrequest did\n\nnot request copies of records in electronic format.  The Village stated that, because some of the\nprovided records were also provided to\ncounted only 400 of the 489 pages of provided records to calculate the fee.  The Village therefore\ndid not charge\nfor the first 50 pages,  but charged him 15 cents per page for the\nremaining 350 pages for a total of $52.50.2\ncontends that many of the records\nprovided by the Village were not responsive to his request and,  therefore,  the fee assessed for\nthose records is improper. \n\npursuant to previous FOIA requests,  it\n\nIn light of the \"policy embodied in the FOIA requiring disclosure of information\nin government documents unless it falls within the reach of one of the specified exemptions,  the\n\n2In his reply, \n\nnoted that the paper records and records provided on a compact disc\n\nwere not identical and provided arguments regarding the records in both formats.  However, the Village only\nassessed a fee for the paper records, so this office's review is limited to whether those records were responsive to\n\nrequest. \n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 3\n\nagency should err on the side of liberally construing what material falls within the scope of the\nrequest.\"   Dunaway v. Webster, 519 F. Supp. 1059, 1083 (N.D. Cal. 1981); see also, e.g., People\nfor the Ethical Treatment of Animals v. National\nCir. 2014) (\" Agencies have 'a duty to construe a FOIA request liberally.'\"  (quoting Nation\nMagazine v. U.S.  Customs Service,  71 F.3d 885,  890 ( D.C. Cir. 1995))).   Ambiguities should be\nresolved in favor of disclosure.  LaCedra v. Executive Office for U.S. Attorneys, 317 F.3d 345, \n348 ( D.C. Cir. 2003) ( rejecting public body' s narrow construction of language used in request). \n\nInstitutes of Health,  745 F.3d 535,  541 ( D.C. \n\nrequest is the property of a longstanding\n\nIn its response,  the Village argued that all of the provided records were responsive\nrequest given the time period covered and the broad scope of subject matter.  \n\nto\nIt stated that the address specified in\nbusiness in the Village that has been involved in various Village processes as the business\nexpanded.   The Village noted that,  while the specified property is mentioned in only limited\nportions of some responsive documents, each of those documents are maintained by the Village\nas a single record.   These records include agenda packets for meetings of the Village Board of\nTrustees in which the specified property was addressed along with numerous other topics, as\nwell as a road construction project application under the Illinois Transportation Enhancement\nProgram that includes a notice sent to the property in question and involves work on the frontage\nof this property.   The Village asserted that its \" FOIA Officer attempted to be circumspect and\nsearched for only those Village records that referred to the specific address in the request,  4329\nButterfield Road, not Hillside Lumber more generally.\" 3\n\nIn his reply, \n\nargued in detail as to why he believed specific\n\nrecords,  including the agenda packets and road construction application,  were not responsive to\nhis request.  He argued that they have nothing to do with his FOIA request, \" which was specific\nto the PROPERTY at 4329 Butterfield Rd.  in Hillside.\" 4\nof these records, such as FOIA requests that\nto do with the Hillside government' s records for the 4329 Butterfield Rd.  property.\" 5\n\npreviously submitted \"have nothing\n\nfurther argued that some\n\nFOIA defines \" public records\"  as all records \" pertaining to the transaction of\n\npublic business, regardless of physical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or under the control of any\n\n3Letter from Patrick E. Deady, Village Attorney, Village of Hillside, to Benjamin J. Silver,  \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 17, 2023), \nat 4. \n\nBureau] ( June 1, 2023). \n\n4E- mail from\n\nto Benjamin Silver, [Assistant Attorney General], [ Public Access\n\nBureau] ( June 1, 2023). \n\n5E- mail from\n\nto Benjamin Silver, [Assistant Attorney General], [ Public Access\n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 4\n\npublic body.\"  ( Emphasis added.)   5 ILCS 140/ 2(c) ( West 2022).   This definition includes\ndocuments submitted to as well as created by the Village as part of a governmental process. \n\nWhile many of the records that the Village provided to\n\ndo not\n\npertain exclusively to the specified property,  the records are nonetheless responsive to the\nwording of the request when it is liberally construed as FOIA requires.  \nthat the Village should have provided \" specific information from the Hillside government\nsolely to the PROPERTY at 4329 Butterfield Rd. in Hillside for the time period requested.\" 6\nHowever,  the wording of the request more broadly sought \" Hillside government written\ndocuments and written communications including but not limited to emails, building permits, \nbuilding inspections,  business licenses,  zoning documents and all other subjects for the period\nof January 1, 2005 to present day for the property at 4329 Butterfield Rd.\"  (Emphasis added.)  \nMost of the records do refer to 4329 Butterfield Road and are records maintained by the Village\ngovernment.  Given the Village's obligation to liberally construe the FOIA request, this office is\nunable to conclude those documents are not responsive to the request even though many of them\ndo not exclusively concern 4329 Butterfield Road and contain a multitude of additional\nmay not find useful.  \ninformation that\n\nargued\n\nrelated\n\nHowever,  a portion of the records consist of documents that do not relate to the\n\nproperty at 4329 Butterfield Road.   Though the Village argues that it stores agenda packets as a\nsingle document, the agenda packets consist of numerous individual records; only a small portion\nof those records relate to the property at 4329 Butterfield Road.   Those discrete records are\nreadily segregable from unrelated records and do not constitute a single record for purposes of\nFOIA simply because the Village aggregated all of the individual records in agenda packets.  \nAdditionally, approximately five pages of the records described by the Village as \" Permits and\nZoning permit copies\"  appear to relate to properties owned by the owners of 4329 Butterfield\nRoad but not to that property itself.  These records also are not responsive to\nrequest for \" Hillside government written documents and written communications * * * \nproperty at 4329 Butterfield Rd. Hillside, IL 60162.\"  Therefore, the Public Access Bureau\nconcludes that the Village assessed an improper fee in response to\nMarch 31, \n2023, FOIA request by including the unresponsive portions of the agenda packets and permit\ncopies in calculating its fee for responsive records.   Accordingly,  this office requests that the\nVillage reassess the fee without including those pages and refund the difference to\n\nfor the\n\nThe Public Access Bureau is also charged with providing advice and education to\n\nthe public and public bodies.  15 ILCS 205/7(a), ( c) (West 2020).  To that end, \n\nBureau] ( June 1, 2023). \n\n6E- mail from\n\nto Benjamin Silver, [Assistant Attorney General, Public Access\n\n\fMr. Patrick E. Deady\nJuly 20, 2023\nPage 5\n\nmay wish to specify in future FOIA requests the format in which he wishes to receive records.   If\na requester requests a record in electronic format and the public body maintains the record\nelectronically, \" the public body shall furnish it in the electronic format specified by the requester, \nif feasible.  If it is not feasible to furnish the public records in the specified electronic format, \nthen the public body shall furnish it in the format in which it is maintained by the public body,  or\nin paper format at the option of the requester.\"   5 ILCS 140/6(a) ( West 2022).  However, \"[ t]he\nplain language of section 6(a) [ only]  requires a public body to provide records in electronic\nformat if the public body maintains those records in electronic format.  * * * [ S]ection 6(a) does\nnot require a public body to furnish in electronic format records maintained solely in paper\nformat, even if the public body has the resources to reproduce those records in PDF.\"  (Emphasis\nin original.).   Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 28697,  issued April 18, 2014,  at 2. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter serves to close this matter.  If you have\nany questions,  please contact me at benjamin. silver@ilag. gov or (773)  590- 7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n76410 f 6b fee proper improper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records concerning a specific property address","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76410/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 20, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Patrick E. Deady\nSchoenberg Finkel Beederman Bell Glazer, LLC\n300 South Wacker Drive, Suite 1500\nChicago, Illinois 60606\npatrick. deady@sfbbg. com\n\nRE: FOIA Request for Review – 2023 PAC 76410\n\nDear\n\nand Mr. Deady: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the Village of Hillside (Village) improperly assessed a fee\nfor a portion of records it provided in response to\nMarch 31, 2023, FOIA\nrequest which were not responsive to that request. \n\nOn that date, \n\nsubmitted a FOIA request to the Village \"[ s] eeking\n\ncopies of Hillside government written documents and written communications including but not\nlimited to emails, building permits, building inspections, business licenses, zoning documents\nand all other subjects for the period of January 1, 2005 to present day for the property at 4329\nButterfield Rd. Hillside, IL 60162.\" 1 (Emphasis added.) He did not specify a format in which he\nwished to obtain the records. On April 27, 2023, the Village assessed\nfee to obtain the records he was seeking, which\nVillage provided\nApril 28, 2023, \n\nwith records in paper format as well as on a compact disc. On\n\nsubmitted the above- referenced Request for Review contesting\n\npaid. On April 28, 2023, the\n\na $52.50\n\n1FOIA request from\n\nto Village of Hillside (March 31, 2023). \n\nthe fee assessed by the Village. He alleged that most of the records provided by the Village were\nnot responsive to his FOIA request. \n\nOn May 9, 2023, this office forwarded a copy of the Request for Review to the\nVillage and asked it to provide a detailed explanation of the legal and factual bases for the fee\nassessed in response to\nexplanation of how each record is responsive to\nVillage responded. On that same date, this office forwarded the Village's response to\n\nFOIA request, copies of the responsive records, and an\nrequest. On May 17, 2023, the\n\nOn June 1, 2023, he replied. \n\nDETERMINATION\n\nSection 6 of FOIA (5 ILCS 140/ 6 (West 2022)) provides the authority for a public\n\nbody to charge fees for certain records. Section 6(b) of FOIA (5 ILCS 140/6(b) (West 2022)) \nprovides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each public\nbody may charge fees reasonably calculated to reimburse its actual\ncost for reproducing and certifying public records and for the use, \nby any person, of the equipment of the public body to copy\nrecords. No fees shall be charged for the first 50 pages of black\nand white, letter or legal sized copies requested by a requester. \nThe fee for black and white, letter or legal sized copies shall\nnot exceed 15 cents per page. (Emphasis added.) \n\nIn its response to this office, the Village noted that\n\nrequest did\n\nnot request copies of records in electronic format. The Village stated that, because some of the\nprovided records were also provided to\ncounted only 400 of the 489 pages of provided records to calculate the fee. The Village therefore\ndid not charge\nfor the first 50 pages, but charged him 15 cents per page for the\nremaining 350 pages for a total of $52.50.2\ncontends that many of the records\nprovided by the Village were not responsive to his request and, therefore, the fee assessed for\nthose records is improper. \n\npursuant to previous FOIA requests, it\n\nIn light of the \"policy embodied in the FOIA requiring disclosure of information\nin government documents unless it falls within the reach of one of the specified exemptions, the\n\n2 In his reply, \n\nnoted that the paper records and records provided on a compact disc\n\nwere not identical and provided arguments regarding the records in both formats. However, the Village only\nassessed a fee for the paper records, so this office's review is limited to whether those records were responsive to\n\nagency should err on the side of liberally construing what material falls within the scope of the\nrequest.\" Dunaway v. Webster, 519 F. Supp. 1059, 1083 (N.D. Cal. 1981); see also, e.g., People\nfor the Ethical Treatment of Animals v. National\nCir. 2014) (\" Agencies have 'a duty to construe a FOIA request liberally.'\" (quoting Nation\nMagazine v. U.S. Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995))). Ambiguities should be\nresolved in favor of disclosure. LaCedra v. Executive Office for U.S. Attorneys, 317 F.3d 345, \n348 (D.C. Cir. 2003) (rejecting public body's narrow construction of language used in request). \n\nInstitutes of Health, 745 F.3d 535, 541 (D.C. \n\nrequest is the property of a longstanding\n\nIn its response, the Village argued that all of the provided records were responsive\nrequest given the time period covered and the broad scope of subject matter. \n\nto\nIt stated that the address specified in\nbusiness in the Village that has been involved in various Village processes as the business\nexpanded. The Village noted that, while the specified property is mentioned in only limited\nportions of some responsive documents, each of those documents are maintained by the Village\nas a single record. These records include agenda packets for meetings of the Village Board of\nTrustees in which the specified property was addressed along with numerous other topics, as\nwell as a road construction project application under the Illinois Transportation Enhancement\nProgram that includes a notice sent to the property in question and involves work on the frontage\nof this property. The Village asserted that its \" FOIA Officer attempted to be circumspect and\nsearched for only those Village records that referred to the specific address in the request, 4329\nButterfield Road, not Hillside Lumber more generally.\" 3\n\nIn his reply, \n\nargued in detail as to why he believed specific\n\nrecords, including the agenda packets and road construction application, were not responsive to\nhis request. He argued that they have nothing to do with his FOIA request, \" which was specific\nto the PROPERTY at 4329 Butterfield Rd. in Hillside.\" 4\nof these records, such as FOIA requests that\nto do with the Hillside government's records for the 4329 Butterfield Rd. property.\" 5\n\npreviously submitted \"have nothing\n\nfurther argued that some\n\nFOIA defines \" public records\" as all records \" pertaining to the transaction of\n\npublic business, regardless of physical form or characteristics, having been prepared by or for, or\nhaving been or being used by, received by, in the possession of, or under the control of any\n\n3 Letter from Patrick E. Deady, Village Attorney, Village of Hillside, to Benjamin J. Silver, \n\nAssistant Attorney General, Public Access Bureau, Office of the Attorney General, State of Illinois (May 17, 2023), \nat 4. \n\nBureau] (June 1, 2023). \n\npublic body.\" (Emphasis added.) 5 ILCS 140/ 2(c) (West 2022). This definition includes\ndocuments submitted to as well as created by the Village as part of a governmental process. \n\nWhile many of the records that the Village provided to\n\ndo not\n\npertain exclusively to the specified property, the records are nonetheless responsive to the\nwording of the request when it is liberally construed as FOIA requires. \nthat the Village should have provided \" specific information from the Hillside government\nsolely to the PROPERTY at 4329 Butterfield Rd. in Hillside for the time period requested.\" 6\nHowever, the wording of the request more broadly sought \" Hillside government written\ndocuments and written communications including but not limited to emails, building permits, \nbuilding inspections, business licenses, zoning documents and all other subjects for the period\nof January 1, 2005 to present day for the property at 4329 Butterfield Rd.\" (Emphasis added.) \nMost of the records do refer to 4329 Butterfield Road and are records maintained by the Village\ngovernment. Given the Village's obligation to liberally construe the FOIA request, this office is\nunable to conclude those documents are not responsive to the request even though many of them\ndo not exclusively concern 4329 Butterfield Road and contain a multitude of additional\nmay not find useful. \ninformation that\n\nargued\n\nrelated\n\nHowever, a portion of the records consist of documents that do not relate to the\n\nproperty at 4329 Butterfield Road. Though the Village argues that it stores agenda packets as a\nsingle document, the agenda packets consist of numerous individual records; only a small portion\nof those records relate to the property at 4329 Butterfield Road. Those discrete records are\nreadily segregable from unrelated records and do not constitute a single record for purposes of\nFOIA simply because the Village aggregated all of the individual records in agenda packets. \nAdditionally, approximately five pages of the records described by the Village as \" Permits and\nZoning permit copies\" appear to relate to properties owned by the owners of 4329 Butterfield\nRoad but not to that property itself. These records also are not responsive to\nrequest for \" Hillside government written documents and written communications * * * \nproperty at 4329 Butterfield Rd. Hillside, IL 60162.\" Therefore, the Public Access Bureau\nconcludes that the Village assessed an improper fee in response to\nMarch 31, \n2023, FOIA request by including the unresponsive portions of the agenda packets and permit\ncopies in calculating its fee for responsive records. Accordingly, this office requests that the\nVillage reassess the fee without including those pages and refund the difference to\n\nfor the\n\nmay wish to specify in future FOIA requests the format in which he wishes to receive records. If\na requester requests a record in electronic format and the public body maintains the record\nelectronically, \" the public body shall furnish it in the electronic format specified by the requester, \nif feasible. If it is not feasible to furnish the public records in the specified electronic format, \nthen the public body shall furnish it in the format in which it is maintained by the public body, or\nin paper format at the option of the requester.\" 5 ILCS 140/6(a) (West 2022). However, \"[ t]he\nplain language of section 6(a) [ only] requires a public body to provide records in electronic\nformat if the public body maintains those records in electronic format. * * * [ S]ection 6(a) does\nnot require a public body to furnish in electronic format records maintained solely in paper\nformat, even if the public body has the resources to reproduce those records in PDF.\" (Emphasis\nin original.). Ill. Att'y Gen. PAC Req. Rev. Ltr. 28697, issued April 18, 2014, at 2. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at benjamin. silver@ilag. gov or (773) 590- 7878. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n76410 f 6b fee proper improper mun"}
{"id":1005,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-12","case_number":null,"request_numbers":["76415"],"title":"IDFPR properly denied disciplinary case records under section 7(1)(a)","filename":"76415, issued July 12, 2023.pdf","rel_path":null,"word_count":1490,"summary":"The requester sought records related to two specific IDFPR disciplinary cases, which the Department denied citing statutory confidentiality provisions. The PAC determined that the Department properly withheld the records under section 7(1)(a) of FOIA.","plain_summary":"A requester asked the Illinois Department of Financial and Professional Regulation (IDFPR) for records regarding two specific disciplinary cases. The IDFPR refused to provide the records, arguing that state law requires them to keep those specific investigation files confidential. The Attorney General's office agreed with the agency, finding that the records were legally exempt from disclosure.","holding":"The Illinois Department of Financial and Professional Regulation did not violate FOIA by denying the request for records protected from disclosure by other state statutes.","legal_question":"Whether the Department properly denied a FOIA request for disciplinary case records pursuant to section 7(1)(a) of FOIA and specific confidentiality provisions in the Department of Professional Regulation Law.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)"],"public_body":"Illinois Department of Financial and Professional Regulation","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(a)","subject_description":"The request concerned records pertaining to specific disciplinary case files maintained by the IDFPR.","ocr_status":"ok","ocr_quality":96.7,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_a/76415%2C%20issued%20July%2012%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["IDFPR","disciplinary records","confidentiality","FOIA exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 12, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Anderson\nFOIA Officer\nIllinois Department of Financial and Professional Regulation\n555 West Monroe Street, Suite 500\nChicago,  Illinois 60661\nFPR.FOIA@illinois.gov\n\nRE:  FOIA Request for Review – 2023 PAC 76415\n\nDear\n\nand Ms. Anderson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons that follow,  the\nPublic Access Bureau concludes that the response by the Illinois Department of Financial and\nProfessional Regulation ( Department)  to\nviolate the requirements of FOIA.  \n\nApril 9, 2023,  FOIA request did not\n\nOn that date, \n\nsubmitted a FOIA request to the Department seeking\n\ncopies of all records pertaining to Case No. 2018-  09135 and 2018- 12570.   On April 11, 2023, \nthe Department denied\nrequest pursuant to section 7(1)(a) of FOIA.1 In connection\nwith section 7(1)( a)  of FOIA,  the Department cited section 1326. 220( b) of the Illinois\nAdministrative Code (2 Ill. Admin. Code 1326.220(b) (West 2022)) and section 2105-117 of the\nDepartment of Professional Regulation Law ( 20 ILCS 2105/ 2105- 117 ( West 2022)).   On April\n28, 2023, \n\nsubmitted the above-referenced Request for Review disputing the\n\n2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022). \n\n15 ILCS 140/7(1)(a) ( West 2021 Supp.), as amended by Public Acts 102 -694, effective January 7, \n\n500 South Second Street, Springfield, Illinois 62701 • ( 217) 782-1090 • TTY: (877) 844-5461 • Fax: (217) 782-7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 2\n\nDepartment's response.  In particular, \nwhatever record IDFPR has of the discipline that was imposed[.]\" 2\n\nargued she \" should at minimum be able to get\n\nOn May 24, 2023,  this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide unredacted copies of the withheld records for our\nconfidential review,  and a detailed explanation of the factual and legal bases for the applicability\nof the asserted exemptions.  On June 5, 2023, the Department provided this office with the\nrequested materials,  submitted confidentially. 3 On June 6, 2023,  the Department also provided\nthis office with an addendum letter and a copy of the closing letter it sent to\nFebruary 11, 2021.   In this closing letter,  the Department\ninformed\ninvestigation and did not impose any public disciplinary actions.4\n\nthat it closed its\n\non\n\nOn June 14, 2023, this office informed\n\nthat the Department had chosen\n\nto keep its response confidential,  but she could still submit a reply.   On June 22,  2023, \nsubmitted her reply along with supporting documentation. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2022);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006).  A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\"  that the records are exempt\nfrom disclosure.  5 ILCS 140/1.2 (West 2022).  The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 (1997).  \n\nSection 7(1)(a) of FOIA\n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\"  Section 2105-117 of the Department of Professional Regulation Law contains the\nfollowing confidentiality provision: \n\nGeneral (April 28, 2023). \n\n2E- mail from\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n35 ILCS 140/9.5(d) (West 2022) (\" The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\nrequest pertains redacted from the copy.\"). \n\nFinancial and Professional Regulation, to\n\nFebruary 11, 2021).  \n\n4Letter from Enforcement Unit, Division of Professional Regulation, Illinois Department of\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 3\n\nAll information collected by the Department in the course\n\nof an examination or investigation of a licensee,  registrant,  or\napplicant, including, but not limited to, any complaint against a\nlicensee or registrant filed with the Department and information\ncollected to investigate any such complaint, shall be maintained\nfor the confidential use of the Department and shall not be\ndisclosed. The Department may not disclose the information to\nanyone other than law enforcement officials,  other regulatory\nagencies that have an appropriate regulatory interest as determined\nby the Director,  or a party presenting a lawful subpoena to the\nDepartment * * *  A formal complaint filed against a licensee or\nregistrant by the Department or any order issued by the\nDepartment against a licensee, registrant, or applicant shall be a\npublic record,  except as otherwise prohibited by law.  ( Emphasis\nadded). \n\nSection 1326.220(b) of the Illinois Administrative Code provides:  \n\nIn response to a request submitted pursuant to FOIA, the\n\nDepartment will not disclose certain records as provided in this\nSection.  Records covered under this Section include, but are not\nlimited to: \n\nb)  Division of Professional Regulation and Division of\nReal Estate: \n\n1)  Complaints received by the Department against\nlicensees or unlicensed persons or entities, \nexcept as provided by statute. \n\n3)   Investigative files maintained by the Division.  \n\nEmphasis added). \n\nIn its confidential\n\nresponse to this office,  the Department asserted that it properly\nwithheld investigation materials and other records responsive to\nrequest pursuant to\nthese confidentiality provisions.   In support of its assertions,  the Department provided additional\ndetails about the nature of the two specified complaints (2018-09135 and 2018-12570) and\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 4\n\nexplained that it merged these complaints into one investigation.  The Department also\nconfirmed that this investigation was closed with no final disciplinary issued.    \n\nIn her reply, \n\nstated that in \" February 2021 the case was completed and\n\nIDFPR issued a disciplinary action report to Cermak Health Services Pharmacy.\" 5 She reiterated\nthat she should have received,  at a minimum,  a copy of the disciplinary action report and a brief\ndescription of the final action taken in either case.  In support of her assertions, \nprovided examples of the Department' s brief explanations of disciplinary actions taken in other\nmatters, which were posted on the Department's website.6\n\nHaving reviewed the information submitted by the parties, it appears no\n\nRequest for Review.  Although\n\ndisciplinary orders were issued by the Department against Cermak Health Services Pharmacy or\nbelieved that a\nthe individual identified in\ndisciplinary action report was issued to the pharmacy,  apparently based on an internal e- mail\nimplementing a policy change, the Department's monthly disciplinary report for February 2021\ndoes not list any disciplinary or enforcement actions against the specified pharmacy or\nindividual.7 The Department provided additional details in its confidential response to confirm\nthat no formal discipline was imposed in connection with the case files at issue.   The Public\nAccess Bureau has previously reviewed the above-described confidentiality provisions of the\nDepartment of Professional Regulation Law and Illinois Administrative Code and concluded that\nthe Department is prohibited from disclosing any materials maintained in its investigative case\nfiles,  except for formal complaints and disciplinary orders issued by the Department against a\nlicensee.  Ill. Att'y Gen. PAC Req. Rev. Ltr. 74715, issued January 18, 2023; Ill. Att'y Gen. PAC\nReq.  Rev.  Ltr. 58592,  issued June 26, 2019.   The existence of an internal policy change related to\na complaint or complaints does not provide evidence that the Department issued a formal\ncomplaint or disciplinary order.   Because there is no indication that formal complaints or orders\nwere entered in connection with the specified case files, the Department is prohibited from\ndisclosing any information related to its investigation of the specified pharmacy and individual\nor the results of that investigation.  Accordingly, the Department did not improperly deny the\nrequest under section 7(1)( a)  of FOIA. \n\nPublic Access Bureau (June 22, 2023), at 1. \n\n5Letter from\n\nto [Christina]  M. Lucente-McCullough, Assistant Attorney General, \n\n6Letter from\n\nto [Christina]  M. Lucente-McCullough, Assistant Attorney General, \n\nPublic Access Bureau (June 22, 2023), at 2 -4.  See IDFPR Consolidated Reports, available at\nhttps:// idfpr.illinois.gov/news/disciplines/discreports.html. \n\nhttps:// idfpr.illinois.gov/content/dam/soi/en/web/idfpr/forms/discpln/2021-02enf.pdf. \n\n7Illinois Department of Financial and Professional Regulation News, February 2021 , available at\n\n\fMs. Kathleen Anderson\nJuly 12, 2023\nPage 5\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   This letter shall serve to close this matter.   If you\nhave any questions, please contact me at c.lucentemccullough@ilag.gov or the Chicago address\nlisted on the first page of this letter.   \n\nVery truly yours, \n\nCHRISTINA LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n76415 f 71a proper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Disciplinary case files of a state regulatory agency","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76415/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 12, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Anderson\nFOIA Officer\nIllinois Department of Financial and Professional Regulation\n555 West Monroe Street, Suite 500\nChicago, Illinois 60661\nFPR.FOIA@illinois.gov\n\nRE: FOIA Request for Review – 2023 PAC 76415\n\nDear\n\nand Ms. Anderson: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Illinois Department of Financial and\nProfessional Regulation (Department) to\nviolate the requirements of FOIA. \n\nApril 9, 2023, FOIA request did not\n\nOn that date, \n\nsubmitted a FOIA request to the Department seeking\n\ncopies of all records pertaining to Case No. 2018- 09135 and 2018- 12570. On April 11, 2023, \nthe Department denied\nrequest pursuant to section 7(1)(a) of FOIA.1 In connection\nwith section 7(1)(a) of FOIA, the Department cited section 1326. 220(b) of the Illinois\nAdministrative Code (2 Ill. Admin. Code 1326.220(b) (West 2022)) and section 2105-117 of the\nDepartment of Professional Regulation Law (20 ILCS 2105/ 2105- 117 (West 2022)). On April\n28, 2023, \n\nsubmitted the above-referenced Request for Review disputing the\n\n2022, revised February 3, 2022; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022). \n\n15 ILCS 140/7(1)(a) (West 2021 Supp.), as amended by Public Acts 102 -694, effective January 7, \n\nDepartment's response. In particular, \nwhatever record IDFPR has of the discipline that was imposed[.]\" 2\n\nargued she \" should at minimum be able to get\n\nOn May 24, 2023, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide unredacted copies of the withheld records for our\nconfidential review, and a detailed explanation of the factual and legal bases for the applicability\nof the asserted exemptions. On June 5, 2023, the Department provided this office with the\nrequested materials, submitted confidentially. 3 On June 6, 2023, the Department also provided\nthis office with an addendum letter and a copy of the closing letter it sent to\nFebruary 11, 2021. In this closing letter, the Department\ninformed\ninvestigation and did not impose any public disciplinary actions.4\n\nthat it closed its\n\non\n\nOn June 14, 2023, this office informed\n\nthat the Department had chosen\n\nto keep its response confidential, but she could still submit a reply. On June 22, 2023, \nsubmitted her reply along with supporting documentation. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds\nrecords \" has the burden of proving by clear and convincing evidence\" that the records are exempt\nfrom disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(a) of FOIA\n\nSection 7(1)(a) of FOIA exempts from disclosure \"[ i]nformation specifically\n\nprohibited from disclosure by federal or State law or rules and regulations implementing federal\nor State law.\" Section 2105-117 of the Department of Professional Regulation Law contains the\nfollowing confidentiality provision: \n\nGeneral (April 28, 2023). \n\n2E- mail from\n\nto Leah Bartelt, Public Access Counselor, Office of the Attorney\n\n35 ILCS 140/9.5(d) (West 2022) (\" The Public Access Counselor shall forward a copy of the\nanswer to the person submitting the request for review, with any alleged confidential information to which the\n\nAll information collected by the Department in the course\n\nof an examination or investigation of a licensee, registrant, or\napplicant, including, but not limited to, any complaint against a\nlicensee or registrant filed with the Department and information\ncollected to investigate any such complaint, shall be maintained\nfor the confidential use of the Department and shall not be\ndisclosed. The Department may not disclose the information to\nanyone other than law enforcement officials, other regulatory\nagencies that have an appropriate regulatory interest as determined\nby the Director, or a party presenting a lawful subpoena to the\nDepartment * * * A formal complaint filed against a licensee or\nregistrant by the Department or any order issued by the\nDepartment against a licensee, registrant, or applicant shall be a\npublic record, except as otherwise prohibited by law. (Emphasis\nadded). \n\nSection 1326.220(b) of the Illinois Administrative Code provides: \n\nIn response to a request submitted pursuant to FOIA, the\n\nDepartment will not disclose certain records as provided in this\nSection. Records covered under this Section include, but are not\nlimited to: \n\nb) Division of Professional Regulation and Division of\nReal Estate: \n\n1) Complaints received by the Department against\nlicensees or unlicensed persons or entities, \nexcept as provided by statute. \n\n3) Investigative files maintained by the Division. \n\nEmphasis added). \n\nIn its confidential\n\nresponse to this office, the Department asserted that it properly\nwithheld investigation materials and other records responsive to\nrequest pursuant to\nthese confidentiality provisions. In support of its assertions, the Department provided additional\n\nexplained that it merged these complaints into one investigation. The Department also\nconfirmed that this investigation was closed with no final disciplinary issued. \n\nIn her reply, \n\nstated that in \" February 2021 the case was completed and\n\nIDFPR issued a disciplinary action report to Cermak Health Services Pharmacy.\" 5 She reiterated\nthat she should have received, at a minimum, a copy of the disciplinary action report and a brief\ndescription of the final action taken in either case. In support of her assertions, \nprovided examples of the Department's brief explanations of disciplinary actions taken in other\nmatters, which were posted on the Department's website.6\n\nHaving reviewed the information submitted by the parties, it appears no\n\nRequest for Review. Although\n\ndisciplinary orders were issued by the Department against Cermak Health Services Pharmacy or\nbelieved that a\nthe individual identified in\ndisciplinary action report was issued to the pharmacy, apparently based on an internal e- mail\nimplementing a policy change, the Department's monthly disciplinary report for February 2021\ndoes not list any disciplinary or enforcement actions against the specified pharmacy or\nindividual.7 The Department provided additional details in its confidential response to confirm\nthat no formal discipline was imposed in connection with the case files at issue. The Public\nAccess Bureau has previously reviewed the above-described confidentiality provisions of the\nDepartment of Professional Regulation Law and Illinois Administrative Code and concluded that\nthe Department is prohibited from disclosing any materials maintained in its investigative case\nfiles, except for formal complaints and disciplinary orders issued by the Department against a\nlicensee. Ill. Att'y Gen. PAC Req. Rev. Ltr. 74715, issued January 18, 2023; Ill. Att'y Gen. PAC\nReq. Rev. Ltr. 58592, issued June 26, 2019. The existence of an internal policy change related to\na complaint or complaints does not provide evidence that the Department issued a formal\ncomplaint or disciplinary order. Because there is no indication that formal complaints or orders\nwere entered in connection with the specified case files, the Department is prohibited from\ndisclosing any information related to its investigation of the specified pharmacy and individual\nor the results of that investigation. Accordingly, the Department did not improperly deny the\nrequest under section 7(1)(a) of FOIA. \n\nPublic Access Bureau (June 22, 2023), at 1. \n\n5 Letter from\n\nto [Christina] M. Lucente-McCullough, Assistant Attorney General, \n\n6 Letter from\n\nto [Christina] M. Lucente-McCullough, Assistant Attorney General, \n\nPublic Access Bureau (June 22, 2023), at 2 -4. See IDFPR Consolidated Reports, available at\nhttps:// idfpr.illinois.gov/news/disciplines/discreports.html. \n\nhttps:// idfpr.illinois.gov/content/dam/soi/en/web/idfpr/forms/discpln/2021-02enf.pdf. \n\n7 Illinois Department of Financial and Professional Regulation News, February 2021, available at\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\nhave any questions, please contact me at c.lucentemccullough@ilag.gov or the Chicago address\nlisted on the first page of this letter. \n\nVery truly yours, \n\nCHRISTINA LUCENTE- MCCULLOUGH\nAssistant Attorney General\nPublic Access Bureau\n\n76415 f 71a proper sa"}
{"id":1006,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-11-21","case_number":null,"request_numbers":["76460"],"title":"City of Urbana failed to prove 7(1)(c) exemption for police chief candidate's resume","filename":"76460, issued November 21, 2023.pdf","rel_path":null,"word_count":2444,"summary":"The requester challenged the City of Urbana's denial of records regarding a police chief finalist, and the PAC determined the City failed to justify withholding certain application materials and email chains under FOIA exemptions.","plain_summary":"A requester asked for records related to a police chief candidate, including a letter of interest and resume, but the City of Urbana withheld them citing a privacy exemption. The Attorney General's office reviewed the case and determined that the City did not provide clear and convincing evidence that the privacy rights of the candidate outweighed the public interest in disclosure. The determination concludes that the exemption was not proven, but does not explicitly order the release of the records.","holding":"The City of Urbana failed to demonstrate by clear and convincing evidence that the section 7(1)(c) exemption applies to the applicant's letter of interest and resume; no further order or remedy is stated in the determination.","legal_question":"Whether the City of Urbana properly invoked FOIA exemptions 7(1)(b), 7(1)(c), and 7(1)(f) to withhold records related to a police chief candidate's application and selection process.","disposition":"partial_violation","primary_statute":["5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"City of Urbana","requesting_party":"CheckCU.org","pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"personnel records","subject_description":"The records concern the application materials and selection process for a police chief finalist.","ocr_status":"llm_reocr","ocr_quality":94.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_c/Compelling-public-interest-in-disclosure/76460%2C%20issued%20November%2021%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police chief","personnel records","privacy exemption","FOIA request"],"truncated_suspect":0,"site_category":"Personnel & Student Records","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAMERAOUL\n\nATIORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Ross McNeil\n\nFOIA Officer\n\nCity ofUrbana\n\n400 South Vine Street\n\nUrbana,  Illinoi s 61801\n\nremcneil @urbanaillinois. us\n\nRE:  FOIA Request for Review - 2023 PAC 76460\n\nDear-\n\nand Mr.  McNeil: \n\nThis determination is issued pursuant to section 9.S(t) ofthe Freedom of\n\nInfom1ation Act (FOIA) (5 ILCS 140/9.S(t) (West 2022)). \n\nOn April 4, 2023 , \n\nsubmitted a FOIA request to the City\n\nofUrbana ( City) seeking copies of \"[a] ll records related to the recent announcement of Larry\n\nBoone as Police Chief Finalist[,]\" \n\nincluding: ( 1)  any job descriptions\n\nand requirements, ( 2) \n\nrecords submitted by Mr. Boone as part of his application,  and (3)  records furnished by any other\nparty related to Mr. Boone's candidacy. 1 On April 20, 2023, the City provided a job description\n\nfo r the Chief of Police and a document prepared by Polihire, a firm hired by the City to assist in\n\nidentifying candidates for the position.  The City withheld the remaining responsive records\npursuant to sections 7(l)(b),  7(l)(c), and 7(l)(t) ofFOIA. 2 On May 2, 2023, this office received\n\nRequest for Review challenging the partial denial. -\n\nasserted that the\n\nE-mail from CheckCU. org to Ross McN eil ( April 4 , 2023). \n\n2\n\n5 ILCS 140/ 7(1 )( b), ( I )(c), ( l)(f) (West 2021 Supp.),  as amended by Public Acts I 02 -752 , \n\neffective January I , 2023;  I02- 753,  effective January 1,  2023;  102 -776,  effective January 1, 2023;  I 02- 79 l , \n\neffective May 13 , 2022;  102- 1055,  effective June 10 , 2022. \n\n500 South Second Street,  Springfield,  lllinois 62701 • ( 21 7) 782-1 090 •  TTY : (877) 844- 5461 •  fax: (217)  782- 7046\n\nI00 West Randolph Street,  Chicago,  Illinoi s 6060 I • (312)  8 14- 3000 •  TTY : (800)  964- 30 13 •  Fax: ( 312)  814- 3806\n\n60 I South Uni vers ity Ave .• Carbondale.  Illinois 6290 I • (618)  529- 6400 • TTY: (877)  675 -9339 •  Fax ( 618)  529- 6416\n\n\fMr.  Ross McNeil\n\nNovember 21 ,  2 0 23\n\nPage2\n\nCity di d not provide any records related to Mr. Boone' s candidacy,  particularly any records that\n\nwere gathered by Polihire during the search process.  Those records would be r es ponsive to parts\n\ntwo and three of his request. \n\nOn May 11,  2023,  this office forwarded a copy o f the Request for Review to the\n\nCity and asked it to provide copies of the withheld records,  together with a detailed explanation\n\nof the factual and legal bases for the applicability of the asserted exemptions.  On June 5 , 2023, \n\nth is office received the requested materials.  On June 7,  2023,  this office forwarded a copy of the\n\nCity' s response to -\n\nhe did not submit a rep ly. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.\"  5 ILCS 140/ 1.2 ( West 2022);  see also Southern Illinoisan v. \n\nfllinois Departm en t of Public Health ,  218 Ill. 2d 390,  4 15 ( 2006).  A public body th at w ithholds\n\nrecords \" has the burden o f proving by clear and convincing evidence\" \n\nthat the records are exemp t\n\nfrom di sclosure.  5 ILCS 140/ 1.2 ( West 2022).  The exemptions from disclosure are to be\n\nnarrow ly construed.  Lieber v.  Board a/Trustees ofSouthern Illinois University,  176 Ill. 2d 401, \n\n407 ( 1997). \n\nSection 7( 1)( c)  of FOIA exempts from disclosure \"[ p] ersonal\n\ninformation\n\ncontained within public records, \n\nthe disclosure of which would constitute a clearly unwarranted\n\ninvas ion of personal privacy.\"  Section 7( 1)( c) d efi n es \" unwarranted invasion o f p ersonal\n\nprivacy\"  as the \" disclosu re of information that is h ighly personal or obj ectionable to a reasonable\n\nperson and in which the s ubject' s r ight to privacy outweighs any legiti mate public interest in\n\nobtaini ng the information. \n\nThe disclosure of informati on that bears on the public duties of\n\npublic employees and officials s ha ll not be conside red an invas ion of personal privacy.\" \n\nPolice Chief Finalis t' s Application M a teria ls\n\nIn bis Request\n\nfor Rev iew, -\n\nargued that the City im p roperly denied h is\n\nrequest\n\nfo r records p ertaining to M r.  Boone' s candidacy because Mr.  Boone was publicly\n\nidentified as the finalist\n\nfor the poli ce chief position a nd already a public figure.  He further\n\nargued that there is a legitimate public interes t in dis closure o f information concerning the City' s\n\ntop pick for a high- level job.  He asserted,  in relevant part: \" Larry Boone bas been a publ ic\n\nofficial\n\nfo r most,  if not a ll , of his career.  He h as applied to a position of substan tial public\n\ninterest,  his identity has been announced,  and he has been declared the sole finalist\n\nfor the\n\nposition of Police Chief. \"\n\n3\n\n10 Public Access Counselor Bartelt ( May 2 , 2023 ). \n\n\fMr.  Ross McNeil\n\nNovember 21,  2 0 23\n\nPage3\n\nIn its response to th is office,  the City acknowledged it had publicly identified Mr. \n\nBoone as a police chief finalist after its April 3,  2023,  Committee of the Whole meeting,  but\n\nmaintained it properly withhe ld Mr.  Boone' s application material s because it had not yet made a\n\nfi nal hiring decision.  The City asserted that its announcement \"\n\nindicated that additional\n\ninterviews with the appli cant were ongoing[,]\"\n\n4\n\nand an official\n\njob offer had not been extended to\n\nMr.  Boone.  The City contended it could still elect not to offer him the job or Mr.  Boone could\n\nwithdraw hi s name from consideration or decl ine the job if an offer was later made.  The City\n\nnoted that in previous determinations, \n\nthe Public Access Bureau h as conclud ed that pending or\n\nunsuccessfu l applications fo r public e mployment are exempt\n\nfrom disclosure pursuant\n\nto section\n\n7 ( 1 )( c ).  Those determinations,  however,  are dis t inguishable from this matter. \n\nT he Public Access Bureau' s previous determinations\n\nconcerned pending or\n\nunsuccessfu l applicants who had not already been publicly identified as seeking public\n\nemployment.  The rationale for those determinations is that disclosure of information that\n\nidentifies individual s who un successfull y sou ght or currently are seeking a new job may\n\nnegative ly impact\n\ntheir current employment,  w hich could chill them from applying in the first\n\nplace and hamper a public body from attracting qualified app li cants for open pos iti ons.  Ill. Att' y\n\nGen.  PAC Req.  Rev.  Ltr.  5258 1,  issue d February 21,  2021.  This office also reas one d that\n\ndi sclosure of in formation identifying individual s w ho unsuccessfully sought a position could\n\ncause embarrassment\n\nand dis su ade applicants from apply ing in the future. \n\nIll. Att' y Gen.  PAC\n\nReq.  Rev.  Ltr.  59938,  issued October 21,  2019.  Those privacy concerns are not present\n\nin this\n\nmatter because the City publicly identified Mr.  Boone as a finalist\n\nfor police chief before-\n\ns ubmitte d his request. \n\nA public body' s contention that the re lease of information would constitute an\n\nunwarranted invasion of personal privacy is evaluated on a case- by- case basis .  Chicago\n\nJourneymen Plumbers'  L ocal Un io n 130,  UA.  v.  D epartment of Public Health,  327 Ill. App.  3d\n\n192,  196 ( I st Dist.  200 l ). The phrase \" clearly unwaITanted invasion of personal privacy\" \n\nevinces a strict standard to claim the exemption,  and the burden is on the government agency\n\nhaving charge of the r ecord to prove that standard has been met.  Schessler v.  Department of\n\nConservation,  256 Ill. App.  3d 198,  202 ( 4th Dist.  1994). \n\nIllinois courts consider the fo ll owing\n\nfac tors in determining whether di sclosure of information would co ns titute an unwarranted\n\ninvas ion of personal privacy: \"( 1)  the plainti ffs interest\n\nin di sclosure, ( 2)  the public interest\n\nin\n\ndisclosure, ( 3)  the degree of invasion of personal privacy,  and ( 4)  the availability of al ternative\n\nmeans of obtainin g the requested in formation.\"  National Ass' n of Criminal D efense Lawyers v. \n\nChicago Police D epartment,  399 Ill . App.  3d l, 13 (  l st Dist.  2010). \n\nPu bli c Access Bureau,  Office of the Attorney General ( June 5,  2023),  a t 2. \n\n4Letter from Ross McNeil ,  FOIA Officer,  City of Urbana,  to Teresa Li m,  Supervis in g Attorney, \n\n\fMr. Ross McNeil\n\nNovember 21 , 2023\n\nPage4\n\nApplying the first and second factors of the balancing test to Mr.  Boone' s\n\napplication materials, \n\ninterest in disclosure is as a member of the public seeking to\n\nlearn more about th e City's top choice for police chief. \n\ninterest in disclosure is\n\naligned with the public' s interest\n\nin obtaining information concern in g Mr.  Boone' s qualificatio ns\n\nfor the position.  There is a compelling public interest\n\nin information that sheds light on the ne xt\n\npotential police chief, who will have significant leadership authority and responsibilities as the\n\nhead of the City' s law enforcement branch. \n\nApplying the third factor,  the City emphasized that Mr. Boone had not yet been\n\noffer the job and thus \" at this time the applicant is still afforded the privacy of a pending\n\napp licant. \"\n\n5\n\nMr.  Boone' s app li cation materials included a letter of interest and resume.  Th e City\n\nargued it \"properly balanced the pu blic's right to know wi th the privacy ofa non-employee by\n\nproviding significant information about both the hiring process and the fina l candidate while\n\npreserving the applicant' s privacy to the extent possib le. \"\n\n6\n\nLastl y, applyin g the fourth fac tor, the City argued that there are alternative means\n\nto obtain relevant\n\ninformation about Mr.  Boone' s work hi story. \n\nIn particular,  the C ity noted that\n\ncould s ubmit a FOIA request\n\nto Mr.  Boone' s current or previous public employers\n\nand seek records related to his work experi ences. \n\nTaking all these factors into account along with the sp ecific contents of the\n\nrecords, the City did not demonstrate that disclosure ofMr. Boone's application materials would\n\nconstitute a clearly unwarranted invasion of personal privacy.  Although the C ity had not yet\n\nextended a job offer,  Mr.  Boone was not a mere pending applicant.  The City had taken a step\n\nfurther by selecting and publicly identifying him as its top contender\n\nfor Chief of Police.  The\n\nCity publicly announced this selection and subsequently arranged a meeting for memb ers ofthe\n\npubl ic to meet him in p er son.  Th ere is a significant publi c interest\n\nin information concernin g the\n\nCity' s next potential police chief.  That indiv idual would be expected to assume substantial\n\nresponsibilities overseeing the City's public safety and serve as a public figure for the police\n\ndepartment.  Although Mr.  Boone' s app li cation materials contain personal\n\ninformation\n\nconcerni n g his background, \n\nthe information is presented in a favorable manner and does not\n\nappear to contai n embarrass in g or detail ed information about highly personal matters,  such as\n\npersonal relationships or medical condition s .  Instead, the information generally illustrates Mr. \n\nBoone' s experience and qualifications\n\nto handle the public duties of a police chief.  While . \n\nPublic Access Bureau,  Office of the Attorney General ( June 5,  2023),  at 2 . \n\n5Letter from Ross McNeil,  FOIA Officer,  City of Urbana, \n\nto Teresa Lim,  Supervising Attorney, \n\nPublic Access Bureau,  Office of the Attorney General ( June 5,  2023),  at 5 . \n\n6Letter from Ross McNeil,  FO IA Officer,  City of Urbana,  to Teresa Lim , Supervising Attorney, \n\n\fNovember 21 , 2023\n\nPage 5\n\ncould request\n\ninformation from other governmental entities that previously employed\n\nMr. Boone,  there is no indication that there are any alternative means to obtain the application\n\nmaterials he submitted to the City.  Under these circu mstances,  the City did not demonstrate by\n\nclear and convincing evidence that the privacy rights of Mr. Boone outweigh the legitimate\n\npublic interest\n\nin disclosure of his application materials.  According ly,  this office concludes that\n\nthe City did not sustain its burden of showing that Mr. Boone's application materials fall within\n\nthe scope of section 7(1)(c). \n\nRecords Concerning Selection and In tervi ew Process\n\nThe City asserted it did not possess records responsive to part three of. \n\nrequest at the time ofhis submission.  The City explained that neither the City nor\n\nPolihire received any records from references or other third parties on behalf ofMr. Boone.  The\n\nCity further asserted that a number of records related to Mr. Boone's candidacy \" were created\n\nafter the date of the FO[ A request[.]'\n\n0\n\nAdditionally, \n\nthe City stated it withheld \" trans itory email\n\ncommunications between Polihire and the City regarding the hiring process and which also\ninclude attachments regarding the applicants. 11 8 The City contended that those e-mails were not\n\nresponsive to the request and,  even if they were,  fell w ithin the scope of section 7( 1)( c).  The\n\nCity provided thi s office with copies of these records to illustrate its ongoing selection and\n\ninterview process . \n\nThis office's review of the records confirmed that a portion ofthe City's records\n\npertaining to Mr. Boone's candidacy and interview process were prepared after the submission of\n\nreq uest.  Records that do not exist at the time of a request are not responsive to the\n\nrequest.  Walker v.  Bruscato, 20 19 IL App ( 2d)  170775 145 (\"A request\n\nfor records not yet\n\ncreated is invalid.\");  see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 25707,  issued August 30, 2013, \n\nat 2. (\" public body is not obligated to respond to a FOIA request by furnishing records created\n\nafter the submission of a request;  such records are outs ide the scope of the request.\"). \n\nAccordingly,  the City did not improperly withhold those records. \n\nThe \" transitory emai l commun ications,\"  however,  are dated before the sub m ission\n\nofthe request.  Although these e-mails do not focus solely on Mr. Boone and also contain\n\ninformation regarding other candidates,  the e-mails nonetheless pertain to the City's selection of\n\nMr. Boone out of the applicant pool and thus are responsive to the request.  Based on this office's\n\nreview,  two of the e -mails show Polihire transmitting candidate information to the City.  The\n\n7Letter from Ross McNeil,  FOIA Officer,  City of Urbana,  to Teresa Lim,  Supervising Attorney, \n\nPublic Access Bureau,  Office of the Attorney General ( June 5, 2023),  at 4. \n\nPublic Acces s Bureau,  Office of the Attorney General ( June 5,  2023),  at 4 . \n\n8Letter from Ross McNeil,  FOTA Officer,  City of Urbana,  to Teresa Lim,  Supervising Attorney, \n\n\fNovember 21, 2023\n\nPage6\n\ncandidates included Mr. Boone and certain other individuals.  With the exception of one e-mail\n\nattachment containing Mr. Boone's application, the remaining parts of those two e-mails pertain\n\nto the other candidates .  Disclosure of information concerning those unsuccessful candidates, \n\nincluding their applications,  would constitute an unwarranted invasion of personal privacy.  As\n\ndiscussed above,  disclosure of records identifying unsuccessful applicants could cause\n\nembarrassment,  interfere with the applicants'  existing employment,  and hamper public bodies\n\nfrom attractin g qualified applicants for open positions.  With respect to the remaining two e-\n\nmails,  this office' s review determined that they do not disclose details of any of the candidates' \n\napplications or personally- identifying information;  they also do not reveal any deliberations\n\nregarding them.  instead, the e-mails contain general status updates about the selection process . \n\nThe City did not demonstrate that these commun ications are highly personal\n\nin nature or that\n\ntheir disclosure wou ld constitute a clearly unwarranted invasion of personal privacy. \n\nAccordingly, this office concludes that the City did not show by clear and convincing evidence\n\nthat those two transitory e- mails are exempt from disclosure pursuant to section 7(1 )( c ). \n\nThis office requests that the City provide- with a copy ofMr. Boone's\n\napplication materials,  subject to permissible redactions under section 7(l)(b) ofFOIA. 9 This\n\noffice also requests that th e C ity provide copies of the last two e- mail chains that were provided\n\nfor this office's confidential review.  The City may redact parts of the e-mail chains that do not\n\npertain to the police chief se lection process . \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter shall serve to close this matter.  If you\n\nhave any questions,  please contact me at the Chicago address li sted on the first page of this letter. \n\n7 6460 f 7 1c proper improper mun\n\nSupervising Attorney\n\nPublic Access Bureau\n\n95 ILCS 140/ 7 (1 )( b) ( Wes t 2022),  as amended by Public Act I 03- 154,  effective June 30 , 2023 ; \n\nI 03 - 462 , effective August 4,  2023. \n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nKWAMERAOUL\n\nATIORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Ross McNeil\n\nFOIA Officer\n\nCity ofUrbana\n\n400 South Vine Street\n\nUrbana, Illinoi s 61801\n\nremcneil @urbanaillinois. us\n\nRE: FOIA Request for Review - 2023 PAC 76460\n\nDear-\n\nand Mr. McNeil: \n\nThis determination is issued pursuant to section 9.S(t) ofthe Freedom of\n\nInfom1ation Act (FOIA) (5 ILCS 140/9.S(t) (West 2022)). \n\nOn April 4, 2023, \n\nsubmitted a FOIA request to the City\n\nofUrbana (City) seeking copies of \"[a] ll records related to the recent announcement of Larry\n\nBoone as Police Chief Finalist[,]\" \n\nincluding: (1) any job descriptions\n\nand requirements, (2) \n\nrecords submitted by Mr. Boone as part of his application, and (3) records furnished by any other\nparty related to Mr. Boone's candidacy. 1 On April 20, 2023, the City provided a job description\n\nfo r the Chief of Police and a document prepared by Polihire, a firm hired by the City to assist in\n\nidentifying candidates for the position. The City withheld the remaining responsive records\npursuant to sections 7(l)(b), 7(l)(c), and 7(l)(t) ofFOIA. 2 On May 2, 2023, this office received\n\nRequest for Review challenging the partial denial. -\n\nasserted that the\n\nE-mail from CheckCU. org to Ross McN eil (April 4, 2023). \n\n2\n\n5 ILCS 140/ 7(1)(b), (I)(c), (l)(f) (West 2021 Supp.), as amended by Public Acts I 02 -752, \n\neffective January I, 2023; I02- 753, effective January 1, 2023; 102 -776, effective January 1, 2023; I 02- 79 l, \n\neffective May 13, 2022; 102- 1055, effective June 10, 2022. \n\ncould request\n\ninformation from other governmental entities that previously employed\n\nMr. Boone, there is no indication that there are any alternative means to obtain the application\n\nmaterials he submitted to the City. Under these circu mstances, the City did not demonstrate by\n\nclear and convincing evidence that the privacy rights of Mr. Boone outweigh the legitimate\n\npublic interest\n\nin disclosure of his application materials. According ly, this office concludes that\n\nthe City did not sustain its burden of showing that Mr. Boone's application materials fall within\n\nthe scope of section 7(1)(c). \n\nRecords Concerning Selection and In tervi ew Process\n\nThe City asserted it did not possess records responsive to part three of. \n\nrequest at the time ofhis submission. The City explained that neither the City nor\n\nPolihire received any records from references or other third parties on behalf ofMr. Boone. The\n\nCity further asserted that a number of records related to Mr. Boone's candidacy \" were created\n\nafter the date of the FO[ A request[.]'\n\n0\n\nAdditionally, \n\nthe City stated it withheld \" trans itory email\n\ncommunications between Polihire and the City regarding the hiring process and which also\ninclude attachments regarding the applicants. 11 8 The City contended that those e-mails were not\n\nresponsive to the request and, even if they were, fell w ithin the scope of section 7(1)(c). The\n\nCity provided thi s office with copies of these records to illustrate its ongoing selection and\n\ninterview process. \n\nThis office's review of the records confirmed that a portion ofthe City's records\n\npertaining to Mr. Boone's candidacy and interview process were prepared after the submission of\n\nreq uest. Records that do not exist at the time of a request are not responsive to the\n\nrequest. Walker v. Bruscato, 20 19 IL App (2d) 170775 145 (\"A request\n\nfor records not yet\n\ncreated is invalid.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 25707, issued August 30, 2013, \n\nat 2. (\" public body is not obligated to respond to a FOIA request by furnishing records created\n\nafter the submission of a request; such records are outs ide the scope of the request.\"). \n\nAccordingly, the City did not improperly withhold those records. \n\nThe \" transitory emai l commun ications,\" however, are dated before the sub m ission\n\nofthe request. Although these e-mails do not focus solely on Mr. Boone and also contain\n\ninformation regarding other candidates, the e-mails nonetheless pertain to the City's selection of\n\nMr. Boone out of the applicant pool and thus are responsive to the request. Based on this office's\n\nreview, two of the e -mails show Polihire transmitting candidate information to the City. The\n\n7Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, \n\nPublic Access Bureau, Office of the Attorney General (June 5, 2023), at 4. \n\nPublic Acces s Bureau, Office of the Attorney General (June 5, 2023), at 4. \n\n8Letter from Ross McNeil, FOTA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, \n\nNovember 21, 2023\n\nPage6\n\ncandidates included Mr. Boone and certain other individuals. With the exception of one e-mail\n\nattachment containing Mr. Boone's application, the remaining parts of those two e-mails pertain\n\nto the other candidates. Disclosure of information concerning those unsuccessful candidates, \n\nincluding their applications, would constitute an unwarranted invasion of personal privacy. As\n\ndiscussed above, disclosure of records identifying unsuccessful applicants could cause\n\nembarrassment, interfere with the applicants' existing employment, and hamper public bodies\n\nfrom attractin g qualified applicants for open positions. With respect to the remaining two e-\n\nmails, this office's review determined that they do not disclose details of any of the candidates' \n\napplications or personally- identifying information; they also do not reveal any deliberations\n\nregarding them. instead, the e-mails contain general status updates about the selection process. \n\nThe City did not demonstrate that these commun ications are highly personal\n\nin nature or that\n\ntheir disclosure wou ld constitute a clearly unwarranted invasion of personal privacy. \n\nAccordingly, this office concludes that the City did not show by clear and convincing evidence\n\nthat those two transitory e- mails are exempt from disclosure pursuant to section 7(1)(c). \n\nThis office requests that the City provide- with a copy ofMr. Boone's\n\napplication materials, subject to permissible redactions under section 7(l)(b) ofFOIA. 9 This\n\noffice also requests that th e C ity provide copies of the last two e- mail chains that were provided\n\nfor this office's confidential review. The City may redact parts of the e-mail chains that do not\n\npertain to the police chief se lection process. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter shall serve to close this matter. If you\n\nhave any questions, please contact me at the Chicago address li sted on the first page of this letter. \n\n7 6460 f 7 1c proper improper mun\n\nSupervising Attorney\n\nPublic Access Bureau\n\n95 ILCS 140/ 7 (1)(b) (Wes t 2022), as amended by Public Act I 03- 154, effective June 30, 2023; \n\nI 03 - 462, effective August 4, 2023.","plain_summary_pre_resummarize":null,"card_headline":"Application materials for a police chief finalist","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76460/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nNovember 21, 2023\n\nVia electronic mail\n\n[REDACTED]\n\nVia electronic mail\nMr. Ross McNeil\nFOIA Officer\nCity of Urbana\n400 South Vine Street\nUrbana, Illinois 61801\nremcneil@urbanaillinois.us\n\nRE: FOIA Request for Review – 2023 PAC 76460\n\nDear [REDACTED] and Mr. McNeil:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of Information Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)).\n\nOn April 4, 2023, [REDACTED] submitted a FOIA request to the City of Urbana (City) seeking copies of \"[a]ll records related to the recent announcement of Larry Boone as Police Chief Finalist[,]\" including: (1) any job descriptions and requirements, (2) records submitted by Mr. Boone as part of his application, and (3) records furnished by any other party related to Mr. Boone's candidacy.¹ On April 20, 2023, the City provided a job description for the Chief of Police and a document prepared by Polihire, a firm hired by the City to assist in identifying candidates for the position. The City withheld the remaining responsive records pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(f) of FOIA.² On May 2, 2023, this office received [REDACTED] Request for Review challenging the partial denial. [REDACTED] asserted that the\n\n¹E-mail from CheckCU.org to Ross McNeil (April 4, 2023).\n\n²5 ILCS 140/7(1)(b), (1)(c), (1)(f) (West 2021 Supp.), as amended by Public Acts 102-752, effective January 1, 2023; 102-753, effective January 1, 2023; 102-776, effective January 1, 2023; 102-791, effective May 13, 2022; 102-1055, effective June 10, 2022.\n\nCity did not provide any records related to Mr. Boone's candidacy, particularly any records that were gathered by Polihire during the search process. Those records would be responsive to parts two and three of his request.\n\nOn May 11, 2023, this office forwarded a copy of the Request for Review to the City and asked it to provide copies of the withheld records, together with a detailed explanation of the factual and legal bases for the applicability of the asserted exemptions. On June 5, 2023, this office received the requested materials. On June 7, 2023, this office forwarded a copy of the City's response to [REDACTED] he did not submit a reply.\n\nDETERMINATION\n\n\"All records in the custody or possession of a public body are presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body that withholds records \"has the burden of proving by clear and convincing evidence\" that the records are exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The exemptions from disclosure are to be narrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nSection 7(1)(c) of FOIA exempts from disclosure \"[p]ersonal information contained within public records, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.\" Section 7(1)(c) defines \"unwarranted invasion of personal privacy\" as the \"disclosure of information that is highly personal or objectionable to a reasonable person and in which the subject's right to privacy outweighs any legitimate public interest in obtaining the information. The disclosure of information that bears on the public duties of public employees and officials shall not be considered an invasion of personal privacy.\"\n\nPolice Chief Finalist's Application Materials\n\nIn his Request for Review, [REDACTED] argued that the City improperly denied his request for records pertaining to Mr. Boone's candidacy because Mr. Boone was publicly identified as the finalist for the police chief position and already a public figure. He further argued that there is a legitimate public interest in disclosure of information concerning the City's top pick for a high-level job. He asserted, in relevant part: \"Larry Boone has been a public official for most, if not all, of his career. He has applied to a position of substantial public interest, his identity has been announced, and he has been declared the sole finalist for the position of Police Chief.\"3\n\n3E-mail from [REDACTED] to Public Access Counselor Bartelt (May 2, 2023).\n\nIn its response to this office, the City acknowledged it had publicly identified Mr. Boone as a police chief finalist after its April 3, 2023, Committee of the Whole meeting, but maintained it properly withheld Mr. Boone's application materials because it had not yet made a final hiring decision. The City asserted that its announcement \"indicated that additional interviews with the applicant were ongoing[,]\"4 and an official job offer had not been extended to Mr. Boone. The City contended it could still elect not to offer him the job or Mr. Boone could withdraw his name from consideration or decline the job if an offer was later made. The City noted that in previous determinations, the Public Access Bureau has concluded that pending or unsuccessful applications for public employment are exempt from disclosure pursuant to section 7(1)(c). Those determinations, however, are distinguishable from this matter.\n\nThe Public Access Bureau's previous determinations concerned pending or unsuccessful applicants who had not already been publicly identified as seeking public employment. The rationale for those determinations is that disclosure of information that identifies individuals who unsuccessfully sought or currently are seeking a new job may negatively impact their current employment, which could chill them from applying in the first place and hamper a public body from attracting qualified applicants for open positions. Ill. Att'y Gen. PAC Req. Rev. Ltr. 52581, issued February 21, 2021. This office also reasoned that disclosure of information identifying individuals who unsuccessfully sought a position could cause embarrassment and dissuade applicants from applying in the future. Ill. Att'y Gen. PAC Req. Rev. Ltr. 59938, issued October 21, 2019. Those privacy concerns are not present in this matter because the City publicly identified Mr. Boone as a finalist for police chief before [REDACTED] submitted his request.\n\nA public body's contention that the release of information would constitute an unwarranted invasion of personal privacy is evaluated on a case-by-case basis. Chicago Journeymen Plumbers' Local Union 130, U.A. v. Department of Public Health, 327 Ill. App. 3d 192, 196 (1st Dist. 2001). The phrase \"clearly unwarranted invasion of personal privacy\" evinces a strict standard to claim the exemption, and the burden is on the government agency having charge of the record to prove that standard has been met. Schessler v. Department of Conservation, 256 Ill. App. 3d 198, 202 (4th Dist. 1994). Illinois courts consider the following factors in determining whether disclosure of information would constitute an unwarranted invasion of personal privacy: \"(1) the plaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining the requested information.\" National Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, 13 (1st Dist. 2010).\n\n4 Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney General (June 5, 2023), at 2.\n\nApplying the first and second factors of the balancing test to Mr. Boone's application materials, [REDACTED] interest in disclosure is as a member of the public seeking to learn more about the City's top choice for police chief. [REDACTED] interest in disclosure is aligned with the public's interest in obtaining information concerning Mr. Boone's qualifications for the position. There is a compelling public interest in information that sheds light on the next potential police chief, who will have significant leadership authority and responsibilities as the head of the City's law enforcement branch.\n\nApplying the third factor, the City emphasized that Mr. Boone had not yet been offer the job and thus \"at this time the applicant is still afforded the privacy of a pending applicant.\"5 Mr. Boone's application materials included a letter of interest and resume. The City argued it \"properly balanced the public's right to know with the privacy of a non-employee by providing significant information about both the hiring process and the final candidate while preserving the applicant's privacy to the extent possible.\"6\n\nLastly, applying the fourth factor, the City argued that there are alternative means to obtain relevant information about Mr. Boone's work history. In particular, the City noted that [REDACTED] could submit a FOIA request to Mr. Boone's current or previous public employers and seek records related to his work experiences.\n\nTaking all these factors into account along with the specific contents of the records, the City did not demonstrate that disclosure of Mr. Boone's application materials would constitute a clearly unwarranted invasion of personal privacy. Although the City had not yet extended a job offer, Mr. Boone was not a mere pending applicant. The City had taken a step further by selecting and publicly identifying him as its top contender for Chief of Police. The City publicly announced this selection and subsequently arranged a meeting for members of the public to meet him in person. There is a significant public interest in information concerning the City's next potential police chief. That individual would be expected to assume substantial responsibilities overseeing the City's public safety and serve as a public figure for the police department. Although Mr. Boone's application materials contain personal information concerning his background, the information is presented in a favorable manner and does not appear to contain embarrassing or detailed information about highly personal matters, such as personal relationships or medical conditions. Instead, the information generally illustrates Mr. Boone's experience and qualifications to handle the public duties of a police chief. While\n\n5 Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney General (June 5, 2023), at 2.\n\n6 Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney, Public Access Bureau, Office of the Attorney General (June 5, 2023), at 5.\n\n[REDACTED] could request information from other governmental entities that previously employed\nMr. Boone, there is no indication that there are any alternative means to obtain the application\nmaterials he submitted to the City. Under these circumstances, the City did not demonstrate by\nclear and convincing evidence that the privacy rights of Mr. Boone outweigh the legitimate\npublic interest in disclosure of his application materials. Accordingly, this office concludes that\nthe City did not sustain its burden of showing that Mr. Boone's application materials fall within\nthe scope of section 7(1)(c).\n\nRecords Concerning Selection and Interview Process\n\nThe City asserted it did not possess records responsive to part three of [REDACTED]\n[REDACTED] request at the time of his submission. The City explained that neither the City nor\nPolihire received any records from references or other third parties on behalf of Mr. Boone. The\nCity further asserted that a number of records related to Mr. Boone's candidacy \"were created\nafter the date of the FOIA request[.]\"7 Additionally, the City stated it withheld \"transitory email\ncommunications between Polihire and the City regarding the hiring process and which also\ninclude attachments regarding the applicants.\"8 The City contended that those e-mails were not\nresponsive to the request and, even if they were, fell within the scope of section 7(1)(c). The\nCity provided this office with copies of these records to illustrate its ongoing selection and\ninterview process.\n\nThis office's review of the records confirmed that a portion of the City's records\npertaining to Mr. Boone's candidacy and interview process were prepared after the submission of\n[REDACTED] request. Records that do not exist at the time of a request are not responsive to the\nrequest. Walker v. Bruscato, 2019 IL App (2d) 170775 ¶ 45 (\"A request for records not yet\ncreated is invalid.\"); see also Ill. Att'y Gen. PAC Req. Rev. Ltr. 25707, issued August 30, 2013,\nat 2. (\"public body is not obligated to respond to a FOIA request by furnishing records created\nafter the submission of a request; such records are outside the scope of the request.\"). \nAccordingly, the City did not improperly withhold those records.\n\nThe \"transitory email communications,\" however, are dated before the submission\nof the request. Although these e-mails do not focus solely on Mr. Boone and also contain\ninformation regarding other candidates, the e-mails nonetheless pertain to the City's selection of\nMr. Boone out of the applicant pool and thus are responsive to the request. Based on this office's\nreview, two of the e-mails show Polihire transmitting candidate information to the City. The\n\n7 Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (June 5, 2023), at 4.\n\n8 Letter from Ross McNeil, FOIA Officer, City of Urbana, to Teresa Lim, Supervising Attorney,\nPublic Access Bureau, Office of the Attorney General (June 5, 2023), at 4.\n\ncandidates included Mr. Boone and certain other individuals. With the exception of one e-mail attachment containing Mr. Boone's application, the remaining parts of those two e-mails pertain to the other candidates. Disclosure of information concerning those unsuccessful candidates, including their applications, would constitute an unwarranted invasion of personal privacy. As discussed above, disclosure of records identifying unsuccessful applicants could cause embarrassment, interfere with the applicants' existing employment, and hamper public bodies from attracting qualified applicants for open positions. With respect to the remaining two e-mails, this office's review determined that they do not disclose details of any of the candidates' applications or personally-identifying information; they also do not reveal any deliberations regarding them. Instead, the e-mails contain general status updates about the selection process. The City did not demonstrate that these communications are highly personal in nature or that their disclosure would constitute a clearly unwarranted invasion of personal privacy. Accordingly, this office concludes that the City did not show by clear and convincing evidence that those two transitory e-mails are exempt from disclosure pursuant to section 7(1)(c).\n\nThis office requests that the City provide [REDACTED] with a copy of Mr. Boone's application materials, subject to permissible redactions under section 7(1)(b) of FOIA.⁹ This office also requests that the City provide copies of the last two e-mail chains that were provided for this office's confidential review. The City may redact parts of the e-mail chains that do not pertain to the police chief selection process.\n\nThe 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 the Chicago address listed on the first page of this letter.\n\nVery truly yours,\n\n[REDACTED]\nTERESA LIM\nSupervising Attorney\nPublic Access Bureau\n\n76460 f 71c proper improper mun\n\n⁹5 ILCS 140/7(1)(b) (West 2022), as amended by Public Act 103-154, effective June 30, 2023; 103-462, effective August 4, 2023."}
{"id":1007,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-19","case_number":null,"request_numbers":["76546"],"title":"IDFPR improperly withheld email under cannabis regulation exemption without narrow tailoring","filename":"76546, issued 071923.pdf","rel_path":null,"word_count":1602,"summary":"The requester sought an email between an IDFPR official and two individuals, which the Department withheld citing the Cannabis Regulation and Tax Act; the PAC determined the Department improperly withheld the email and requested a more limited redaction.","plain_summary":"A citizen requested an email from the Illinois Department of Financial & Professional Regulation (IDFPR), but the agency refused to release it, claiming the information was protected by cannabis-related laws. The Attorney General's office reviewed the email and found that the agency was too broad in its denial. The PAC instructed the agency to release the email with only specific, limited redactions rather than withholding the entire document.","holding":"The Illinois Department of Financial & Professional Regulation improperly withheld the requested email by failing to narrowly tailor its redactions to only the information protected by the Cannabis Regulation and Tax Act.","legal_question":"Whether the IDFPR properly applied the exemption in section 7(1)(a) of FOIA, in conjunction with section 55-30(b) of the Cannabis Regulation and Tax Act, to withhold the entirety of an email.","disposition":"violation_found","primary_statute":["5 ILCS 140/7(1)(a)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois Department of Financial & Professional Regulation","requesting_party":null,"pac_outcome":"Improperly withheld records","pac_law_type":null,"subject_category":"cannabis regulation","subject_description":"The request concerned an email between the Department's Deputy Director of Cannabis Control and two other individuals regarding cannabis licensing or regulatory matters.","ocr_status":"ok","ocr_quality":96.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_rr/76546%2C%20issued%20071923.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["cannabis","IDFPR","email records","redaction","FOIA denial"],"truncated_suspect":0,"site_category":"Other","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 19, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Anderson\nFOIA Officer\nIllinois Department of Financial &  Professional Regulation\n555 West Monroe Street,  Suite 500\nChicago, Illinois 60661\nFPR. FOIA@Illinois. gov\n\nRE:   FOIA Request for Review –  2023 PAC 76546\n\nDear\n\nand Ms.  Anderson: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)).  For the reasons explained below, the\nPublic Access Bureau concludes that the Illinois Department of Financial &  Professional\nRegulation (\" Department\" or \"IDFPR\") improperly denied certain information responsive to\n\nMay 2, 2023,  FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Department seeking a\n\ncopy of a specific e-mail between Mr. Vaughn Bentley, the Department's Deputy Director of\nCannabis Control,  and two named persons.   On May 9, 2023,  the Department denied the body of\nthe e-mail, citing section 55-30(b) of the Cannabis Regulation and Tax Act (CRTA).1 The\n\n1410 ILCS 705/55-30(b) (West 2022). \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 2\n\nimplicitly premised the denial on section 7(1)( a)  of FOIA, 2 which exempts from\n\nDepartment\ndisclosure \"[ i]nformation specifically prohibited from disclosure by federal or State law or rules\nand regulations implementing federal or State law.\"   On that same date,  this office received\n\nRequest for Review contesting the denial.  He argued that the language of section 55-\n\n30( b) of the CRTA does not apply to the particular record he seeks. \n\nOn May 12, 2023,  this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide an unredacted copy of the e-mail at issue for this office's\nreview,  together with a detailed explanation of the legal and factual bases for the\nconfidential\napplicability of the asserted exemption.  On May 19, 2023, the Department furnished those\nmaterials.   Later on that same date, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying.  Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\"   5 ILCS\n140/1.2 (West 2022).   \n\nSection 7(1)( a) of FOIA\n\nSection 7(1)( a)  exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\"   Under this provision, \" an exemption restricting the expansive nature of the FOIA' s\ndisclosure provisions must be explicitly stated - that is, such a proposed disclosure must be\nspecifically prohibited.\"   ( Emphasis in original.)   Better Government Ass' n v. Blagojevich,  386\nIll. App. 3d 808, 815-16 (4th Dist. 2008).  \n\nIn its answer to this office, the Department maintained that its denial was proper\n\nunder section 55- 30( b)  of the CRTA,  which provides,  in relevant part: \n\nb)  The following information received and records kept by * * * \nthe Department of Financial and Professional Regulation for\npurposes of administering this Article are subject to all\napplicable federal privacy laws, are confidential and exempt\nfrom disclosure under the Freedom of Information Act, except\nas provided in this Act, and not subject to disclosure to any\nindividual or public or private entity * * *: \n\n25 ILCS 140/7(1)(a) ( West 2022). \n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 3\n\n1)  Applications and renewals,  their contents,  and\n\nsupporting information submitted by or on behalf of\ndispensing organizations,  cannabis business\nestablishments, or Community College Cannabis\nVocational Program licensees,  in compliance with this\nArticle, including their physical addresses; however, \nthis does not preclude the release of ownership\ninformation about cannabis business establishment\nlicenses,  or information submitted with an application\nrequired to be disclosed pursuant to subsection (f); \n\n2)  Any plans,  procedures,  policies,  or other records\n\nrelating to cannabis business establishment security; \nand\n\n3)  Information otherwise exempt from disclosure by State\n\nor federal\n\nlaw. \n\nThe preceding subsection of the statute, 3 however,  specifies that: \n\nInformation provided by the cannabis business\n\nestablishment licensees or applicants to * * *  the Department of\nFinancial and Professional Regulation * * *  shall be limited to\ninformation necessary for the purposes of administering this Act. \nThe information is subject to the provisions and limitations\ncontained in the Freedom of Information Act and may be disclosed\nin accordance with Section 55- 65.[4] \n\nThe Department maintained that it properly denied the requested e- mail because: \n\nThe email in question is unequivocally related to a cannabis\n\napplication. There are questions and comments throughout the\nemail,  all of which refer to the application.  Because of the\nconfidentiality clauses of both FOIA and CRTA this email should\nto protect the private conversation between the\nremain confidential\n\n3410 ILCS 705/55-30(a) ( West 2022). \n\nfinancial institutions.   \n\n4Subsection 55-65 (410 ILCS 705/55-65 (West 2022)) concerns the provision of information to\n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 4\n\nIDFPR Deputy Director/ attorney and the cannabis dispensary\napplicants.[5] \n\nIn reply, addressing the language of section 55-30(b)(1), \n\nargued that: \n\nThere can be no dispute that the email in question FROM the\nDeputy Director,  Vaughn Bentley,  was not \" submitted by or on\nbehalf of dispensing organizations, cannabis business\nestablishments,  or Community College Cannabis Vocational\nProgram licensees[.]\"   The provision is not intended nor written to\ncloak communications FROM public officials.  The Department has\na public duty to administer applicant licensing and the public has\nthe duty to see that it is performed in the public interest.  \nEmphasis in original.)[6] \n\nSection 55-30(b)(1) of the CRTA expressly prohibits disclosure of not just\n\napplications and renewals,  but \" their contents,  and supporting information.\"   The Illinois\nSupreme Court has advised that when interpreting a statute, \"[ e]ach word, clause and sentence of\nthe statute,  if possible,  must be given reasonable meaning and not rendered superfluous.\"   In re\nDetention of Lieberman,  201 Ill.2d 300,  308 ( 2002).   Accordingly,  the Public Access Bureau has\ndetermined that the statutory language \" their contents, and supporting information\" must mean\nmore than the applications and renewals themselves;  at a minimum,  it necessarily extends to\ninformation derived from an application that is recorded in other documents, regardless of\nformat. 7\n\nThis office' s review of the withheld e- mail confirmed that it concerns an\n\napplication under the CRTA and discusses the contents of the application.  The e-mail is not, \nhowever,  an application or renewal,  nor does it solely consist of the contents of an application or\nrenewal or supporting information submitted by or on behalf of dispensing organizations or\ncannabis business establishments.   Section 7(1) of FOIA8 provides that: \n\nPublic Access Bureau, Illinois Attorney General's Office (May 19, 2023), at 2. \n\n5Letter from Kathleen Anderson, FOIA Officer, IDFPR, to Joshua Jones, Deputy Bureau Chief, \n\n6E- mail from\n\nRiver North Citizens, to [Joshua]  Jones ( May 19, 2023). \n\n7Ill. Att'y Gen. PAC Req. Rev. Ltr. 62084, issued March 31, 2020, at 5 (ownership information\n\nderived from an application or an amendment to application materials was exempt under section 7(1)(a) even if\ncompiled into a spreadsheet or database). \n\n85 ILCS 140/7(1) (West 2022). \n\n\fMs. Kathleen Anderson\nJuly 19, 2023\nPage 5\n\nWhen a request is made to inspect or copy a public record that\ncontains information that is exempt from disclosure under this\nSection,  but also contains information that is not exempt from\ndisclosure, the public body may elect to redact the information that\nis exempt.  The public body shall make the remaining information\navailable for inspection and copying. \n\nIn this instance, the Department did not demonstrate that this provision is inapplicable because it\ndid not prove by clear and convincing evidence that the letter it sent to the two named\nindividuals is exempt from disclosure in its entirety.  The Department asserts that the record as a\nwhole is \" unequivocally related to a cannabis application.\"   Regardless,  the General Assembly\ncould have specified in section 55-30(b)(1) of the CRTA that agency communications about or\nrelated to applications are exempt from disclosure in their entireties,  but it did not choose to do\nso.  A reviewing body \"may not read into a statute limitations or conditions not explicitly set\nforth in the plain statutory language.\"   In re Estate of Shelton,  2017 IL 121199, ¶ 43, 89 N.E.3d\n391, 402 (2017).  Under these circumstances, the Department has not provided the Public Access\nBureau with a legal basis from which it could conclude that the Department may withhold the\nfull substantive content of the message pursuant to FOIA.  To remedy its improper denial, this\noffice asks the Department\nredaction of the discrete information that would unavoidably reveal the contents of applications, \nrenewals, or supporting information submitted by or on behalf of the applicant.  In particular, the\nmiddle paragraph depicts application contents,  with the exception of the second clause,  while the\nfirst and third paragraphs largely set forth information concerning the Department's procedures\nand expectations. \n\nto disclose a copy of the e- mail to\n\nsubject to the\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This letter closes this matter.  If you have any\nquestions,  please contact me at joshua. jones@ilag. gov.   \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n76546 f 71a proper improper sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"An email about cannabis licensing between a department's deputy director and two others","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76546/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 19, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Kathleen Anderson\nFOIA Officer\nIllinois Department of Financial & Professional Regulation\n555 West Monroe Street, Suite 500\nChicago, Illinois 60661\nFPR. FOIA@Illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 76546\n\nDear\n\nand Ms. Anderson: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons explained below, the\nPublic Access Bureau concludes that the Illinois Department of Financial & Professional\nRegulation (\" Department\" or \"IDFPR\") improperly denied certain information responsive to\n\nMay 2, 2023, FOIA request. \n\nOn that date, \n\nsubmitted a FOIA request to the Department seeking a\n\ncopy of a specific e-mail between Mr. Vaughn Bentley, the Department's Deputy Director of\nCannabis Control, and two named persons. On May 9, 2023, the Department denied the body of\nthe e-mail, citing section 55-30(b) of the Cannabis Regulation and Tax Act (CRTA).1 The\n\n1410 ILCS 705/55-30(b) (West 2022). \n\nimplicitly premised the denial on section 7(1)(a) of FOIA, 2 which exempts from\n\nDepartment\ndisclosure \"[ i]nformation specifically prohibited from disclosure by federal or State law or rules\nand regulations implementing federal or State law.\" On that same date, this office received\n\nRequest for Review contesting the denial. He argued that the language of section 55-\n\n30(b) of the CRTA does not apply to the particular record he seeks. \n\nOn May 12, 2023, this office sent a copy of the Request for Review to the\n\nDepartment and asked it to provide an unredacted copy of the e-mail at issue for this office's\nreview, together with a detailed explanation of the legal and factual bases for the\nconfidential\napplicability of the asserted exemption. On May 19, 2023, the Department furnished those\nmaterials. Later on that same date, \n\nsubmitted a reply. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\n\nopen to inspection or copying. Any public body that asserts that a record is exempt from\ndisclosure has the burden of proving by clear and convincing evidence that it is exempt.\" 5 ILCS\n140/1.2 (West 2022). \n\nSection 7(1)(a) of FOIA\n\nSection 7(1)(a) exempts from disclosure \"[ i]nformation specifically prohibited\nfrom disclosure by federal or State law or rules and regulations implementing federal or State\nlaw.\" Under this provision, \" an exemption restricting the expansive nature of the FOIA's\ndisclosure provisions must be explicitly stated - that is, such a proposed disclosure must be\nspecifically prohibited.\" (Emphasis in original.) Better Government Ass' n v. Blagojevich, 386\nIll. App. 3d 808, 815-16 (4th Dist. 2008). \n\nIn its answer to this office, the Department maintained that its denial was proper\n\nunder section 55- 30(b) of the CRTA, which provides, in relevant part: \n\nb) The following information received and records kept by * * * \nthe Department of Financial and Professional Regulation for\npurposes of administering this Article are subject to all\n\n1) Applications and renewals, their contents, and\n\nsupporting information submitted by or on behalf of\ndispensing organizations, cannabis business\nestablishments, or Community College Cannabis\nVocational Program licensees, in compliance with this\nArticle, including their physical addresses; however, \nthis does not preclude the release of ownership\ninformation about cannabis business establishment\nlicenses, or information submitted with an application\nrequired to be disclosed pursuant to subsection (f); \n\n2) Any plans, procedures, policies, or other records\n\nrelating to cannabis business establishment security; \nand\n\n3) Information otherwise exempt from disclosure by State\n\nor federal\n\nlaw. \n\nThe preceding subsection of the statute, 3 however, specifies that: \n\nInformation provided by the cannabis business\n\nestablishment licensees or applicants to * * * the Department of\nFinancial and Professional Regulation * * * shall be limited to\ninformation necessary for the purposes of administering this Act. \nThe information is subject to the provisions and limitations\ncontained in the Freedom of Information Act and may be disclosed\nin accordance with Section 55- 65.[4] \n\nThe Department maintained that it properly denied the requested e- mail because: \n\nThe email in question is unequivocally related to a cannabis\n\napplication. There are questions and comments throughout the\nemail, all of which refer to the application. Because of the\nconfidentiality clauses of both FOIA and CRTA this email should\nto protect the private conversation between the\nremain confidential\n\n3410 ILCS 705/55-30(a) (West 2022). \n\nfinancial institutions. \n\n4 Subsection 55-65 (410 ILCS 705/55-65 (West 2022)) concerns the provision of information to\n\nIDFPR Deputy Director/ attorney and the cannabis dispensary\napplicants.[5] \n\nIn reply, addressing the language of section 55-30(b)(1), \n\nargued that: \n\nThere can be no dispute that the email in question FROM the\nDeputy Director, Vaughn Bentley, was not \" submitted by or on\nbehalf of dispensing organizations, cannabis business\nestablishments, or Community College Cannabis Vocational\nProgram licensees[.]\" The provision is not intended nor written to\ncloak communications FROM public officials. The Department has\na public duty to administer applicant licensing and the public has\nthe duty to see that it is performed in the public interest. \nEmphasis in original.)[6] \n\nSection 55-30(b)(1) of the CRTA expressly prohibits disclosure of not just\n\napplications and renewals, but \" their contents, and supporting information.\" The Illinois\nSupreme Court has advised that when interpreting a statute, \"[ e]ach word, clause and sentence of\nthe statute, if possible, must be given reasonable meaning and not rendered superfluous.\" In re\nDetention of Lieberman, 201 Ill.2d 300, 308 (2002). Accordingly, the Public Access Bureau has\ndetermined that the statutory language \" their contents, and supporting information\" must mean\nmore than the applications and renewals themselves; at a minimum, it necessarily extends to\ninformation derived from an application that is recorded in other documents, regardless of\nformat. 7\n\nThis office's review of the withheld e- mail confirmed that it concerns an\n\napplication under the CRTA and discusses the contents of the application. The e-mail is not, \nhowever, an application or renewal, nor does it solely consist of the contents of an application or\nrenewal or supporting information submitted by or on behalf of dispensing organizations or\ncannabis business establishments. Section 7(1) of FOIA8 provides that: \n\nPublic Access Bureau, Illinois Attorney General's Office (May 19, 2023), at 2. \n\n5 Letter from Kathleen Anderson, FOIA Officer, IDFPR, to Joshua Jones, Deputy Bureau Chief, \n\n6E- mail from\n\nRiver North Citizens, to [Joshua] Jones (May 19, 2023). \n\n7 Ill. Att'y Gen. PAC Req. Rev. Ltr. 62084, issued March 31, 2020, at 5 (ownership information\n\nderived from an application or an amendment to application materials was exempt under section 7(1)(a) even if\n\nWhen a request is made to inspect or copy a public record that\ncontains information that is exempt from disclosure under this\nSection, but also contains information that is not exempt from\ndisclosure, the public body may elect to redact the information that\nis exempt. The public body shall make the remaining information\navailable for inspection and copying. \n\nIn this instance, the Department did not demonstrate that this provision is inapplicable because it\ndid not prove by clear and convincing evidence that the letter it sent to the two named\nindividuals is exempt from disclosure in its entirety. The Department asserts that the record as a\nwhole is \" unequivocally related to a cannabis application.\" Regardless, the General Assembly\ncould have specified in section 55-30(b)(1) of the CRTA that agency communications about or\nrelated to applications are exempt from disclosure in their entireties, but it did not choose to do\nso. A reviewing body \"may not read into a statute limitations or conditions not explicitly set\nforth in the plain statutory language.\" In re Estate of Shelton, 2017 IL 121199, ¶ 43, 89 N.E.3d\n391, 402 (2017). Under these circumstances, the Department has not provided the Public Access\nBureau with a legal basis from which it could conclude that the Department may withhold the\nfull substantive content of the message pursuant to FOIA. To remedy its improper denial, this\noffice asks the Department\nredaction of the discrete information that would unavoidably reveal the contents of applications, \nrenewals, or supporting information submitted by or on behalf of the applicant. In particular, the\nmiddle paragraph depicts application contents, with the exception of the second clause, while the\nfirst and third paragraphs largely set forth information concerning the Department's procedures\nand expectations. \n\nto disclose a copy of the e- mail to\n\nsubject to the\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter closes this matter. If you have any\nquestions, please contact me at joshua. jones@ilag. gov. \n\nVery truly yours, \n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n76546 f 71a proper improper sa"}
{"id":1008,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-05-06","case_number":null,"request_numbers":["76612"],"title":"Illinois State Police improperly required form and fees for body camera footage","filename":"76612, issued May 6, 2024.pdf","rel_path":null,"word_count":3117,"summary":"The requester sought squad car and body camera footage from the Illinois State Police (ISP), which the ISP delayed by placing the request on a waitlist, requiring a specific form, and charging fees. The PAC determined that the ISP improperly required a form and assessed improper fees, but found the redactions to the provided audio were appropriate.","plain_summary":"A citizen requested squad camera and body worn camera footage of a traffic stop from the Illinois State Police. The police placed the request on a waitlist, required the requester to fill out a form, and assessed fees to provide the footage. The Public Access Bureau of the Illinois Attorney General's office concluded that the police improperly required the form and fees, and that FOIA does not permit charging fees for the video recordings.","holding":"The Illinois State Police improperly required the requester to complete a form and pay fees to obtain body and squad camera footage.","legal_question":"Whether a public body may require a requester to complete a specific form and pay fees beyond the cost of the recording medium for body and squad camera footage.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/6"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(a)","7(1)(b)","7(1)(c)"],"public_body":"Illinois State Police","requesting_party":"Anonymous requester","pac_outcome":"Partial violation found","pac_law_type":null,"subject_category":"police records","subject_description":"The requester sought dashcam and body-worn camera footage related to a traffic stop.","ocr_status":"ok","ocr_quality":97.6,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_c/76612%2C%20issued%20May%206%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["police records","body camera","fees","FOIA request form"],"truncated_suspect":0,"site_category":"Police & Investigative Records","full_text_pre_clean":"May 6, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Amelia Finch\nTechnical Advisor III\nIllinois State Police\nLegal Office\n801 South Seventh Street,  Suite 1000- S\nSpringfield, Illinois 62703\nISP. FOIA. Officer@illinois. gov\n\nRE:   FOIA Request for Review –  2023 PAC 76612\n\nDear\n\nand Ms.  Finch: \n\nThis determination letter is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, \neffective January 1, 2024).   For the reasons stated below,  the Public Access Bureau concludes\nthat the Illinois State Police (ISP) improperly required\nto fill out a form to\nobtain squad camera and body worn camera footage and improperly assessed fees to provide the\nfootage.  This office further concludes that ISP did not improperly redact the audio recording\nprovided to\n\nOn April 7, 2023, \n\nsubmitted a FOIA request to ISP seeking\n\nDashcam, bodycam, and interior of patrol vehicle video which depict me or my vehicle\" \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 2\n\npertaining to a traffic stop.1 After extending the time to respond by five business days, on April\n21,  2023,  ISP provided a responsive audio record subject to redactions under sections 7(1)( a), \n7(1)(b), and 7(1)(c) of FOIA.2 That same day, ISP informed\nresponsive to his request,  but placed his request for the video recordings on hold because he is on\na waitlist.  ISP also informed\nthat once his request came up on its waitlist, it would\nthat\nsend him a request form and require payment.   On June 12, 2023,  ISP informed\nit located video that may be responsive to his FOIA request, and that if he still wished to receive\nthe video recordings,  consisting of a disk containing the recording from the squad camera and\nanother disk containing body worn camera footage, he was required to fill out a form and pay\nISP $ 100. 00 for each disk pursuant\nthe Administrative Code.3\nreviewed or redacted until after payment\ncontests the redactions of the audio recording and the denial of the video recording.      \n\nto the fee schedule set forth in section 1298. 40 of title 20 of\n\nthat the video recordings would not be\n\nis received.   In his Request for Review, \n\nthat it found video\n\nISP also informed\n\nAfter an Assistant Attorney General (AAG) in the Public Access Bureau's efforts\n\nto mediate this matter were unsuccessful,  on July 12,  2023,  this office forwarded a copy of\n\nRequest for Review to ISP and asked it to provide for our confidential review\nunredacted copies of the audio recording and the withheld squad camera footage and body worn\ncamera footage, along with a detailed written explanation of the factual and legal bases for\nredacting and withholding those records.   This office also asked ISP to address the factual and\nlegal basis for requiring\ncamera and body worn camera recordings,  and for requiring\nbefore providing the two video recordings.  On July 21, 2023, ISP responded. \nreply.  \n\nto fill out a standardized form to obtain the requested squad\n\nto pay ISP $ 200. 00\n\ndid not\n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with this Act.\"  5 ILCS\n140/ 1 ( West 2022).   Under section 1.2 of FOIA, 4 \"[ a] ll records in the custody or possession of a\npublic body are presumed to be open to inspection or copying.\"  FOIA requires that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \n\nInformation Act Video Request Form (April 7, 2023).    \n\n1E- mail from\n\nto Illinois State Police, on Illinois State Police Freedom of\n\n25 ILCS 140/7(1)(a), 1(b), 1(c) (West 2022). \n\n320 Ill. Adm. Code § 1298.40 (West 2022), last amended at 42 Ill. Reg. 19238, effective October\n\n10, 2018. \n\n45 ILCS 140/1.2 (West 2022).  \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 3\n\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.\"5 FOIA shall be \" liberally\nconstrue[ d] * * * \ncitizen.\"  Sage Information Services. v. Humm, 2012 IL App (5th) 110580, ¶ 19.  \n\nin favor of ease of access to public records on the part of any interested\n\nThe Audio Recording\n\ncontested the redaction of the audio recording that ISP provided to\n\nhim.   In its response,  ISP explained that it had redacted one license plate number from the\nrecording pursuant to section 7(1)(b) of FOIA.  Section 7(1)(b) of FOIA exempts from disclosure\np] rivate information,  unless disclosure is required by another provision of this Act, a State or\nfederal law or a court order.\"  Section 2(c-5) of FOIA6 defines \"private information\" as \" unique\nidentifiers,  including a person' s * * *  home address and personal\nhas listened to the audio recording and concludes that the redacted license plate number is\nexempt under FOIA.   Accordingly,  ISP did not violate FOIA by redacting the license plate\nnumber in the audio clip.  \n\nlicense plates[.]\"   This office\n\nThe Squad Camera and Body Worn Camera Footage\n\nSection 3(d) of FOIA7 provides that \"[ e]ach public body shall, promptly, either\ncomply with or deny a request for public records within 5 business days after its receipt of the\nrequest, unless the time for response is properly extended under subsection (e) of this Section.\"  \nSection 3(e)  of FOIA8 provides that \"[ t]he time for response under this Section may be extended\nby the public body for not more than 5 business days from the original due date\"  for any of seven\nenumerated reasons.   FOIA permits an extension for more than five business days only if the\nrequester and the public body \"agree in writing to\" the extension.  5 ILCS 140/3(e) ( West 2022).  \nSection 3(f) of FOIA9 further provides:  \n\nWhen additional\n\ntime is required [ under section 3(e)],  the\n\npublic body shall, within 5 business days after receipt of the\nrequest,  notify the person making the request of the reasons for the\nextension and the date by which the response will be forthcoming. \nFailure to respond within the time permitted for extension shall be\nconsidered a denial of the request. A public body that fails to\n\n55 ILCS 140/3(a) ( West 2022). \n\n65 ILCS 140/2(c-5) (West 2022). \n\n75 ILCS 140/3(d) (West 2022). \n\n85 ILCS 140/3(e) ( West 2022).  \n\n95 ILCS 140/3(f) (West 2022).   \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 4\n\nrespond to a request within the time permitted for extension\nbut thereafter provides the requester with copies of the\nrequested public records may not impose a fee for those copies. \nEmphasis added.) \n\nAfter extending the time to respond to\n\nFOIA request,  on April\n\n21, 2023, ISP sent correspondence to\ninforming him that it found responsive squad\ncar and body camera video but placed his request for the video recordings on hold because he is\nrequest for the squad car\non a waitlist.  That correspondence neither complied with\nor body camera video by providing him the responsive records,  nor properly denied his request\nfor those records.  Instead, the correspondence amounted to an indefinite extension that is not\nauthorized by any provision of FOIA.   \n\nISP' s response to this office emphasized that it \"receives an average of 550 FOIA\n\nrequests each month.  ISP does not maintain the resources to compile, review, redact and\nsubsequently produce every record responsive to every FOIA request in 10 business days.   ISP\nsends requesters detailed communications to keep them apprised of the status of their request if it\nis not handled completely within the 10 days\" 10 The Public Access Bureau recognizes that\nresponding to large numbers of FOIA requests, especially for records such as recordings that\nmay be lengthy and require careful review for information that is subject to redaction under\nFOIA, may make substantial demands on a public body's resources.  Nevertheless, section 1 of\nFOIA provides:  \" The General Assembly declares that providing records in compliance with the\nrequirements of this Act is a primary duty of public bodies to the people of this State, and this\nAct should be construed to this end,  fiscal obligations notwithstanding.\"   More importantly, \nsection 3(f) of FOIA expressly precludes public bodies from assessing copies of fees for records\nif they fail to provide records within the time permitted for extensions under the Act.  Because\nISP extended the time to respond to\nfailed to comply with the request,  properly deny the request,  or obtain\nconsent to a longer extension, this office concludes that FOIA does not permit ISP to charge\n\nrequest by five business days but subsequently\n\nwritten\n\nfees for copies of the video recordings.   \n\nEven if ISP did issue a timely substantive response to\n\nrequest,  FOIA\n\nprecludes ISP from charging $200.00 for the two video recordings.  That charge derives from\nsection 1298. 40( c) of the Administrative Code, 11 which fixes a fee of $100 for each video\nrecording that is more than 160 megabytes.  Section 6(a) of FOIA12 provides: \n\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau (July 21, 2023), at 3. \n\n10Letter from Amelia Finch, Technical Advisor III, Office of the Director, Illinois State Police, to\n\n1120 Ill. Adm. Code § 1298.40(c) (West 2022), last amended at 42 Ill. Reg. 19238, effective\n\nOctober 10, 2018.  \n\n125 ILCS 140/6(a) ( West 2022).   \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 5\n\nWhen a person requests a copy of a record maintained\nin an electronic format,  the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is\nnot feasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body,  or in paper format at the option\nof the requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium,  whether disc, \ndiskette, tape, or other medium. * * *  Except to the extent that\nthe General Assembly expressly provides,  statutory fees\napplicable to copies of public records when furnished in a\npaper format shall not be applicable to those records when\nfurnished in an electronic format.  (Emphasis added.) \n\nSection 6(b) of FOIA13 provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each\n\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use,  by any person,  of the equipment of the public body to copy\nrecords. * * *   In calculating its actual cost for reproducing records\nor for the use of the equipment of the public body to reproduce\nrecords, a public body shall not include the costs of any search for\nand review of the records or other personnel costs associated with\nreproducing the records, except for commercial requests as\nprovided in subsection ( f) of this Section.  \n\nBased upon these provisions,  the Illinois Appellate Court held that \" FOIA does\nnot allow a fee in excess of the cost of the electronic medium for the reproduction of electronic\nrecords unless another statute expressly provides that the fees for producing paper records also\napply to electronic copies.\"  ( Emphasis added.)  Sage Information Services, 2012 IL App (5th) \n110580, ¶  18.   In concluding that fees for an electronic copy of a real property assessment record\nwas limited to cost of the recording medium under section 6(a) of FOIA rather than the\nsubstantially greater fees for paper records set forth in the Property Tax Code,  the court\nexplained: \n\n135 ILCS 140/6(b) (West 2022).    \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 6\n\nW]e are guided by the expressed legislative intent and the public\npolicy sought to be effected by the FOIA.  Section 1 of the FOIA\nstates that restraints on access to information are not to be\npermitted except as very limited exceptions and that the FOIA\nshould be construed in accordance with this principle. 5 ILCS\n140/ 1 ( West 2010).  A substantial\naccess to information in contravention of the expressed\nlegislative intent.  Section 1 also makes clear that providing public\nrecords to citizens is a primary duty of public bodies and that the\nFOIA should be construed to this end,  fiscal obligations\nnotwithstanding. 5 ILCS 140/1 (West 2010). It is our duty to\nliberally construe the FOIA in favor of ease of access to public\nrecords on the part of any interested citizen. We have done so here.  \nEmphasis added.) \n\nfee constitutes a restraint on\n\nSee also Sage Information Services v. Suhr,  2014 IL App ( 2d)  130708, ¶  20 ( section 6(a)  of\nFOIA is unambiguous and does not allow exceptions to the cost-only rule for electronic records\nunless fees fixed by another statute expressly state that they apply to other records).   \n\nISP argues that it is allowed to charge fees for electronic video recordings based\n\non section 2605-10(b) of the Illinois State Police Law,14 which provides that ISP \" shall have the\npowers and duties set forth in the following Sections[,]\"  and section 2605- 15 of the Illinois State\nPolice Law,15 which allows ISP \"[ t]o promulgate rules and regulations necessary for the\nadministration and enforcement of its powers and duties,  wherever granted and imposed, \npursuant to the Illinois Administrative Procedure Act.\"  ISP maintains that these statutes\nauthorize it to require individuals who submit a FOIA request to pay fees to obtain imaging\nproducts such as squad car and body camera videos, as set forth in sections 1298.10 through\n1298. 40 of title 20 of the Illinois Administrative Code. 16 According to ISP, \"[ i]f the General\nAssembly did not intend to grant ISP the authority to charge fees for imaging products via FOIA, \nit would have been clear in the Illinois State Police Law where such authority is granted.\" 17\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly.  DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n\n1420 ILCS 2605/2605-10 (West 2022). \n\n1520 ILCS 2605/2605-15 (West 2022). \n\nReg. 19238, effective October 10, 2018. \n\n1620 Ill. Adm. Code §§ 1298.10, 1298.20, 1298.30, 1298.40 (West 2022), last amended at 42 Ill. \n\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau (July 21, 2023), at 3.  \n\n17Letter from Amelia Finch, Technical Advisor III, Illinois State Police, Office of the Director, to\n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 7\n\n2006).  \"The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\"   Gaffney v. Board of Trustees of Orland Fire Protection District,  2012\nIL 110012, ¶ 56.  Where the language of a statute is clear and unambiguous, a reviewing body\nmay not depart from the plain language by reading into the statute exceptions,  limitations,  or\nconditions that the legislature did not express.\"   Hayashi v. Illinois Department of Financial & \nProfessional Regulation,  2014 IL 116023, ¶  16.   \n\nSection 6(a)  and 6(b) of FOIA plainly state that the fee provisions of FOIA apply\n\nto requests for public records unless a different fee is fixed by another statute and the General\nAssembly expressly states that the fee applies to electronic records.   If the General Assembly had\nintended to authorize State agencies to use administrative rules as well as statutes to establish\nfees that supersede FOIA,  it would have specifically referred to administrative rules as it has in\ncrafting provisions such as section 7(1)(a) of FOIA,18 which exempts from disclosure\n\ni]nformation specifically prohibited from disclosure by federal or State law or rules and\n\nregulations implementing federal or State law.\"  To the extent that section 2605-15 of the Illinois\nState Police Law could be construed as conflicting with FOIA,  it is a general grant of authority to\npromulgate rules and regulations that does not contain any reference to fees for public records.  \nIn contrast,  section 6(b)  of FOIA specifically relates to such fees and therefore takes precedence.  \nPeople v. Villarreal, 152 Ill. 2d 368, 379 (1992) (\" It is a fundamental rule of statutory\nconstruction that where there exists a general statutory provision and a specific statutory\nprovision, either in the same or another act, which both relate to the same subject, the specific\nprovision controls and should be applied.\"). \n\nCharging fees in excess of the cost of the recording medium for imaging products\n\npursuant to administrative rules cannot be reconciled with the plain language of FOIA and\nconstitutes a restraint on access to information that contradicts the intent of the Act.   This office\nhas consistently determined, and has previously notified ISP, that FOIA does not permit it to\ncharge requesters fees based on a fee schedule in the Administrative Code.   See Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 31244, issued February 21, 2018 (requesting ISP to reimburse a requester\nthe fee paid for a DVD);  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 39015,  issued January 6, 2016\ndetermining that ISP improperly charged a requester for a copy of a CD beyond the cost for the\nrecording medium);  Ill. Att'y Gen.  PAC Req.  Rev.  Ltr. 17989,  issued February 5, 2014 ( same).  \nLikewise, in the present matter, this office concludes that ISP violated FOIA by improperly\ncharging\n200. 00 for the two recordings based on fees fixed by its administrative\nrule.   \n\nIn addition, section 3(c) of FOIA (5 ILCS 140/3(c) (West 2022)) provides, in part, \n\nthat \"[ a]  public body may not require that a request be submitted on a standard form[.]\" \n\n185 ILCS 140/7(1)(a) ( West 2022), as amended by Public Acts 103-154, effective June 30, 2023;  \n\n103-423, effective January 1, 2024; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023; 103-540, \neffective January 1, 2024; 103-554, effective January 1, 2024.  \n\n\fMs. Amelia Finch\nMay 6, 2024\nPage 8\n\nAccordingly, ISP also violated FOIA by requiring\ncar and body camera videos.  \n\nto fill out a form to obtain squad\n\nIn accordance with the conclusions set out above,  this office requests that ISP\n\nwith copies of the squad car and body camera videos responsive to his FOIA\n\nprovide\nrequest,  without charging fees or requiring a form to be filled out,  subject only to permissible\nredactions under section 7 of FOIA if it has not done so already.  If\nISP for the requested records,  this office requests that ISP reimburse\npaid for the recordings.  This office also requests that in the future ISP refrain from assessing\nfees beyond the cost of the recording medium for video recordings requested under FOIA.  \n\nhas already paid\nfor all amounts\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.  This file is closed.  If you have any questions, \nplease contact me at 312- 814- 5201 or at edie. steinberg@ilag. gov.  \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n76612 3c improper 6a improper 71b proper pd sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Police dashcam and body-camera footage of a traffic stop","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76612/","full_text":"May 6, 2024\n\nVia electronic mail\n\nVia electronic mail\nMs. Amelia Finch\nTechnical Advisor III\nIllinois State Police\nLegal Office\n801 South Seventh Street, Suite 1000- S\nSpringfield, Illinois 62703\nISP. FOIA. Officer@illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 76612\n\nDear\n\nand Ms. Finch: \n\nThis determination letter is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069, \neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\nthat the Illinois State Police (ISP) improperly required\nto fill out a form to\nobtain squad camera and body worn camera footage and improperly assessed fees to provide the\nfootage. This office further concludes that ISP did not improperly redact the audio recording\n\npertaining to a traffic stop.1 After extending the time to respond by five business days, on April\n21, 2023, ISP provided a responsive audio record subject to redactions under sections 7(1)(a), \n7(1)(b), and 7(1)(c) of FOIA.2 That same day, ISP informed\nresponsive to his request, but placed his request for the video recordings on hold because he is on\na waitlist. ISP also informed\nthat once his request came up on its waitlist, it would\nthat\nsend him a request form and require payment. On June 12, 2023, ISP informed\nit located video that may be responsive to his FOIA request, and that if he still wished to receive\nthe video recordings, consisting of a disk containing the recording from the squad camera and\nanother disk containing body worn camera footage, he was required to fill out a form and pay\nISP $ 100. 00 for each disk pursuant\nthe Administrative Code.3\nreviewed or redacted until after payment\ncontests the redactions of the audio recording and the denial of the video recording. \n\nto the fee schedule set forth in section 1298. 40 of title 20 of\n\nthat the video recordings would not be\n\nis received. In his Request for Review, \n\nthat it found video\n\nISP also informed\n\nAfter an Assistant Attorney General (AAG) in the Public Access Bureau's efforts\n\nto mediate this matter were unsuccessful, on July 12, 2023, this office forwarded a copy of\n\nRequest for Review to ISP and asked it to provide for our confidential review\nunredacted copies of the audio recording and the withheld squad camera footage and body worn\ncamera footage, along with a detailed written explanation of the factual and legal bases for\nredacting and withholding those records. This office also asked ISP to address the factual and\nlegal basis for requiring\ncamera and body worn camera recordings, and for requiring\nbefore providing the two video recordings. On July 21, 2023, ISP responded. \nreply. \n\nto fill out a standardized form to obtain the requested squad\n\nto pay ISP $ 200. 00\n\ndid not\n\nDETERMINATION\n\nIt is a fundamental obligation of government\n\nto operate openly and provide\n\npublic records as expediently and efficiently as possible in compliance with this Act.\" 5 ILCS\n140/ 1 (West 2022). Under section 1.2 of FOIA, 4 \"[ a] ll records in the custody or possession of a\npublic body are presumed to be open to inspection or copying.\" FOIA requires that \"[ e] ach\npublic body shall make available to any person for inspection or copying all public records, \n\nInformation Act Video Request Form (April 7, 2023). \n\n1E- mail from\n\nto Illinois State Police, on Illinois State Police Freedom of\n\n25 ILCS 140/7(1)(a), 1(b), 1(c) (West 2022). \n\n320 Ill. Adm. Code § 1298.40 (West 2022), last amended at 42 Ill. Reg. 19238, effective October\n\nexcept as otherwise provided in Sections 7 and 8.5 of this Act.\"5 FOIA shall be \" liberally\nconstrue[ d] * * * \ncitizen.\" Sage Information Services. v. Humm, 2012 IL App (5th) 110580, ¶ 19. \n\nin favor of ease of access to public records on the part of any interested\n\nThe Audio Recording\n\ncontested the redaction of the audio recording that ISP provided to\n\nhim. In its response, ISP explained that it had redacted one license plate number from the\nrecording pursuant to section 7(1)(b) of FOIA. Section 7(1)(b) of FOIA exempts from disclosure\np] rivate information, unless disclosure is required by another provision of this Act, a State or\nfederal law or a court order.\" Section 2(c-5) of FOIA6 defines \"private information\" as \" unique\nidentifiers, including a person's * * * home address and personal\nhas listened to the audio recording and concludes that the redacted license plate number is\nexempt under FOIA. Accordingly, ISP did not violate FOIA by redacting the license plate\nnumber in the audio clip. \n\nlicense plates[.]\" This office\n\nThe Squad Camera and Body Worn Camera Footage\n\nSection 3(d) of FOIA7 provides that \"[ e]ach public body shall, promptly, either\ncomply with or deny a request for public records within 5 business days after its receipt of the\nrequest, unless the time for response is properly extended under subsection (e) of this Section.\" \nSection 3(e) of FOIA8 provides that \"[ t]he time for response under this Section may be extended\nby the public body for not more than 5 business days from the original due date\" for any of seven\nenumerated reasons. FOIA permits an extension for more than five business days only if the\nrequester and the public body \"agree in writing to\" the extension. 5 ILCS 140/3(e) (West 2022). \nSection 3(f) of FOIA9 further provides: \n\nWhen additional\n\ntime is required [ under section 3(e)], the\n\npublic body shall, within 5 business days after receipt of the\nrequest, notify the person making the request of the reasons for the\nextension and the date by which the response will be forthcoming. \nFailure to respond within the time permitted for extension shall be\nconsidered a denial of the request. A public body that fails to\n\nrespond to a request within the time permitted for extension\nbut thereafter provides the requester with copies of the\nrequested public records may not impose a fee for those copies. \nEmphasis added.) \n\nAfter extending the time to respond to\n\nFOIA request, on April\n\n21, 2023, ISP sent correspondence to\ninforming him that it found responsive squad\ncar and body camera video but placed his request for the video recordings on hold because he is\nrequest for the squad car\non a waitlist. That correspondence neither complied with\nor body camera video by providing him the responsive records, nor properly denied his request\nfor those records. Instead, the correspondence amounted to an indefinite extension that is not\nauthorized by any provision of FOIA. \n\nISP's response to this office emphasized that it \"receives an average of 550 FOIA\n\nrequests each month. ISP does not maintain the resources to compile, review, redact and\nsubsequently produce every record responsive to every FOIA request in 10 business days. ISP\nsends requesters detailed communications to keep them apprised of the status of their request if it\nis not handled completely within the 10 days\" 10 The Public Access Bureau recognizes that\nresponding to large numbers of FOIA requests, especially for records such as recordings that\nmay be lengthy and require careful review for information that is subject to redaction under\nFOIA, may make substantial demands on a public body's resources. Nevertheless, section 1 of\nFOIA provides: \" The General Assembly declares that providing records in compliance with the\nrequirements of this Act is a primary duty of public bodies to the people of this State, and this\nAct should be construed to this end, fiscal obligations notwithstanding.\" More importantly, \nsection 3(f) of FOIA expressly precludes public bodies from assessing copies of fees for records\nif they fail to provide records within the time permitted for extensions under the Act. Because\nISP extended the time to respond to\nfailed to comply with the request, properly deny the request, or obtain\nconsent to a longer extension, this office concludes that FOIA does not permit ISP to charge\n\nrequest by five business days but subsequently\n\nwritten\n\nfees for copies of the video recordings. \n\nEven if ISP did issue a timely substantive response to\n\nrequest, FOIA\n\nprecludes ISP from charging $200.00 for the two video recordings. That charge derives from\nsection 1298. 40(c) of the Administrative Code, 11 which fixes a fee of $100 for each video\nrecording that is more than 160 megabytes. Section 6(a) of FOIA12 provides: \n\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau (July 21, 2023), at 3. \n\n10 Letter from Amelia Finch, Technical Advisor III, Office of the Director, Illinois State Police, to\n\n1120 Ill. Adm. Code § 1298.40(c) (West 2022), last amended at 42 Ill. Reg. 19238, effective\n\nWhen a person requests a copy of a record maintained\nin an electronic format, the public body shall furnish it in the\nelectronic format specified by the requester, if feasible. If it is\nnot feasible to furnish the public records in the specified electronic\nformat, then the public body shall furnish it in the format in which\nit is maintained by the public body, or in paper format at the option\nof the requester. A public body may charge the requester for the\nactual cost of purchasing the recording medium, whether disc, \ndiskette, tape, or other medium. * * * Except to the extent that\nthe General Assembly expressly provides, statutory fees\napplicable to copies of public records when furnished in a\npaper format shall not be applicable to those records when\nfurnished in an electronic format. (Emphasis added.) \n\nSection 6(b) of FOIA13 provides, in pertinent part: \n\nExcept when a fee is otherwise fixed by statute, each\n\npublic body may charge fees reasonably calculated to reimburse its\nactual cost for reproducing and certifying public records and for\nthe use, by any person, of the equipment of the public body to copy\nrecords. * * * In calculating its actual cost for reproducing records\nor for the use of the equipment of the public body to reproduce\nrecords, a public body shall not include the costs of any search for\nand review of the records or other personnel costs associated with\nreproducing the records, except for commercial requests as\nprovided in subsection (f) of this Section. \n\nBased upon these provisions, the Illinois Appellate Court held that \" FOIA does\nnot allow a fee in excess of the cost of the electronic medium for the reproduction of electronic\nrecords unless another statute expressly provides that the fees for producing paper records also\napply to electronic copies.\" (Emphasis added.) Sage Information Services, 2012 IL App (5th) \n110580, ¶ 18. In concluding that fees for an electronic copy of a real property assessment record\n\nW]e are guided by the expressed legislative intent and the public\npolicy sought to be effected by the FOIA. Section 1 of the FOIA\nstates that restraints on access to information are not to be\npermitted except as very limited exceptions and that the FOIA\nshould be construed in accordance with this principle. 5 ILCS\n140/ 1 (West 2010). A substantial\naccess to information in contravention of the expressed\nlegislative intent. Section 1 also makes clear that providing public\nrecords to citizens is a primary duty of public bodies and that the\nFOIA should be construed to this end, fiscal obligations\nnotwithstanding. 5 ILCS 140/1 (West 2010). It is our duty to\nliberally construe the FOIA in favor of ease of access to public\nrecords on the part of any interested citizen. We have done so here. \nEmphasis added.) \n\nfee constitutes a restraint on\n\nSee also Sage Information Services v. Suhr, 2014 IL App (2d) 130708, ¶ 20 (section 6(a) of\nFOIA is unambiguous and does not allow exceptions to the cost-only rule for electronic records\nunless fees fixed by another statute expressly state that they apply to other records). \n\nISP argues that it is allowed to charge fees for electronic video recordings based\n\non section 2605-10(b) of the Illinois State Police Law,14 which provides that ISP \" shall have the\npowers and duties set forth in the following Sections[,]\" and section 2605- 15 of the Illinois State\nPolice Law,15 which allows ISP \"[ t]o promulgate rules and regulations necessary for the\nadministration and enforcement of its powers and duties, wherever granted and imposed, \npursuant to the Illinois Administrative Procedure Act.\" ISP maintains that these statutes\nauthorize it to require individuals who submit a FOIA request to pay fees to obtain imaging\nproducts such as squad car and body camera videos, as set forth in sections 1298.10 through\n1298. 40 of title 20 of the Illinois Administrative Code. 16 According to ISP, \"[ i]f the General\nAssembly did not intend to grant ISP the authority to charge fees for imaging products via FOIA, \nit would have been clear in the Illinois State Police Law where such authority is granted.\" 17\n\nThe primary objective when construing the meaning of a statute is to ascertain\nand give effect to the intent of the General Assembly. DeLuna v. Burciaga, 223 Ill. 2d 49, 59\n\n1420 ILCS 2605/2605-10 (West 2022). \n\n1520 ILCS 2605/2605-15 (West 2022). \n\nReg. 19238, effective October 10, 2018. \n\n1620 Ill. Adm. Code §§ 1298.10, 1298.20, 1298.30, 1298.40 (West 2022), last amended at 42 Ill. \n\nEdie Steinberg, Senior Assistant Attorney General, Public Access Bureau (July 21, 2023), at 3. \n\n17 Letter from Amelia Finch, Technical Advisor III, Illinois State Police, Office of the Director, to\n\n2006). \"The most reliable indicator of legislative intent is the statutory language, given its plain\nand ordinary meaning.\" Gaffney v. Board of Trustees of Orland Fire Protection District, 2012\nIL 110012, ¶ 56. Where the language of a statute is clear and unambiguous, a reviewing body\nmay not depart from the plain language by reading into the statute exceptions, limitations, or\nconditions that the legislature did not express.\" Hayashi v. Illinois Department of Financial & \nProfessional Regulation, 2014 IL 116023, ¶ 16. \n\nSection 6(a) and 6(b) of FOIA plainly state that the fee provisions of FOIA apply\n\nto requests for public records unless a different fee is fixed by another statute and the General\nAssembly expressly states that the fee applies to electronic records. If the General Assembly had\nintended to authorize State agencies to use administrative rules as well as statutes to establish\nfees that supersede FOIA, it would have specifically referred to administrative rules as it has in\ncrafting provisions such as section 7(1)(a) of FOIA,18 which exempts from disclosure\n\ni]nformation specifically prohibited from disclosure by federal or State law or rules and\n\nregulations implementing federal or State law.\" To the extent that section 2605-15 of the Illinois\nState Police Law could be construed as conflicting with FOIA, it is a general grant of authority to\npromulgate rules and regulations that does not contain any reference to fees for public records. \nIn contrast, section 6(b) of FOIA specifically relates to such fees and therefore takes precedence. \nPeople v. Villarreal, 152 Ill. 2d 368, 379 (1992) (\" It is a fundamental rule of statutory\nconstruction that where there exists a general statutory provision and a specific statutory\nprovision, either in the same or another act, which both relate to the same subject, the specific\nprovision controls and should be applied.\"). \n\nCharging fees in excess of the cost of the recording medium for imaging products\n\npursuant to administrative rules cannot be reconciled with the plain language of FOIA and\nconstitutes a restraint on access to information that contradicts the intent of the Act. This office\nhas consistently determined, and has previously notified ISP, that FOIA does not permit it to\ncharge requesters fees based on a fee schedule in the Administrative Code. See Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 31244, issued February 21, 2018 (requesting ISP to reimburse a requester\nthe fee paid for a DVD); Ill. Att'y Gen. PAC Req. Rev. Ltr. 39015, issued January 6, 2016\ndetermining that ISP improperly charged a requester for a copy of a CD beyond the cost for the\nrecording medium); Ill. Att'y Gen. PAC Req. Rev. Ltr. 17989, issued February 5, 2014 (same). \nLikewise, in the present matter, this office concludes that ISP violated FOIA by improperly\ncharging\n200. 00 for the two recordings based on fees fixed by its administrative\nrule. \n\nIn addition, section 3(c) of FOIA (5 ILCS 140/3(c) (West 2022)) provides, in part, \n\nthat \"[ a] public body may not require that a request be submitted on a standard form[.]\" \n\n185 ILCS 140/7(1)(a) (West 2022), as amended by Public Acts 103-154, effective June 30, 2023; \n\n103-423, effective January 1, 2024; 103-462, effective August 4, 2023; 103-446, effective August 4, 2023; 103-540, \n\nAccordingly, ISP also violated FOIA by requiring\ncar and body camera videos. \n\nto fill out a form to obtain squad\n\nIn accordance with the conclusions set out above, this office requests that ISP\n\nwith copies of the squad car and body camera videos responsive to his FOIA\n\nprovide\nrequest, without charging fees or requiring a form to be filled out, subject only to permissible\nredactions under section 7 of FOIA if it has not done so already. If\nISP for the requested records, this office requests that ISP reimburse\npaid for the recordings. This office also requests that in the future ISP refrain from assessing\nfees beyond the cost of the recording medium for video recordings requested under FOIA. \n\nhas already paid\nfor all amounts\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This file is closed. If you have any questions, \nplease contact me at 312- 814- 5201 or at edie. steinberg@ilag. gov. \n\nVery truly yours, \n\nEDIE STEINBERG\nSenior Assistant Attorney General\nPublic Access Bureau\n\n76612 3c improper 6a improper 71b proper pd sa"}
{"id":1009,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-04-09","case_number":null,"request_numbers":["76890"],"title":"Village of Glenview did not violate FOIA in withholding pro forma document under 7(1)(r)","filename":"76890, issued April 9, 2024.pdf","rel_path":null,"word_count":2018,"summary":"The requester sought a pro forma financial document submitted by a private hospitality group to the Village of Glenview, and the PAC determined the Village properly withheld the record under FOIA's trade secret exemption.","plain_summary":"A requester asked the Village of Glenview for a pro forma document that Ballyhoo Hospitality had prepared in connection with a request for a 15-year loan repayment period. The Village denied the request, citing an exemption for records related to real estate sale negotiations. The Public Access Counselor concluded that the Village did not violate FOIA because the document related to a real estate sale that had not yet been completed, and the exemption applied regardless of the financial incentives involved.","holding":"The Village of Glenview did not violate FOIA by denying the request for the pro forma document pursuant to section 7(1)(r).","legal_question":"Whether the Village of Glenview properly applied the section 7(1)(r) exemption to withhold a pro forma financial document submitted by a private entity.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(r)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(r)"],"public_body":"Village of Glenview","requesting_party":"Mr. William J. Seitz","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(r)","subject_description":"The request concerned a financial pro forma document submitted by a private hospitality company to a municipality in connection with a loan repayment request.","ocr_status":"ok","ocr_quality":94.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_r/76890%2C%20issued%20April%209%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["trade secrets","financial records","exemption 7(1)(r)","Village of Glenview"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERA\n\nApril 9, 2024\n\nVia electronic mail\n\nMr. William J. Seitz\n\nThe Law Offices of William J. Seitz\n[street address redacted for site publication -- see original PDF]\nwseitz@seitzattorney.com\n\nVia electronic mail\n\nMs. Julie A. Tappendorf\n\nPartner\n\nAncel Glink\n\n140 South Dearborn Street, 6th Floor\nChicago, Illinois 60603\njtappendorf@ancelglink.com\n\nRE: FOIA Request for Review — 2023 PAC 76890\n\nDear Mr. Seitz and Ms. Tappendorf:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069,\neffective January 1, 2024). For the reasons stated below, the Public Access Counselor concludes\nthat the Village of Glenview (Village) did not improperly deny Mr. William J. Seitz's March 21,\n\n2023, FOIA request.\n\nOn that date, Mr. Seitz submitted a FOIA request to the Village seeking a copy of\n\"[t]he Proforma developed by Ballyhoo Hospitality in requesting a 15-year loan repayment\nperiod from the Village.\"! On April 4, 2023, the Village denied the request in its entirety\n\n‘Written Request for Inspection or Copying of Public Records from William J. Seitz to Village of\n\nGlenview (March 21, 2023).\n\n500 South 2nd Street 115 South LaSalle Street\nSpringfield, Illinois 62701 Chicago, Hlinois 60603\n(217) 782-1090 + Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service\n\nwww IllinoisAttomeyGeneral.gov\n\n1745 Innovation Dnve, Suite C\nCarbondale, Illinois 62903\n(618) 529-6400 + Fax: (618) 529-6416\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 2\n\npursuant to section 7(1)(r) of FOIA.2 On June 2, 2023, Mr. Seitz submitted a Request for\nReview contesting the denial of the request. He explained that \"[t]his FOIA Request for Review\nrelates to a 'Purchase and Sale Agreement' between the Village of Glenview and Ballyhoo\nHospitality, LLC. (‘Ballyhoo'), in which the Village would sell 6,000 square feet of land owned\nby the Village of Glenview to Ballyhoo for $10.\"3 Mr. Seitz claimed:\n\nThis is clearly not a market value price.\n\nThis FOIA relates to other commitments of public money\ninto this private project.\n\nThat is because the Village is not simply selling the land\nfor $10 (purchase price of $210,000 being reduced to $10 at\nClosing).\n\nAttaching a \"Redevelopment Agreement\", as an exhibit to a\n\"Purchase and Sale Agreement\" to sell the real estate, the Village\nis giving Ballyhoo a \"Restaurant Grant\" of 1,750,000 and a\n\"Restaurant Loan\" of $2,250,000 @ 2% over 15 years.\n\nThat is $4,000,000 of public money that is beyond the sale\nof the property. (Emphasis in original.)@]\n\nMr. Seitz thus argued that section 7(1)(r) did not apply because \"[t]he exemption relates to ‘real\nestate sale negotiations’. This is a loan and a grant, not a real estate sale for $10.\" (Emphasis in\noriginal.)° He also argued that the pro forma cannot be withheld because it was already\ndisclosed to a third-party consultant—Mallon and Associates, Inc. (Mallon)—whose \"public\ncontract does not include real estate negotiations.\"®\n\n25 ILCS 140/7(1)(x) (West 2022).\n\nLetter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 2.\n\n4Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attomey General (June 2, 2023), at 2.\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 4.\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 4.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 3\n\nOn June 8, 2023, the Public Access Bureau forwarded a copy of the Request for\nReview to the Village and requested an unredacted copy of the withheld record for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of section 7(1)(r). As part of its response, this office asked the Village to address\nthe allegations that the matter concerns a loan rather than a sale and that the Village waived the\nexemption by disclosing the record to one or more other third parties that were not acting as\nconsultants with respect to any real estate purchase negotiations. On June 19, 2023, the Village\nprovided those materials, including a complete version of its written answer for this office's\nconfidential review, anda version with its entire argument redacted for purposes of forwarding\nto Mr. Seitz. On June 30, 2023, Mr. Seitz replied to that response.\n\nDETERMINATION\n\nUnder FOIA, all public records in the possession or custody of a public body are\n\"presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern\nIllinoisan vy. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body\n\"has the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2022).\n\nSection 7(1)(r) exempts from disclosure:\n\nThe records, documents, and information relating to real\nestate purchase negotiations until those negotiations have been\ncompleted or otherwise terminated. With regard to a parcel\ninvolved in a pending or actually and reasonably contemplated\neminent domain proceeding under the Eminent Domain Act,\nrecords, documents, and information relating to that parcel shall be\nexempt except as may be allowed under discovery rules adopted by\nthe Illinois Supreme Court. The records, documents and\ninformation relating to a real estate sale shall be exempt until a\nsale is consummated. (Emphasis added.)\n\nIn response to Mr. Seitz's Request for Review, the Village defended its denial\nunder section 7(1)(r) of FOIA. The Village noted that Mr. Seitz did not dispute that the sale had\nnot been completed, and stated that it \"only withheld the Proforma because it is clearly exempt\nfrom disclosure under section 7(1)(r) of FOIA as a record or document that related to a real\nestate sale that has not yet closed.\"’ Because the remainder of the Village's explanation was\nsubmitted under a claim of confidentiality, however, this office is not at liberty reveal the\nVillage's other substantive claims.\n\n‘Letter from Julie A. Tappendorf, Ancel Glink, to Joshua Jones, Assistant Attorney General\nPublic Access Bureau (June 19, 2023), at 3.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 4\n\nIn his reply, Mr. Seitz reiterated his assertions that section 7(1)(r) is inapplicable\nbecause his request does not concern an actual real estate sale:\n\nWhat the Village is characterizing as being a \"Purchase and\nSale Agreement\" is really a $4 million upfront public contribution\nbeing made to a private investment on public land. $1.75M\neconomic development grant and $2.25M loan to be paid back at\n2% interest over 15 years.\n\nThe real estate sale contemplated here is fora sale price of\n$10, clearly not a market transaction.\n\nEconomic development activities, not the sale of public real\nestate, are the records, documents, or information that the Village\nis seeking to shield from public access. (Emphasis in original.)!*!\n\nThis office's review of the withheld record confirmed that it is a record relating to\na real estate sale that had not been consummated. It is undisputed that the pro forma was\ngenerated pursuant to Village considerations concerning the sale of the land and potential\neconomic incentives. Although Mr. Seitz highlighted that $10 is not the market value price of\nthe land, the plain language of section 7(1)(r) is not limited to market value sales. In drafting\nsection 7(1)(r), the General Assembly did not distinguish records, documents, and information\nconcerning pure sales of public property at market prices from sales of public property that are\nstructured with financial incentives in excess of the purchase price component. \"It is well settled\nthat a court\"—and therefore a reviewing body such as the Public Access Bureau—\"may not\ndepart from the plain language of a statute by reading into it exceptions, limitations, or\nconditions that the legislature did not express.\" Gurba v. Community High School District No.\n155,2015 IL 118332,4 16. Accordingly, this office cannot overlook the real estate sale aspect\nof the Purchase and Sale Agreement Mr. Seitz furnished to this office, which provides, in\nrelevant part: \"The purchase price for the Property shall be Two Hundred Ten Thousand and\nNo/100 ($210,000.00) Dollars (‘Purchase Price'), as adjusted by the Purchase Price Incentive *\n* * Purchaser shall pay the Purchase Price, if any, in full at Closing * * * by transfer of\nimmediately available funds, and subject to adjustments and proration as described in this\nAgreement.\" (Emphasis in original.)? Correspondingly, the \"Redevelopment Agreement Terms\"\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Joshua Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General (June 30, 2023), at 4.\n\n°*Purchaseand Sale Agreement, Ballyhoo Hospitality, LLC — Village of Glenview, §3, March 21,\n2023.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\n\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 5\n\nexhibit states that the \"[s]eller will reduce the Purchase Price from $210,000.00 to $10 at closing\n(‘Purchase Price Incentive').\"!° Mr. Seitz has not cited legal authority for the proposition that\nthe language \"real estate sale,\" as used in section 7(1)(m), does not apply when the price ofa real\nestate transaction is offset by financial incentives. Regardless of what else it entails, the\nPurchase and Sale Agreement concerns the Village's prospective sale of real estate to a\npurchaser, and thus the pro forma falls within the scope of section 7(1)(r).\n\nThe evidence does not suggest that the Village waived the applicability of the\nexemption by sharing the pro forma with Mallon. Ina previous Request for Review (2023 PAC\n75181), Mr. Seitz provided this office with a copy of the Village's consulting contract with\nMallon, in which Mallon agreed to perform \"professional development advisory and business\nrecruiting services and work for Village.\"!! It is evident that the Village shared the pro forma\nwith Mallon in Mallon's capacity as downtown economic development consultant for the\nVillage. The Village's sharing of a downtown economic development record such as the pro\nforma with Mallon does not waive the applicability of section 7(1)(r) because FOIA's waiver\nprinciple protects against giving preferential treatment to some similarly situated-parties over\nothers, not sharing information with a consultant serving the public body's interests. See Lieber\nv. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 412-13 (1997) (\"If the\naddress lists can be disclosed to campus ministries and the local newspaper, the University has\nno valid basis for withholding them from\" the requester, a campus housing provider); see also\nChicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 201-03\n(2004) (disclosure of names and addresses of beat meeting participants to a professor at a public\npolicy research organization for a study on community policing did not waive the applicable\nexemptions as to all other parties because the information was provided in confidence for\nconsulting purposes).\n\nFor the reasons explained above, the Public Access Bureau concludes that the\nVillage did not violate FOIA by denying Mr. Seitz's FOIA request pursuant to the section 7(1)(r)\nexemption.\n\n'Purchaseand Sale Agreement, Ballyhoo Hospitality, LLC — Village of Glenview, Exhibit B:\nRedevelopment Agreement Terms, March 21, 2023.\n\n\"'Independent Contractor Agreement for Professional and Other Services, Village of Glenview —\nMallon and Associates, Inc., June 15,2022.\n\nOffice of the Illinois Attorney General\n\nMr. William J. Seitz\nMs. Julie A. Tappendorf\nApril 9, 2024\n\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at joshua.jones@ilag.gov or (773) 590-7951.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n76890 f 711 proper mun\n\nOffice of the Illinois Attorney General\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A private hospitality company's financial pro forma","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76890/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERA\n\nApril 9, 2024\n\nVia electronic mail\n\nMr. William J. Seitz\n\nThe Law Offices of William J. Seitz\n[street address redacted for site publication -- see original PDF]\nwseitz@seitzattorney.com\n\nVia electronic mail\n\nMs. Julie A. Tappendorf\n\nPartner\n\nAncel Glink\n\n140 South Dearborn Street, 6th Floor\nChicago, Illinois 60603\njtappendorf@ancelglink.com\n\nRE: FOIA Request for Review — 2023 PAC 76890\n\nDear Mr. Seitz and Ms. Tappendorf:\n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069,\neffective January 1, 2024). For the reasons stated below, the Public Access Counselor concludes\nthat the Village of Glenview (Village) did not improperly deny Mr. William J. Seitz's March 21,\n\n2023, FOIA request.\n\nOn that date, Mr. Seitz submitted a FOIA request to the Village seeking a copy of\n\"[t]he Proforma developed by Ballyhoo Hospitality in requesting a 15-year loan repayment\nperiod from the Village.\"! On April 4, 2023, the Village denied the request in its entirety\n\n‘Written Request for Inspection or Copying of Public Records from William J. Seitz to Village of\n\nGlenview (March 21, 2023).\n\n500 South 2nd Street 115 South LaSalle Street\nSpringfield, Illinois 62701 Chicago, Hlinois 60603\n(217) 782-1090 + Fax: (217) 782-7046 (312) 814-3000 « Fax: (312) 814-3806\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service\n\npursuant to section 7(1)(r) of FOIA.2 On June 2, 2023, Mr. Seitz submitted a Request for\nReview contesting the denial of the request. He explained that \"[t]his FOIA Request for Review\nrelates to a 'Purchase and Sale Agreement' between the Village of Glenview and Ballyhoo\nHospitality, LLC. (‘Ballyhoo'), in which the Village would sell 6,000 square feet of land owned\nby the Village of Glenview to Ballyhoo for $10.\"3 Mr. Seitz claimed:\n\nThis is clearly not a market value price.\n\nThis FOIA relates to other commitments of public money\ninto this private project.\n\nThat is because the Village is not simply selling the land\nfor $10 (purchase price of $210,000 being reduced to $10 at\nClosing).\n\nAttaching a \"Redevelopment Agreement\", as an exhibit to a\n\"Purchase and Sale Agreement\" to sell the real estate, the Village\nis giving Ballyhoo a \"Restaurant Grant\" of 1,750,000 and a\n\"Restaurant Loan\" of $2,250,000 @ 2% over 15 years.\n\nThat is $4,000,000 of public money that is beyond the sale\nof the property. (Emphasis in original.)@]\n\nMr. Seitz thus argued that section 7(1)(r) did not apply because \"[t]he exemption relates to ‘real\nestate sale negotiations’. This is a loan and a grant, not a real estate sale for $10.\" (Emphasis in\noriginal.)° He also argued that the pro forma cannot be withheld because it was already\ndisclosed to a third-party consultant—Mallon and Associates, Inc. (Mallon)—whose \"public\ncontract does not include real estate negotiations.\"®\n\n25 ILCS 140/7(1)(x) (West 2022).\n\nLetter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 2.\n\n4 Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attomey General (June 2, 2023), at 2.\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\nAccess Counselor, Office of the Attorney General (June 2, 2023), at 4.\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Leah Bartelt, Public\n\nOn June 8, 2023, the Public Access Bureau forwarded a copy of the Request for\nReview to the Village and requested an unredacted copy of the withheld record for this office's\nconfidential review, together with a detailed explanation of the legal and factual bases for the\napplicability of section 7(1)(r). As part of its response, this office asked the Village to address\nthe allegations that the matter concerns a loan rather than a sale and that the Village waived the\nexemption by disclosing the record to one or more other third parties that were not acting as\nconsultants with respect to any real estate purchase negotiations. On June 19, 2023, the Village\nprovided those materials, including a complete version of its written answer for this office's\nconfidential review, anda version with its entire argument redacted for purposes of forwarding\nto Mr. Seitz. On June 30, 2023, Mr. Seitz replied to that response.\n\nDETERMINATION\n\nUnder FOIA, all public records in the possession or custody of a public body are\n\"presumed to be open to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern\nIllinoisan vy. Illinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body\n\"has the burden of proving by clear and convincing evidence\" that a record is exempt from\ndisclosure. 5 ILCS 140/1.2 (West 2022).\n\nSection 7(1)(r) exempts from disclosure:\n\nThe records, documents, and information relating to real\nestate purchase negotiations until those negotiations have been\ncompleted or otherwise terminated. With regard to a parcel\ninvolved in a pending or actually and reasonably contemplated\neminent domain proceeding under the Eminent Domain Act,\nrecords, documents, and information relating to that parcel shall be\nexempt except as may be allowed under discovery rules adopted by\nthe Illinois Supreme Court. The records, documents and\ninformation relating to a real estate sale shall be exempt until a\nsale is consummated. (Emphasis added.)\n\nIn response to Mr. Seitz's Request for Review, the Village defended its denial\nunder section 7(1)(r) of FOIA. The Village noted that Mr. Seitz did not dispute that the sale had\nnot been completed, and stated that it \"only withheld the Proforma because it is clearly exempt\nfrom disclosure under section 7(1)(r) of FOIA as a record or document that related to a real\nestate sale that has not yet closed.\"’ Because the remainder of the Village's explanation was\nsubmitted under a claim of confidentiality, however, this office is not at liberty reveal the\n\nIn his reply, Mr. Seitz reiterated his assertions that section 7(1)(r) is inapplicable\nbecause his request does not concern an actual real estate sale:\n\nWhat the Village is characterizing as being a \"Purchase and\nSale Agreement\" is really a $4 million upfront public contribution\nbeing made to a private investment on public land. $1.75M\neconomic development grant and $2.25M loan to be paid back at\n2% interest over 15 years.\n\nThe real estate sale contemplated here is fora sale price of\n$10, clearly not a market transaction.\n\nEconomic development activities, not the sale of public real\nestate, are the records, documents, or information that the Village\nis seeking to shield from public access. (Emphasis in original.)!*!\n\nThis office's review of the withheld record confirmed that it is a record relating to\na real estate sale that had not been consummated. It is undisputed that the pro forma was\ngenerated pursuant to Village considerations concerning the sale of the land and potential\neconomic incentives. Although Mr. Seitz highlighted that $10 is not the market value price of\nthe land, the plain language of section 7(1)(r) is not limited to market value sales. In drafting\nsection 7(1)(r), the General Assembly did not distinguish records, documents, and information\nconcerning pure sales of public property at market prices from sales of public property that are\nstructured with financial incentives in excess of the purchase price component. \"It is well settled\nthat a court\"—and therefore a reviewing body such as the Public Access Bureau—\"may not\ndepart from the plain language of a statute by reading into it exceptions, limitations, or\nconditions that the legislature did not express.\" Gurba v. Community High School District No.\n155,2015 IL 118332,4 16. Accordingly, this office cannot overlook the real estate sale aspect\nof the Purchase and Sale Agreement Mr. Seitz furnished to this office, which provides, in\nrelevant part: \"The purchase price for the Property shall be Two Hundred Ten Thousand and\nNo/100 ($210,000.00) Dollars (‘Purchase Price'), as adjusted by the Purchase Price Incentive *\n* * Purchaser shall pay the Purchase Price, if any, in full at Closing * * * by transfer of\nimmediately available funds, and subject to adjustments and proration as described in this\nAgreement.\" (Emphasis in original.)? Correspondingly, the \"Redevelopment Agreement Terms\"\n\n‘Letter from William J. Seitz, The Law Offices of William J. Seitz, LLC, to Joshua Jones, Deputy\nBureau Chief, Public Access Bureau, Office of the Attorney General (June 30, 2023), at 4.\n\n°*Purchaseand Sale Agreement, Ballyhoo Hospitality, LLC — Village of Glenview, §3, March 21,\n\nexhibit states that the \"[s]eller will reduce the Purchase Price from $210,000.00 to $10 at closing\n(‘Purchase Price Incentive').\"!° Mr. Seitz has not cited legal authority for the proposition that\nthe language \"real estate sale,\" as used in section 7(1)(m), does not apply when the price ofa real\nestate transaction is offset by financial incentives. Regardless of what else it entails, the\nPurchase and Sale Agreement concerns the Village's prospective sale of real estate to a\npurchaser, and thus the pro forma falls within the scope of section 7(1)(r).\n\nThe evidence does not suggest that the Village waived the applicability of the\nexemption by sharing the pro forma with Mallon. Ina previous Request for Review (2023 PAC\n75181), Mr. Seitz provided this office with a copy of the Village's consulting contract with\nMallon, in which Mallon agreed to perform \"professional development advisory and business\nrecruiting services and work for Village.\"!! It is evident that the Village shared the pro forma\nwith Mallon in Mallon's capacity as downtown economic development consultant for the\nVillage. The Village's sharing of a downtown economic development record such as the pro\nforma with Mallon does not waive the applicability of section 7(1)(r) because FOIA's waiver\nprinciple protects against giving preferential treatment to some similarly situated-parties over\nothers, not sharing information with a consultant serving the public body's interests. See Lieber\nv. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, 412-13 (1997) (\"If the\naddress lists can be disclosed to campus ministries and the local newspaper, the University has\nno valid basis for withholding them from\" the requester, a campus housing provider); see also\nChicago Alliance for Neighborhood Safety v. City of Chicago, 348 Ill. App. 3d 188, 201-03\n(2004) (disclosure of names and addresses of beat meeting participants to a professor at a public\npolicy research organization for a study on community policing did not waive the applicable\nexemptions as to all other parties because the information was provided in confidence for\nconsulting purposes).\n\nFor the reasons explained above, the Public Access Bureau concludes that the\nVillage did not violate FOIA by denying Mr. Seitz's FOIA request pursuant to the section 7(1)(r)\nexemption.\n\n'Purchaseand Sale Agreement, Ballyhoo Hospitality, LLC — Village of Glenview, Exhibit B:\nRedevelopment Agreement Terms, March 21, 2023.\n\n\"'Independent Contractor Agreement for Professional and Other Services, Village of Glenview —\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This file is closed. If you have any questions,\nplease contact me at joshua.jones@ilag.gov or (773) 590-7951.\n\nVery truly yours,\n\nJOSHUA M. JONES\nDeputy Bureau Chief\nPublic Access Bureau\n\n76890 f 711 proper mun\n\nOffice of the Illinois Attorney General"}
{"id":1010,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-03","case_number":null,"request_numbers":["76927"],"title":"PAC closes case after requester filed FOIA complaint against City of Chicago too early","filename":"76927, issued July 3, 2023.pdf","rel_path":null,"word_count":642,"summary":"The requester alleged the City of Chicago Mayor's Office failed to timely respond to a FOIA request, but the PAC determined the request for review was filed prematurely because the City's response deadline had not yet passed.","plain_summary":"A requester complained to the Attorney General that the City of Chicago was late in responding to a FOIA request. The Attorney General found that the City had correctly calculated its legal deadline, including a holiday, and that the requester had filed the complaint too early. Because the City still had time to respond when the complaint was filed, the PAC closed the case without taking further action.","holding":"The PAC determined that no further action is warranted because the requester filed the Request for Review before the public body's statutory deadline to respond had expired.","legal_question":"Whether a public body's response to a FOIA request was untimely under 5 ILCS 140/3(d) and (e) when the requester filed a Request for Review before the statutory response deadline had passed.","disposition":"closed_no_further_action","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Office of the Mayor","requesting_party":null,"pac_outcome":"Closed - premature filing","pac_law_type":null,"subject_category":"FOIA response deadline","subject_description":"The request sought records concerning the removal of homeless individuals from O'Hare Airport.","ocr_status":"ok","ocr_quality":92.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/9.5/9.5_a/Request-Denied/76927%2C%20issued%20July%203%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["FOIA deadline","response time","premature request","business days"],"truncated_suspect":0,"site_category":"FOIA Response Process","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 3, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE:   FOIA Request for Review –  2023 PAC 76927\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)).  For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn May 28,  2023,  you submitted a FOIA request to the City of Chicago Office of\nthe Mayor (Mayor's Office) seeking records related to the removal of homeless individuals from\nO'Hare Airport.   On June 6, 2023,  the Mayor' s Office extended its time to respond to your\nrequest by five business days pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) ( West 2020)).  \nOn June 13, 2023,  you submitted a Request for Review alleging that the Mayor' s Office\nbelatedly requested an extension and had not otherwise responded to your FOIA request. \n\nUnder section 9.5(a) of FOIA (5 ILCS 140/9.5(a) ( West 2020)), only \"[ a]  person\n\nwhose request to inspect or copy a public record is denied by a public body * * *  may file a\nrequest for review with the Public Access Counselor * * *  not later than 60 days after the date\nof the final denial.\" ( Emphasis added.)   Section 3(d) of FOIA ( 5 ILCS 140/ 3(d) ( West 2020)) \nprovides that \"[ e]ach public body shall, promptly, either comply with or deny a request for public\nrecords within 5 business days after its receipt of the request,  unless the time for response is\nproperly extended under subsection (e) of this Section.\"  ( Emphasis added.)  Section 3(e) of\nFOIA ( 5 ILCS 140/ 3(e) ( West 2020))  permits a public body to extend the time for responding to\na request by five business days under certain enumerated circumstances.  \"[ T] he plain language\nof FOIA gives a public body in receipt of a records request the unilateral ability to extend its own\nresponse deadline by five days.\"   Sargent Shriver National Center on Poverty Law,  Inc. v. The\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fJuly 3, 2023\nPage 2\n\nBoard of Education of the City of Chicago, 2018 IL App (1st) 171846, ¶25, 122 N.E.3d 729, 735\n2018). \n\nYou submitted your FOIA request on May 28,  2023,  which was a Sunday.   The\nnext day, May 29, 2023, was the Memorial Day holiday, and the Mayor's Office was closed.1\nThus,  the City received your request on May 30, 2023,  which set the fifth business day after\nreceipt to June 6, 2023.  The Mayor's Office properly extended its time to respond to your\nrequest by five business days on June 6, 2023.   Following this extension,  the Mayor' s Office was\nrequired to respond by the end of the day on June 13, 2023.  Because you submitted your\nRequest for Review on the morning of June 13,  2023,  this Request for Review is premature.  \nAccordingly, we have determined that no further inquiry is warranted. \n\nThis letter closes this file.  If you have any questions, please contact me at\n\nbenjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J.  SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n76927 f no fi war mun\n\ncc: \n\nVia electronic mail\nMr. Tom Skelton\nFOIA Officer\nOffice of the Mayor\nCity of Chicago\n121 North LaSalle Street,  Suite 500\nChicago, Illinois 60601\nthomas. skelton@cityofchicago. org\n\nhttps://www.chicago.gov/city/en/narr/misc/city-holidays.html (last visited June 30, 2023). \n\n1See City Holidays (Offices Closed), City of Chicago, available at\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records on removal of homeless individuals from O'Hare Airport","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76927/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nJuly 3, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nRE: FOIA Request for Review – 2023 PAC 76927\n\nDear\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2020)). For the reasons set forth below, the\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn May 28, 2023, you submitted a FOIA request to the City of Chicago Office of\nthe Mayor (Mayor's Office) seeking records related to the removal of homeless individuals from\nO'Hare Airport. On June 6, 2023, the Mayor's Office extended its time to respond to your\nrequest by five business days pursuant to section 3(e) of FOIA (5 ILCS 140/3(e) (West 2020)). \nOn June 13, 2023, you submitted a Request for Review alleging that the Mayor's Office\nbelatedly requested an extension and had not otherwise responded to your FOIA request. \n\nUnder section 9.5(a) of FOIA (5 ILCS 140/9.5(a) (West 2020)), only \"[ a] person\n\nwhose request to inspect or copy a public record is denied by a public body * * * may file a\nrequest for review with the Public Access Counselor * * * not later than 60 days after the date\nof the final denial.\" (Emphasis added.) Section 3(d) of FOIA (5 ILCS 140/ 3(d) (West 2020)) \nprovides that \"[ e]ach public body shall, promptly, either comply with or deny a request for public\nrecords within 5 business days after its receipt of the request, unless the time for response is\nproperly extended under subsection (e) of this Section.\" (Emphasis added.) Section 3(e) of\nFOIA (5 ILCS 140/ 3(e) (West 2020)) permits a public body to extend the time for responding to\na request by five business days under certain enumerated circumstances. \"[ T] he plain language\nof FOIA gives a public body in receipt of a records request the unilateral ability to extend its own\nresponse deadline by five days.\" Sargent Shriver National Center on Poverty Law, Inc. v. The\n\nBoard of Education of the City of Chicago, 2018 IL App (1st) 171846, ¶25, 122 N.E.3d 729, 735\n2018). \n\nYou submitted your FOIA request on May 28, 2023, which was a Sunday. The\nnext day, May 29, 2023, was the Memorial Day holiday, and the Mayor's Office was closed.1\nThus, the City received your request on May 30, 2023, which set the fifth business day after\nreceipt to June 6, 2023. The Mayor's Office properly extended its time to respond to your\nrequest by five business days on June 6, 2023. Following this extension, the Mayor's Office was\nrequired to respond by the end of the day on June 13, 2023. Because you submitted your\nRequest for Review on the morning of June 13, 2023, this Request for Review is premature. \nAccordingly, we have determined that no further inquiry is warranted. \n\nThis letter closes this file. If you have any questions, please contact me at\n\nbenjamin. silver@ilag. gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n76927 f no fi war mun\n\ncc: \n\nVia electronic mail\nMr. Tom Skelton\nFOIA Officer\nOffice of the Mayor\nCity of Chicago\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60601\nthomas. skelton@cityofchicago. org\n\nhttps://www.chicago.gov/city/en/narr/misc/city-holidays.html (last visited June 30, 2023). \n\n1 See City Holidays (Offices Closed), City of Chicago, available at"}
{"id":1011,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-02-13","case_number":null,"request_numbers":["76974"],"title":"Cook County Pension Fund properly applied 7(1)(f) to redact Real Estate Strategic Plan","filename":"76974, issued February 13, 2024.pdf","rel_path":null,"word_count":2726,"summary":"The requester sought records from the Cook County Pension Fund, which redacted portions of a Real Estate Strategic Plan. The PAC determined that the Fund's redactions under section 7(1)(f) were appropriate.","plain_summary":"A reporter requested documents from the Cook County Pension Fund, but the Fund blacked out certain parts of a real estate plan. The Attorney General's office reviewed the request and decided the Fund was legally allowed to keep those parts private. This means the requester will not receive the redacted information.","holding":"The Cook County Pension Fund did not improperly redact the requested records.","legal_question":"Whether the Cook County Pension Fund properly applied the section 7(1)(f) exemption to redact portions of a Real Estate Strategic Plan.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(f)"],"public_body":"Cook County Pension Fund","requesting_party":"Mr. Gar Chung (Financial Investment News)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"exemption 7(1)(f)","subject_description":"The request concerned the disclosure of a Real Estate Strategic Plan and the propriety of redactions made by the pension fund.","ocr_status":"ok","ocr_quality":96.9,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_f/Communications-with-third-parties/Consultants-for-public-body/76974%2C%20issued%20February%2013%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["pension fund","redaction","real estate plan","preliminary draft"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAI\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 13, 2024\n\nVia electronic mail\n\nMr. Gar Chung\n\nFinancial Investment News\n\n15 West 26th Street, 4th Floor\nNew York, New York 10010\ngchung@fin-news.com\n\nVia electronic mail\n\nMs. Margaret M. Fahrenbach\n\nLegal Advisor\n\nCook County Pension Fund\n\n[street address redacted for site publication -- see original PDF]\nmfahrenbach@countypension.com\n\nRE: FOIA Request for Review — 2023 PAC 76974\n\nDear Mr. Chung and Ms. Fahrenbach:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069,\neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\n\n1745 Innovation Drive, Suite C\nCarbondale, Ilinois 62903\n\n$00 South 2nd Street 115 South LaSalle Street\nSpringfield, [linois 62701 Chicago, Illinois 60603\n(217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 + Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service\n\nwww IllinoisAttomeyGeneral. gov\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 2\n\nthat the Cook County Pension Fund (Fund) did not improperly redact certain portions of a record\nresponsive to Mr. Gar Chung's May 25, 2023, FOIA request.\n\nOn that date, Mr. Chung submitted a FOIA request to the Fund on behalf of\nFinancial Investment News seeking electronic copies of six records. On June 16, 2023, the Fund\nprovided Mr. Chung with redacted copies of certain records and stated that some unidentified\nrecords were exempt or not subject to disclosure pursuant to sections 7(1)(f) and 7(1)(g) of\nFOIA.! On June 26, 2023, Mr. Chung submitted the above-referenced Request for Review\ndisputing the Fund's denial of his request. On June 27, 2023, in e-mail correspondence with an\nAssistant Attorney General (AAG) from the Public Access Bureau, Mr. Chung clarified that he\nwas seeking review of only the Real Estate Strategic Plan from the May 23, 2023, Investment\nCommittee meeting. Mr. Chung contended:\n\nI requested an investment report from the fund's consultant\nCallan that was presented and discussed in an open forum, in this\ncase at their investment committee meeting in May.\n\nThe report I received was heavily redacted, and fund\nexplained that it was \"because they contain recommendations in\nwhich opinions were expressed regarding action that might be\nconsidered.\"\n\nI believe they are wrong since this report was openly and\npublicly discussed at their meeting that was open to the public.!?!\n\nOn that same date, this office sent a copy of the Request for Review to the Fund\nand asked for an unredacted copy of the Real Estate Strategic Plan for our confidential review,\ntogether with a detailed explanation of the factual and legal bases for the applicability of the\nasserted exemptions. This office also asked the Fund to address the extent to which the record\nwas publicly cited and identified by the head of the public body at a meeting.\n\nOn July 7, 2023, the Fund provided this office with an unredacted copy of the\nReal Estate Strategic Plan and its written response. On July 10, 2023, this office forwarded a\ncopy of the Fund's written response to Mr. Chung; he submitted a reply that same morning. On\nAugust 25, 2023, the Fund provided the AAG with a copy of the approved meeting minutes for\nthe Investment Committee's May 23, 2023, meeting.\n\n15 ILCS 140/7(1)(£), (1)(g) (West 2022).\n\nE-mail from Gar Chung, Financial Investment News, to Public Access Counselor (June 16,\n2023).\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 3\n\nDETERMINATION\n\n\"All public records in the custody or possession of a public body are presumed to\nbe open to inspection and copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that asserts\nthat a record is exempt from disclosure \"has the burden of proving by clear and convincing\nevidence\" that a record is exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The\nexemptions from disclosure are to be narrowly construed. See Lieber v. Board of Trustees of\nSouthern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nIn its response to this office, the Fund asserted that the records were exempt\npursuant to section 7(1)(f) of FOIA only. Section 7(1)(f) exempts from disclosure \"[p]reliminary\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed,\nor policies or actions are formulated, except that a specific record or relevant portion of a record\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" The section 7(1)(f) exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood v. McDonough, 344 Ill. App. 3d 242, 248 (2003). Section 7(1)(f) can apply to\nconsultant reports when the consultant represents the interest of the public body, rather than any\ninterest of its own. Harwood, 344 Ill. App. 3d at 248.\n\nIn its response to this office, the Fund maintained that its partial denial was proper\nbecause:\n\nThe Record was prepared by Callan, LLC, the Fund's\nInvestment Consultant, and was made available to the trustees at\nthe time of the Investment Committee meeting on May 23, 2023.\nThe information redacted from the Record were recommendations\nand opinions from the Investment Consultant to the trustees\nregarding possible real estate investments and strategies, which are\nexempt from disclosure pursuant to Section 7(1)(f) of the Act, 5\nILCS 140/7(1)(f). Upon review of the redacted materials, the Fund\nagrees that objections to certain redactions made on page 17 and\npages 19-20 are valid because the Investment Committee discussed\nthe proposed commitments for 2023 and recommended that the\nRetirement Board adopt some of the recommendations made by\nthe Investment Consultant. The Fund has provided alternative\nredactions for page 17 and pages 19-20 as Exhibit A to this\nresponse.\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 4\n\nOtherwise, the Investment Committee did not discuss or\ntake any action regarding the recommendations made in the\nRecord during the meeting. The Executive Director of the Fund,\nMr. Brent Lewandowski is the head of the public body and he has\nnot publicly cited or identified the Record.!°!\n\nIn reply, Mr. Chung argued that \"the investment committee did discuss the\nrecommendation in open session, and therefore the document shouldn't be redacted.\"*\n\nThe approved minutes from the Investment Committee meeting held on May 23,\n2023, state, in relevant part, as follows:\n\n2. Real Estate Strategic Plan and Performance Review\n\nMs. Barbara Bernard of Callan LLC stated that, in general,\nreal estate investments had negative appreciation values and that\ninterest rates were up. The office property segment of this asset\nclass was particularly challenged. She presented a summary of the\nallocations for the County Fund's real estate portfolio and the\ninvestment positions as of December 31, 2022, for Core, Non-Core\nand REIT investments. The total real estate portfolio exceeds the\n9% target for this asset class, but is within the policy range. The\nportfolio is in line with the stated limits for Core, Non-Core and\nREIT investment target allocations. The Core investments and\nnon-Core investments out-performed their benchmarks over the\ntrailing one, three, five and ten years. The REITs collectively\nunderperformed the benchmark by -280 basis points in the last\nyear, but out-performed the benchmark across the three year period\nby 73 basis points and outperformed the benchmark for the five\nyear period by 50 basis points. It was discussed that the REITS\ncould be used as a source for funding possible RFPs for Core\ninvestments and Non-Core Investments.\n\nIt was moved by Trustee Reed and seconded by Trustee\nPray, that the Committee recommend that the Board approve the\nrelease of a Request for Proposal (\"RFP\") for investment in a Core\nreal estate fund for the County Fund with a mandate of an\n\n5Letter from Margaret M. Fahrenbach, Legal Department, to Katie Goldsmith, Assistant Attorney\nGeneral, Public Access Bureau (July 7, 2023), at 1.\n\n4E-mail from Gar Chung to [Katie] Goldsmith (July 10, 2023).\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 5\n\nestimated $110M as presented and recommended by the Fund's\nInvestment Consultant, Callan LLC.!*!\n\nThe minutes also reflect a subsequent roll call vote for approval of a release of an RFP for\ninvestment in a Non-Core real estate fund for an estimated sixty million dollars.° The minutes\nthen state that the Callan, LLC (Callan) representative presented a summary of the real estate\nportfolio for the Forest Fund and indicate that a brief discussion was had before the Investment\nCommittee began to discuss a different topic.”\n\nThis office's review and comparison of the redacted and unredacted Real Estate\nStrategic Plan confirms that the redacted portions reveal opinions and recommendations of\nCallan related to real estate investments and strategies considered by the Investment Committee\nduring its meeting. Although the Fund did not directly create the record, it is nevertheless an\ninter-agency record of the Fund because Callan prepared it as a consultant rather than for its own\nindependent interests. The meeting minutes reflect that the Investment Committee considered\nthe Real Estate Strategic Plan as part of the broad decision-making process concerning future\ninvestments at the meeting. Therefore, because the Real Estate Strategic Plan contains opinions\nand recommendations upon which the Investment Committee relied to formulate decisions, the\nredacted portions constitute \"predecisional or deliberative material\" that fall within the scope of\nsection 7(1)(f) of FOIA.\n\nMr. Chung contends that the Fund waived the ability to withhold the Real Estate\nStrategic Plan under section 7(1)(f) because the Investment Committee discussed the record at a\npublic meeting. As explained above, a public body waives the applicability of section 7(1)(f) ifa\nrecord or portion of a record is \"publicly cited and identified by the head of the public body.\"*® In\nDumke vy. City of Chicago, 2013 IL App (1st) 121668, the Illinois Appellate Court considered\nwhether a public statement by the mayor of the City of Chicago \"publicly cited and identified\" a\nrecord for purposes of section 7(1)(f). The plaintiff alleged that then-Mayor Richard Daley\n\n‘Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees' Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 1-2.\n\n‘Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees' Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 2.\n\n7Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees’ Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 2.\n\n‘FOIA defines \"head of the public body\" as \"the president, mayor, chairman, presiding officer,\ndirector, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person's duly authorized designee.\" 5 ILCS 140/2(e) (West 2022).\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 6\n\nwaived the section 7(1)(f) exemption with respect to a study prepared for the Chicago Police\nDepartment by an outside consulting firm when he referred to the study during a press\nconference and in an ensuing press release. Dumke, 2013 IL App (Ist) 121668, §] 16-17. At the\noutset, the court noted that \"[s]ection 7(1)(f) does not provide any guidance on how much or how\nlittle needs to be said or done to constitute an effective waiver. The parties have not advanced or\npresented any legislative history or citation to any legal authority, nor has our research found\nany, that assists us in determining what minimum conduct amounts to public citation and\nidentification.\" Dumke, 2013 IL App (1st) 121668, § 18. In the absence of authority, the court\nturned to the plain language of section 7(1)(f) and found it to be unambiguous:\n\nBoth \"cite\" and \"identify\" have a plain and ordinary meaning, as\nwell as a common understanding. \"Cite\" is defined as, \"[t]o\nmention or bring forward as support, illustration, or proof.\"\n[Citation.] \"Identify\" means to \"1 a: to cause to be or become\nidentical b: to conceive as united (as in spirit, outlook, or principle)\n<groups that are identified with conservation» 2 a: to establish the\nidentity of b: to determine the taxonomic position of (a biological\nspecimen) \"establish the identity of: show or prove the sameness\nof.\" [Citation.] (Emphasis in original.) Dumke, 2013 IL App (Ist)\n121668, 4 20.\n\nEmploying those definitions, the court determined:\n\nThe mayor cited and identified the report as a \"management\nstudy requested by Superintendent Weis earlier this year\" and its\npurpose as \"the study of police administration staffing.\" He cited\nthe report and he identified it as support for his reorganization\nplan. Specifically, he stated that Superintendent Weis requested\nthe management study, and as a result of the study, 130 more\npolice officers would be on the streets keeping the city safe. * * *\nThe mayor identified the individuals and businesses that conducted\nthe study and issued the resulting report. He stated that \"the study\nof police administration staffing\" began in 2010 and was\nconducted pro bono by the Civic Consulting Alliance with the\nassistance of Ryan Faye. Mayor Daley also stated that A.T.\nKearney helped with various parts of the review. Mayor Daley not\nonly identified the study and the key players, but personally\nthanked them. The mayor also indicated that the report \"offers\nmany findings and ways that the department will improve its\nmanagement.\" There is no question that the mayor cited and\nidentified the report in public given that it occurred during a press\n\nOffice of the Illinois Attorney General\n\nMr. Gar Chung\n\nMs. Margaret M. Fahrenbach\nFebruary 13, 2024\n\nPage 7\n\nconference that was later available on the mayor's YouTube page,\na summary of which was released in printed form. Dumke, 2013\nIL App (st) 121668, § 24.\n\nThe court went on to conclude that because the mayor commended the authors of the\nmanagement study and directly referred to the management study to support the reorganization\nplan, the section 7(1)(f) exemption was waived. Dumke, 2013 IL App (ist) 121668, § 28.\n\nThe facts of Mr. Gar's Request for Review appear starkly different from the facts\nin Dumke. Based on a review of the May 23, 2023, meeting minutes, it does not appear that any\nconceivable head of the public body—whether Executive Director Lewandowski, Investment\nCommittee Chairman Kevin Ochalla, or Fund Board of Trustees Chairman Patrick J.\nMcFadden—cited and identified the Real Estate Strategic Plan in open session. It appears that a\nCallan representative introduced and led the discussion of the Real Estate Strategic Plan. In the\nabsence of other evidence, such as an audio recording for the meeting, there is no indication that\nthe head of the Fund publicly cited and identified the Real Estate Strategic Plan. Therefore, the\nredacted portions of the Real Estate Strategic Plan are exempt from disclosure for the reasons\ndiscussed above.?\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this file. Please contact me at\nkatherine.goldsmith@ilag.gov if you have any questions.\n\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n\n76974 f 71f proper co\n\n°This office notes that the Fund indicated in its response to this office that it had prepared a less\nredacted version for disclosure of certain pages of the Real Estate Strategic Plan because \"the Investment Committee\ndiscussed the proposed commitments for 2023 and recommended that the Retirement Board adopt some of the\nrecommendations[.]\" Letter from Margaret M. Fahrenbach, Legal Department, to Katie Goldsmith, Assistant\nAttorney General, Public Access Bureau (July 7, 2023), at 1. However, per the reasoning included in this\ndetermination letter, the Fund may properly redact those pages in accordance with section 7(1)(f) of FOIA as\nalready provided to Mr. Chung in response to his FOIA request if it so chooses.\n\nOffice of the Illinois Attorney General\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Pension fund's redacted Real Estate Strategic Plan","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-76974/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAI\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nFebruary 13, 2024\n\nVia electronic mail\n\nMr. Gar Chung\n\nFinancial Investment News\n\n15 West 26th Street, 4th Floor\nNew York, New York 10010\ngchung@fin-news.com\n\nVia electronic mail\n\nMs. Margaret M. Fahrenbach\n\nLegal Advisor\n\nCook County Pension Fund\n\n[street address redacted for site publication -- see original PDF]\nmfahrenbach@countypension.com\n\nRE: FOIA Request for Review — 2023 PAC 76974\n\nDear Mr. Chung and Ms. Fahrenbach:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103-069,\neffective January 1, 2024). For the reasons stated below, the Public Access Bureau concludes\n\n1745 Innovation Drive, Suite C\nCarbondale, Ilinois 62903\n\n$00 South 2nd Street 115 South LaSalle Street\nSpringfield, [linois 62701 Chicago, Illinois 60603\n(217) 782-1090 * Fax: (217) 782-7046 (312) 814-3000 * Fax: (312) 814-3806 (618) 529-6400 + Fax: (618) 529-6416\n\nIndividuals with hearing or speech disabilities can reach us by using the 7-1-1 relay service\n\nthat the Cook County Pension Fund (Fund) did not improperly redact certain portions of a record\nresponsive to Mr. Gar Chung's May 25, 2023, FOIA request.\n\nOn that date, Mr. Chung submitted a FOIA request to the Fund on behalf of\nFinancial Investment News seeking electronic copies of six records. On June 16, 2023, the Fund\nprovided Mr. Chung with redacted copies of certain records and stated that some unidentified\nrecords were exempt or not subject to disclosure pursuant to sections 7(1)(f) and 7(1)(g) of\nFOIA.! On June 26, 2023, Mr. Chung submitted the above-referenced Request for Review\ndisputing the Fund's denial of his request. On June 27, 2023, in e-mail correspondence with an\nAssistant Attorney General (AAG) from the Public Access Bureau, Mr. Chung clarified that he\nwas seeking review of only the Real Estate Strategic Plan from the May 23, 2023, Investment\nCommittee meeting. Mr. Chung contended:\n\nI requested an investment report from the fund's consultant\nCallan that was presented and discussed in an open forum, in this\ncase at their investment committee meeting in May.\n\nThe report I received was heavily redacted, and fund\nexplained that it was \"because they contain recommendations in\nwhich opinions were expressed regarding action that might be\nconsidered.\"\n\nI believe they are wrong since this report was openly and\npublicly discussed at their meeting that was open to the public.!?!\n\nOn that same date, this office sent a copy of the Request for Review to the Fund\nand asked for an unredacted copy of the Real Estate Strategic Plan for our confidential review,\ntogether with a detailed explanation of the factual and legal bases for the applicability of the\nasserted exemptions. This office also asked the Fund to address the extent to which the record\nwas publicly cited and identified by the head of the public body at a meeting.\n\nOn July 7, 2023, the Fund provided this office with an unredacted copy of the\nReal Estate Strategic Plan and its written response. On July 10, 2023, this office forwarded a\ncopy of the Fund's written response to Mr. Chung; he submitted a reply that same morning. On\nAugust 25, 2023, the Fund provided the AAG with a copy of the approved meeting minutes for\nthe Investment Committee's May 23, 2023, meeting.\n\nDETERMINATION\n\n\"All public records in the custody or possession of a public body are presumed to\nbe open to inspection and copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v.\nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that asserts\nthat a record is exempt from disclosure \"has the burden of proving by clear and convincing\nevidence\" that a record is exempt from disclosure. 5 ILCS 140/1.2 (West 2022). The\nexemptions from disclosure are to be narrowly construed. See Lieber v. Board of Trustees of\nSouthern Illinois University, 176 Ill. 2d 401, 407 (1997).\n\nIn its response to this office, the Fund asserted that the records were exempt\npursuant to section 7(1)(f) of FOIA only. Section 7(1)(f) exempts from disclosure \"[p]reliminary\ndrafts, notes, recommendations, memoranda and other records in which opinions are expressed,\nor policies or actions are formulated, except that a specific record or relevant portion of a record\nshall not be exempt when the record is publicly cited and identified by the head of the public\nbody.\" The section 7(1)(f) exemption is \"intended to protect the communications process and\nencourage frank and open discussion among agency employees before a final decision is made.\"\nHarwood v. McDonough, 344 Ill. App. 3d 242, 248 (2003). Section 7(1)(f) can apply to\nconsultant reports when the consultant represents the interest of the public body, rather than any\ninterest of its own. Harwood, 344 Ill. App. 3d at 248.\n\nIn its response to this office, the Fund maintained that its partial denial was proper\nbecause:\n\nThe Record was prepared by Callan, LLC, the Fund's\nInvestment Consultant, and was made available to the trustees at\nthe time of the Investment Committee meeting on May 23, 2023.\nThe information redacted from the Record were recommendations\nand opinions from the Investment Consultant to the trustees\nregarding possible real estate investments and strategies, which are\nexempt from disclosure pursuant to Section 7(1)(f) of the Act, 5\nILCS 140/7(1)(f). Upon review of the redacted materials, the Fund\nagrees that objections to certain redactions made on page 17 and\npages 19-20 are valid because the Investment Committee discussed\nthe proposed commitments for 2023 and recommended that the\nRetirement Board adopt some of the recommendations made by\n\nOtherwise, the Investment Committee did not discuss or\ntake any action regarding the recommendations made in the\nRecord during the meeting. The Executive Director of the Fund,\nMr. Brent Lewandowski is the head of the public body and he has\nnot publicly cited or identified the Record.!°!\n\nIn reply, Mr. Chung argued that \"the investment committee did discuss the\nrecommendation in open session, and therefore the document shouldn't be redacted.\"*\n\nThe approved minutes from the Investment Committee meeting held on May 23,\n2023, state, in relevant part, as follows:\n\n2. Real Estate Strategic Plan and Performance Review\n\nMs. Barbara Bernard of Callan LLC stated that, in general,\nreal estate investments had negative appreciation values and that\ninterest rates were up. The office property segment of this asset\nclass was particularly challenged. She presented a summary of the\nallocations for the County Fund's real estate portfolio and the\ninvestment positions as of December 31, 2022, for Core, Non-Core\nand REIT investments. The total real estate portfolio exceeds the\n9% target for this asset class, but is within the policy range. The\nportfolio is in line with the stated limits for Core, Non-Core and\nREIT investment target allocations. The Core investments and\nnon-Core investments out-performed their benchmarks over the\ntrailing one, three, five and ten years. The REITs collectively\nunderperformed the benchmark by -280 basis points in the last\nyear, but out-performed the benchmark across the three year period\nby 73 basis points and outperformed the benchmark for the five\nyear period by 50 basis points. It was discussed that the REITS\ncould be used as a source for funding possible RFPs for Core\ninvestments and Non-Core Investments.\n\nIt was moved by Trustee Reed and seconded by Trustee\nPray, that the Committee recommend that the Board approve the\nrelease of a Request for Proposal (\"RFP\") for investment in a Core\nreal estate fund for the County Fund with a mandate of an\n\n5 Letter from Margaret M. Fahrenbach, Legal Department, to Katie Goldsmith, Assistant Attorney\n\nestimated $110M as presented and recommended by the Fund's\nInvestment Consultant, Callan LLC.!*!\n\nThe minutes also reflect a subsequent roll call vote for approval of a release of an RFP for\ninvestment in a Non-Core real estate fund for an estimated sixty million dollars.° The minutes\nthen state that the Callan, LLC (Callan) representative presented a summary of the real estate\nportfolio for the Forest Fund and indicate that a brief discussion was had before the Investment\nCommittee began to discuss a different topic.”\n\nThis office's review and comparison of the redacted and unredacted Real Estate\nStrategic Plan confirms that the redacted portions reveal opinions and recommendations of\nCallan related to real estate investments and strategies considered by the Investment Committee\nduring its meeting. Although the Fund did not directly create the record, it is nevertheless an\ninter-agency record of the Fund because Callan prepared it as a consultant rather than for its own\nindependent interests. The meeting minutes reflect that the Investment Committee considered\nthe Real Estate Strategic Plan as part of the broad decision-making process concerning future\ninvestments at the meeting. Therefore, because the Real Estate Strategic Plan contains opinions\nand recommendations upon which the Investment Committee relied to formulate decisions, the\nredacted portions constitute \"predecisional or deliberative material\" that fall within the scope of\nsection 7(1)(f) of FOIA.\n\nMr. Chung contends that the Fund waived the ability to withhold the Real Estate\nStrategic Plan under section 7(1)(f) because the Investment Committee discussed the record at a\npublic meeting. As explained above, a public body waives the applicability of section 7(1)(f) ifa\nrecord or portion of a record is \"publicly cited and identified by the head of the public body.\"*® In\nDumke vy. City of Chicago, 2013 IL App (1st) 121668, the Illinois Appellate Court considered\nwhether a public statement by the mayor of the City of Chicago \"publicly cited and identified\" a\nrecord for purposes of section 7(1)(f). The plaintiff alleged that then-Mayor Richard Daley\n\n‘Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees' Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 1-2.\n\n‘Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees' Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 2.\n\n7 Investment Committee, Retirement Board of the County Employees' and Officers’ Annuity and\nBenefit Fund of Cook County and Ex Officio for the Forest Preserve District Employees’ Annuity and Benefit Fund\nof Cook County, May 23, 2023, Minutes 2.\n\n‘FOIA defines \"head of the public body\" as \"the president, mayor, chairman, presiding officer,\ndirector, superintendent, manager, supervisor or individual otherwise holding primary executive and administrative\nauthority for the public body, or such person's duly authorized designee.\" 5 ILCS 140/2(e) (West 2022).\n\nwaived the section 7(1)(f) exemption with respect to a study prepared for the Chicago Police\nDepartment by an outside consulting firm when he referred to the study during a press\nconference and in an ensuing press release. Dumke, 2013 IL App (Ist) 121668, §] 16-17. At the\noutset, the court noted that \"[s]ection 7(1)(f) does not provide any guidance on how much or how\nlittle needs to be said or done to constitute an effective waiver. The parties have not advanced or\npresented any legislative history or citation to any legal authority, nor has our research found\nany, that assists us in determining what minimum conduct amounts to public citation and\nidentification.\" Dumke, 2013 IL App (1st) 121668, § 18. In the absence of authority, the court\nturned to the plain language of section 7(1)(f) and found it to be unambiguous:\n\nBoth \"cite\" and \"identify\" have a plain and ordinary meaning, as\nwell as a common understanding. \"Cite\" is defined as, \"[t]o\nmention or bring forward as support, illustration, or proof.\"\n[Citation.] \"Identify\" means to \"1 a: to cause to be or become\nidentical b: to conceive as united (as in spirit, outlook, or principle)\n<groups that are identified with conservation» 2 a: to establish the\nidentity of b: to determine the taxonomic position of (a biological\nspecimen) \"establish the identity of: show or prove the sameness\nof.\" [Citation.] (Emphasis in original.) Dumke, 2013 IL App (Ist)\n121668, 4 20.\n\nEmploying those definitions, the court determined:\n\nThe mayor cited and identified the report as a \"management\nstudy requested by Superintendent Weis earlier this year\" and its\npurpose as \"the study of police administration staffing.\" He cited\nthe report and he identified it as support for his reorganization\nplan. Specifically, he stated that Superintendent Weis requested\nthe management study, and as a result of the study, 130 more\npolice officers would be on the streets keeping the city safe. * * *\nThe mayor identified the individuals and businesses that conducted\nthe study and issued the resulting report. He stated that \"the study\nof police administration staffing\" began in 2010 and was\nconducted pro bono by the Civic Consulting Alliance with the\nassistance of Ryan Faye. Mayor Daley also stated that A.T.\nKearney helped with various parts of the review. Mayor Daley not\nonly identified the study and the key players, but personally\nthanked them. The mayor also indicated that the report \"offers\n\nconference that was later available on the mayor's YouTube page,\na summary of which was released in printed form. Dumke, 2013\nIL App (st) 121668, § 24.\n\nThe court went on to conclude that because the mayor commended the authors of the\nmanagement study and directly referred to the management study to support the reorganization\nplan, the section 7(1)(f) exemption was waived. Dumke, 2013 IL App (ist) 121668, § 28.\n\nThe facts of Mr. Gar's Request for Review appear starkly different from the facts\nin Dumke. Based on a review of the May 23, 2023, meeting minutes, it does not appear that any\nconceivable head of the public body—whether Executive Director Lewandowski, Investment\nCommittee Chairman Kevin Ochalla, or Fund Board of Trustees Chairman Patrick J.\nMcFadden—cited and identified the Real Estate Strategic Plan in open session. It appears that a\nCallan representative introduced and led the discussion of the Real Estate Strategic Plan. In the\nabsence of other evidence, such as an audio recording for the meeting, there is no indication that\nthe head of the Fund publicly cited and identified the Real Estate Strategic Plan. Therefore, the\nredacted portions of the Real Estate Strategic Plan are exempt from disclosure for the reasons\ndiscussed above.?\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter closes this file. Please contact me at\nkatherine.goldsmith@ilag.gov if you have any questions.\n\nVery truly yours,\n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n\n76974 f 71f proper co\n\n°This office notes that the Fund indicated in its response to this office that it had prepared a less\nredacted version for disclosure of certain pages of the Real Estate Strategic Plan because \"the Investment Committee\ndiscussed the proposed commitments for 2023 and recommended that the Retirement Board adopt some of the\nrecommendations[.]\" Letter from Margaret M. Fahrenbach, Legal Department, to Katie Goldsmith, Assistant\nAttorney General, Public Access Bureau (July 7, 2023), at 1. However, per the reasoning included in this\ndetermination letter, the Fund may properly redact those pages in accordance with section 7(1)(f) of FOIA as\nalready provided to Mr. Chung in response to his FOIA request if it so chooses.\n\nOffice of the Illinois Attorney General"}
{"id":1012,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2024-05-23","case_number":null,"request_numbers":["77078"],"title":"City of Springfield properly denied unduly burdensome FOIA request under 3(g)","filename":"77078, issued May 23, 2024.pdf","rel_path":null,"word_count":2199,"summary":"The requester sought various emails from the City of Springfield, which the City denied as unduly burdensome under FOIA. The PAC determined that the City's denial was appropriate because the burden of production outweighed the public interest in the records.","plain_summary":"A requester asked the City of Springfield for a large volume of emails over a multi-year period. The City claimed the request was too broad and burdensome to fulfill, and the PAC agreed, finding that the effort required to search for and produce the records was not justified by the public interest.","holding":"The City of Springfield did not violate FOIA by denying the request as unduly burdensome.","legal_question":"Whether the City of Springfield properly denied a FOIA request on the grounds that it was unduly burdensome under section 3(g) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(b)","7(1)(c)","7(1)(f)"],"public_body":"City of Springfield","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought extensive email correspondence between the City and union-related addresses, as well as emails containing specific keywords over several years.","ocr_status":"ok","ocr_quality":94.3,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_e/May-reach-written-agreement-for-longer-extension/77078%2C%20issued%20May%2023%2C%202024.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","FOIA request","email records","burden of production"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"May 23, 2024\n\nVia electronic mail\n\nVia electronic mail\nKateah M. McMasters\nSenior Assistant Corporation Counsel\nOffice of Corporation Counsel,  Code Enforcement Division\nCity of Springfield\n800 East Monroe Street,  Room 327\nSpringfield,  Illinois 62701\nKateah. McMasters@springfield. il.us\n\nRE:  FOIA Request for Review –  2023 PAC 77078;  FOIA 30359\n\nDear\n\nand Kateah McMasters: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1 For the reasons stated below,  the Public Access Bureau concludes that\nthe response by the City of Springfield ( City) to\ndid not violate FOIA. \n\nApril 19, 2023,  FOIA request\n\nOn April 13, 2023, \n\nsubmitted a FOIA request to the City seeking\nall e-mails between the City and two specified union- related e-mail addresses for the period of\nJune 1, 2020,  to the date of the request,  as well as all e-mails sent or received by any City\nemployee with certain keywords for the same period.   On April 18, 2023,  the City informed\n\nthat the request was unduly burdensome and offered an opportunity to narrow the\n\nscope of the request to manageable proportions.   The City requested a response by April 25, \n2023.   \n\n15 ILCS 140/9.5(f) (West 2022),  as amended by Public Act 103- 069, effective January 1, 2024. \n\n\fKateah M. McMasters\nMay 23, 2024\nPage 2\n\nOn April 19, 2023, \n\nsubmitted an amended FOIA request to the\n\nCity, narrowing the time frame for the responsive records to July 2021 to November 2021 and\nJanuary 1, 2023 to April 19, 2023.   On April 20, 2023,  the City extended its time to respond by 5\nbusiness days pursuant to section 3(e)  of FOIA ( 5 ILCS 140/ 3(e) ( West 2022)).   On April 26, \n2023, \nsought clarification from the City as to whether its April 20, 2023,  letter\nwas a final denial.   On April 27, 2023,  the City explained that it located 500-600 potentially\nresponsive e-mails and requested an additional extension of 5 business days to respond, \nindicating it would respond by May 5, 2023.   Later the same day, \ne-mailed the City to state that no\nextension.   On May 8, 2023,  and May 11, 2023, \nrecords had been received and asking for an update.   On May 11, 2023,  the City responded that it\nhad e-mailed a final response on May 1, 2023.  \nstated that no May 1, 2023,  e-mail\nwas received and requested that the City forward the May 1, 2023,  e-mail.  The City then e-\nmailed\nApril 19, 2023,  request as unduly burdensome pursuant to section 3(g) of FOIA (5 ILCS\n140/ 3(g) (West 2022)).   On May 11, 2023, \nany e-mail sent from the City to\n2023,  the City provided\na copy of any transmittal e-mail.  On June 26, 2023,  this office received\nfor Review challenging the handling of the April 19, 2023,  FOIA request. \n\nOn May 18, \nwith copies of the May 1, 2023,  letter, but did not provide\nRequest\n\na copy of a letter dated May 1, 2023,  stating that the City was denying the\n\nsubmitted another FOIA request for\n\nagreed to the\n\nor\n\nOn June 30, 2023,  and July 26, 2023,  this office sent copies of the Request for\nReview to the City and asked it to provide a written answer to this office describing the City's\nreceipt and handling of\na detailed written explanation of the factual and legal bases for the assertion that fulfilling\nApril 19, 2023,  FOIA request would cause an undue burden on the City's\noperations,  including how \" the burden on the public body outweighs the public interest\"  in\ndisclosure of the information.   5 ILCS 140/ 3(g) (West 2022).   On August 2, 2023,  City\nresponded.   On August 4, 2023,  this office forwarded a copy of the City's answer to\n\nApril 19, 2023,  FOIA request.   This office also requested\n\nwho submitted a reply on August 11, 2023. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2022);  see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1.2 (West 2022). \n\nSection 3(d) of FOIA ( 5 ILCS 140/ 3(d) (West 2022))  provides,  in pertinent part, \n\nthat:  \n\n\fKateah M. McMasters\nMay 23, 2024\nPage 3\n\nEach public body shall, promptly,  either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request,  unless the time for response is properly\nextended under subsection ( e)  of this Section.  * * *   Failure to\ncomply with a written request,  extend the time for response,  or\ndeny a request within 5 business days after its receipt shall be\nconsidered a denial of the request.  A public body that fails to\nrespond to a request within the requisite periods in this Section but\nthereafter provides the requester with copies of the requested\npublic records may not impose a fee for such copies.  A public\nbody that fails to respond to a request received may not treat\nthe request as unduly burdensome under subsection ( g).  \nEmphasis added.) \n\nSection 3(e)  of FOIA (5 ILCS 140/ 3(e) ( West 2022))  further provides that \"[ t]he person making\na request and the public body may agree in writing to extend the time for compliance for a period\nto be determined by the parties.\" \n\nSection 3(g) of FOIA provides,  in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information.  Before invoking\nthis exemption,  the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions.  If any public body responds\nto a categorical request by stating that compliance would unduly\nburden its operation and the conditions described above are met, it\nshall do so in writing,  specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body.  Such a response shall be\ntreated as a denial of the request for information. \n\nfirst contention is that the City's response to the April 19, 2023, \n\namended request was untimely based on questions about the validity of the May 1, 2023, \nresponse.   On April 20, 2023,  the City extended its time to respond to the original April 13, \n2023,  request by five business days,  creating a new due date of April 27, 2023.   On April 27, \n2023, \nof May 4, 2023.   The City issued its final response on May 1, 2023.   Although\n\nagreed to an additional five business day extension,  creating a new due date\ndid\n\n\fKateah M. McMasters\nMay 23, 2024\nPage 4\n\nnot receive the May 1, 2023,  response,  the City has provided this office with a copy of the May\n1, 2023,  12:29 p.m. transmittal e-mail from CityClerk@cwlp. com to\n\nsoftware reflecting that the response was sent on May 1, 2023,  at 12:29 p.m.2 Accordingly,  this\noffice concludes that the City issued a timely final response on May 1, 2023. \n\nas well as a screenshot from the City's FOIA management\n\nalso objected to the City's denial on the basis that the City's May 1, \n\nin section 3(g) that \"[ b] efore invoking this\n\n2023,  response did not comply with the requirement\nexemption,  the public body shall extend to the person making the request an opportunity to\nconfer with it in an attempt to reduce the request to manageable proportions.\"   The City\nacknowledged that its May 1, 2023,  denial letter did not extend to\nto confer,  but it argued that it was not required to extend a second opportunity,  noting that\nsection 3(g) requires only \" an opportunity.\"   The City explained that it did not treat the April 19, \n2023,  amended request as a new FOIA request;  rather it addressed it as part of the April 13, \n2023,  FOIA request.   The City argued: \n\nan opportunity\n\nNothing in FOIA requires public bodies to extend multiple\nopportunities to a requestor to reduce the scope of their request. \nNor does FOIA mention or discuss the treating or handling of\ndid not submit an entirely\namended\"  FOIA requests. \nnew FOIA request on April 19, 2023.  Instead,  she unsuccessfully\nnarrowed the scope of her April 13, 2023 request.  Said request\nremained unduly burdensome on April 19, 2023.  FOIA did not\nobligate the City to provide her an additional or further opportunity\nto narrow the same request.[ 3]  \n\nThe office has previously concluded that FOIA does not require a public body to continue to\nconfer with a requester to further narrow an amended request.   See,  for example,  Ill. Att'y Gen. \nPAC Req.  Rev. Ltr. 55347,  issued November 27, 2018,  at 4 (a school district was not required to\noffer requester another opportunity to further narrow her request before denying narrowed\nrequest as unduly burdensome).   Therefore,  the City was not required to include in its May 1, \n2023,  response an opportunity to confer and narrow the scope of the request.   Accordingly,  this\noffice concludes that the City met the procedural requirements of section 3(g). \n\nFinally, \n\nargued that the amended request was not unduly\n\nburdensome.   This office has previously determined that a request seeking all records in a\n\np.m. transmittal e-mail if it has not already done so. \n\n2This office requests that the City provide\n\nwith a copy of the May 1, 2023, 12:29\n\nCounsel,  City of Springfield to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau ( August 2, 2023),  at 2. \n\n3Letter from Kateah McMasters,  Senior Assistant Corporation Counsel,  Office of Corporation\n\n\fKateah M. McMasters\nMay 23, 2024\nPage 5\n\ncategory over an extended period,  which would require a public body to review a large quantity\nof responsive records,  is unduly burdensome under section 3(g) of FOIA in the absence of an\nidentified public interest in disclosure of all the records that outweighs the burden of compliance\nwith the request.   See, for example,  Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 20002,  issued August 29, \n2012,  at 3 (a request for all grievance records spanning a 12-month period was unduly\nburdensome);  Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 21102,  issued November 19, 2012,  at 3-4 (a\nrequest for financial records spanning a 5-year period was unduly burdensome);  see also\nNational Ass'n of Criminal Defense Lawyers v. Chicago Police Department,  399 Ill. App. 3d 1, \n17 (2010) (\" A request that is overly broad and requires the public body to locate,  review,  redact\nand arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequester' s]  purpose constitutes an undue burden.\"). \n\nIn its response to this office, the City explained that there are 500- 600 e-mails\n\nresponsive to\npreliminary review of the responsive records identified information that it would choose to\nredact pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(f) of FOIA. 4 The City estimated that it\nwould take several weeks for its staff to complete the review of the requested records. \n\nnarrowed FOIA request,  resulting in over 2,000 pages.   The City's\n\nBased on this office's review,  compliance with\n\nrequest would\nimpose a heavy burden on the City's operations by requiring it to review and produce a large\nnumber of documents.  \nnarrowed the timeframe of the original request,  but the\nrequest remained categorical,  seeking all City e-mails containing a union representative' s e-mail\naddress,  regardless of the subject matter.   Although there is a general public interest in how the\nCity communicates with union representatives, \ninterest in disclosure that outweighs the City's burden of compliance.   Illinois courts have\ndetermined that a FOIA request must be specifically targeted to advance a compelling public\ninterest to outweigh the burden of compliance on a public body under section 3(g) of FOIA.  See, \nfor example,  Sargent Shriver National Center on Poverty Law, Inc. v. Board of Education of City\nof Chicago,  2018 IL App ( 1st)  171846, ¶¶  39-41 ( determining that although the topic of the\nschool- to-prison pipeline is of significant public interest,  the year- long scope of the request was\nindicative of a fishing expedition rather than an appropriately targeted request,  such as a request\nlimited to suspected misconduct within a specific school or of a specific officer,  or schools with\nthe highest student arrest rates).   On balance,  the burden on the City to produce the volume of\nrecords responsive to\nthis office concludes that the City did not violate FOIA by denying\nunduly burdensome.   \n\nrequest outweighs the public' s interest in them.   Therefore, \n\ndid not identify a particular public\n\nrequest as\n\n45 ILCS 140/7(1)(b), (1)(c), (1)(f) (West 2022). \n\n\fKateah M. McMasters\nMay 23, 2024\nPage 6\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion.   If you have any questions,  please contact me at\nlaura.harter@ilag. gov.  This letter serves to close this file. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n77078 f 3g proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A city's email correspondence with union addresses","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77078/","full_text":"May 23, 2024\n\nVia electronic mail\n\nVia electronic mail\nKateah M. McMasters\nSenior Assistant Corporation Counsel\nOffice of Corporation Counsel, Code Enforcement Division\nCity of Springfield\n800 East Monroe Street, Room 327\nSpringfield, Illinois 62701\nKateah. McMasters@springfield. il.us\n\nRE: FOIA Request for Review – 2023 PAC 77078; FOIA 30359\n\nDear\n\nand Kateah McMasters: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA). 1 For the reasons stated below, the Public Access Bureau concludes that\nthe response by the City of Springfield (City) to\ndid not violate FOIA. \n\nApril 19, 2023, FOIA request\n\nOn April 13, 2023, \n\nsubmitted a FOIA request to the City seeking\nall e-mails between the City and two specified union- related e-mail addresses for the period of\nJune 1, 2020, to the date of the request, as well as all e-mails sent or received by any City\nemployee with certain keywords for the same period. On April 18, 2023, the City informed\n\nthat the request was unduly burdensome and offered an opportunity to narrow the\n\nscope of the request to manageable proportions. The City requested a response by April 25, \n2023. \n\n15 ILCS 140/9.5(f) (West 2022), as amended by Public Act 103- 069, effective January 1, 2024. \n\nOn April 19, 2023, \n\nsubmitted an amended FOIA request to the\n\nCity, narrowing the time frame for the responsive records to July 2021 to November 2021 and\nJanuary 1, 2023 to April 19, 2023. On April 20, 2023, the City extended its time to respond by 5\nbusiness days pursuant to section 3(e) of FOIA (5 ILCS 140/ 3(e) (West 2022)). On April 26, \n2023, \nsought clarification from the City as to whether its April 20, 2023, letter\nwas a final denial. On April 27, 2023, the City explained that it located 500-600 potentially\nresponsive e-mails and requested an additional extension of 5 business days to respond, \nindicating it would respond by May 5, 2023. Later the same day, \ne-mailed the City to state that no\nextension. On May 8, 2023, and May 11, 2023, \nrecords had been received and asking for an update. On May 11, 2023, the City responded that it\nhad e-mailed a final response on May 1, 2023. \nstated that no May 1, 2023, e-mail\nwas received and requested that the City forward the May 1, 2023, e-mail. The City then e-\nmailed\nApril 19, 2023, request as unduly burdensome pursuant to section 3(g) of FOIA (5 ILCS\n140/ 3(g) (West 2022)). On May 11, 2023, \nany e-mail sent from the City to\n2023, the City provided\na copy of any transmittal e-mail. On June 26, 2023, this office received\nfor Review challenging the handling of the April 19, 2023, FOIA request. \n\nOn May 18, \nwith copies of the May 1, 2023, letter, but did not provide\nRequest\n\na copy of a letter dated May 1, 2023, stating that the City was denying the\n\nsubmitted another FOIA request for\n\nagreed to the\n\nor\n\nOn June 30, 2023, and July 26, 2023, this office sent copies of the Request for\nReview to the City and asked it to provide a written answer to this office describing the City's\nreceipt and handling of\na detailed written explanation of the factual and legal bases for the assertion that fulfilling\nApril 19, 2023, FOIA request would cause an undue burden on the City's\noperations, including how \" the burden on the public body outweighs the public interest\" in\ndisclosure of the information. 5 ILCS 140/ 3(g) (West 2022). On August 2, 2023, City\nresponded. On August 4, 2023, this office forwarded a copy of the City's answer to\n\nApril 19, 2023, FOIA request. This office also requested\n\nwho submitted a reply on August 11, 2023. \n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\n\nEach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its\nreceipt of the request, unless the time for response is properly\nextended under subsection (e) of this Section. * * * Failure to\ncomply with a written request, extend the time for response, or\ndeny a request within 5 business days after its receipt shall be\nconsidered a denial of the request. A public body that fails to\nrespond to a request within the requisite periods in this Section but\nthereafter provides the requester with copies of the requested\npublic records may not impose a fee for such copies. A public\nbody that fails to respond to a request received may not treat\nthe request as unduly burdensome under subsection (g). \nEmphasis added.) \n\nSection 3(e) of FOIA (5 ILCS 140/ 3(e) (West 2022)) further provides that \"[ t]he person making\na request and the public body may agree in writing to extend the time for compliance for a period\nto be determined by the parties.\" \n\nSection 3(g) of FOIA provides, in pertinent part: \n\nRequests calling for all records falling within a category\n\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person making\nthe request an opportunity to confer with it in an attempt to reduce\nthe request to manageable proportions. If any public body responds\nto a categorical request by stating that compliance would unduly\nburden its operation and the conditions described above are met, it\nshall do so in writing, specifying the reasons why it would be\nunduly burdensome and the extent to which compliance will so\nburden the operations of the public body. Such a response shall be\ntreated as a denial of the request for information. \n\nfirst contention is that the City's response to the April 19, 2023, \n\namended request was untimely based on questions about the validity of the May 1, 2023, \nresponse. On April 20, 2023, the City extended its time to respond to the original April 13, \n2023, request by five business days, creating a new due date of April 27, 2023. On April 27, \n\nnot receive the May 1, 2023, response, the City has provided this office with a copy of the May\n1, 2023, 12:29 p.m. transmittal e-mail from CityClerk@cwlp. com to\n\nsoftware reflecting that the response was sent on May 1, 2023, at 12:29 p.m.2 Accordingly, this\noffice concludes that the City issued a timely final response on May 1, 2023. \n\nas well as a screenshot from the City's FOIA management\n\nalso objected to the City's denial on the basis that the City's May 1, \n\nin section 3(g) that \"[ b] efore invoking this\n\n2023, response did not comply with the requirement\nexemption, the public body shall extend to the person making the request an opportunity to\nconfer with it in an attempt to reduce the request to manageable proportions.\" The City\nacknowledged that its May 1, 2023, denial letter did not extend to\nto confer, but it argued that it was not required to extend a second opportunity, noting that\nsection 3(g) requires only \" an opportunity.\" The City explained that it did not treat the April 19, \n2023, amended request as a new FOIA request; rather it addressed it as part of the April 13, \n2023, FOIA request. The City argued: \n\nan opportunity\n\nNothing in FOIA requires public bodies to extend multiple\nopportunities to a requestor to reduce the scope of their request. \nNor does FOIA mention or discuss the treating or handling of\ndid not submit an entirely\namended\" FOIA requests. \nnew FOIA request on April 19, 2023. Instead, she unsuccessfully\nnarrowed the scope of her April 13, 2023 request. Said request\nremained unduly burdensome on April 19, 2023. FOIA did not\nobligate the City to provide her an additional or further opportunity\nto narrow the same request.[ 3] \n\nThe office has previously concluded that FOIA does not require a public body to continue to\nconfer with a requester to further narrow an amended request. See, for example, Ill. Att'y Gen. \nPAC Req. Rev. Ltr. 55347, issued November 27, 2018, at 4 (a school district was not required to\noffer requester another opportunity to further narrow her request before denying narrowed\nrequest as unduly burdensome). Therefore, the City was not required to include in its May 1, \n2023, response an opportunity to confer and narrow the scope of the request. Accordingly, this\noffice concludes that the City met the procedural requirements of section 3(g). \n\nFinally, \n\nargued that the amended request was not unduly\n\nburdensome. This office has previously determined that a request seeking all records in a\n\np.m. transmittal e-mail if it has not already done so. \n\n2 This office requests that the City provide\n\nwith a copy of the May 1, 2023, 12:29\n\nCounsel, City of Springfield to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau (August 2, 2023), at 2. \n\ncategory over an extended period, which would require a public body to review a large quantity\nof responsive records, is unduly burdensome under section 3(g) of FOIA in the absence of an\nidentified public interest in disclosure of all the records that outweighs the burden of compliance\nwith the request. See, for example, Ill. Att'y Gen. PAC Req. Rev. Ltr. 20002, issued August 29, \n2012, at 3 (a request for all grievance records spanning a 12-month period was unduly\nburdensome); Ill. Att'y Gen. PAC Req. Rev. Ltr. 21102, issued November 19, 2012, at 3-4 (a\nrequest for financial records spanning a 5-year period was unduly burdensome); see also\nNational Ass'n of Criminal Defense Lawyers v. Chicago Police Department, 399 Ill. App. 3d 1, \n17 (2010) (\" A request that is overly broad and requires the public body to locate, review, redact\nand arrange for inspection a vast quantity of material that is largely unnecessary to the\nrequester's] purpose constitutes an undue burden.\"). \n\nIn its response to this office, the City explained that there are 500- 600 e-mails\n\nresponsive to\npreliminary review of the responsive records identified information that it would choose to\nredact pursuant to sections 7(1)(b), 7(1)(c), and 7(1)(f) of FOIA. 4 The City estimated that it\nwould take several weeks for its staff to complete the review of the requested records. \n\nnarrowed FOIA request, resulting in over 2,000 pages. The City's\n\nBased on this office's review, compliance with\n\nrequest would\nimpose a heavy burden on the City's operations by requiring it to review and produce a large\nnumber of documents. \nnarrowed the timeframe of the original request, but the\nrequest remained categorical, seeking all City e-mails containing a union representative's e-mail\naddress, regardless of the subject matter. Although there is a general public interest in how the\nCity communicates with union representatives, \ninterest in disclosure that outweighs the City's burden of compliance. Illinois courts have\ndetermined that a FOIA request must be specifically targeted to advance a compelling public\ninterest to outweigh the burden of compliance on a public body under section 3(g) of FOIA. See, \nfor example, Sargent Shriver National Center on Poverty Law, Inc. v. Board of Education of City\nof Chicago, 2018 IL App (1st) 171846, ¶¶ 39-41 (determining that although the topic of the\nschool- to-prison pipeline is of significant public interest, the year- long scope of the request was\nindicative of a fishing expedition rather than an appropriately targeted request, such as a request\nlimited to suspected misconduct within a specific school or of a specific officer, or schools with\nthe highest student arrest rates). On balance, the burden on the City to produce the volume of\nrecords responsive to\nthis office concludes that the City did not violate FOIA by denying\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. If you have any questions, please contact me at\nlaura.harter@ilag. gov. This letter serves to close this file. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n77078 f 3g proper mun"}
{"id":1013,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-05","case_number":null,"request_numbers":["77159"],"title":"Illinois State Police did not violate FOIA by withholding child interview video under 7.5(tt)","filename":"77159, issued 100523.pdf","rel_path":null,"word_count":2369,"summary":"The requester sought a forensic interview report from the Illinois State Police (ISP), which the ISP denied as a repeated request under section 3(g). The PAC closed the matter without issuing a binding opinion, noting that the resolution did not require further formal action.","plain_summary":"A requester sought a written forensic-interview report and video from the State Police. The PAC found that the written investigative records had been provided and that the video was exempt under section 7.5(tt), but held that the agency violated FOIA by leaving the video request on an indefinite waitlist instead of promptly granting, denying, or properly extending the response. The agency was reminded that sections 3(d) and 3(e) require timely action.","holding":"The Illinois State Police did not violate FOIA by withholding video recordings of a forensic interview under section 7.5(tt) of FOIA and the Children's Advocacy Center Act, and the written records were properly provided.","legal_question":"Whether the Illinois State Police properly denied a FOIA request as an unduly burdensome repeated request under section 3(g) of FOIA.","disposition":"partial_violation","primary_statute":["5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Illinois State Police","requesting_party":null,"pac_outcome":"Closed, no further action","pac_law_type":null,"subject_category":"repeated request","subject_description":"The requester sought a forensic interview report related to a sexual abuse investigation involving her child.","ocr_status":"ok","ocr_quality":96.1,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7.5/7.5_tt/77159%2C%20issued%20100523.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["repeated request","denial","forensic interview","Illinois State Police"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Rhiann M. Martynowski\nExecutive I – FOIA Appeals Manager\nOffice of the Director\nIllinois State Police\n801 South Seventh Street,  Suite 1000- S\nSpringfield,  Illinois 62703\nISP.FOIA.Officer@illinois. gov\n\nRE:  FOIA Request for Review –  2023 PAC 77159;  ISP no. 05916831\n\nDear\n\nand Ms. Martynowski: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   \n\nOn June 14, 2023, \n\nsubmitted a FOIA request to the Illinois\n\nState Police ( ISP)  seeking \"[ a]  report from the forensic interview of [her child]  which occurred\non 12/21/2020,  as well as that investigation of sexual abuse.\" 1 On June 28, 2023,  ISP responded\nby denying the request as an unduly burdensome repeated request under section 3(g) of FOIA ( 5\nILCS 140/ 3(g) (West 2022));  ISP stated that\nrecords on June 12, 2023,  and that it had responded to that request on June 27, 2023,  under file\nno. 05915686.   On June 30, 2023, \nReview asking for assistance in obtaining documentation regarding the initial Children' s\nAdvocacy Center ( CAC)  interview of her child in December 2020. \n\nsubmitted the above- referenced Request for\n\nhad made a request for the same\n\n1FOIA Request from\n\nto ISP FOIA (June 14, 2023).  \n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Rhiann M. Martynowski\nOctober 5, 2023\nPage 2\n\nOn July 13, 2023,  this office sent a copy of the Request for Review to ISP and\n\nasked it to provide a detailed written explanation for denying\nrequest an unduly burdensome repeated request under section 3(g).  This office asked ISP to\nexplain when it either previously provided or properly denied the same records\nrequested on June 14, 2023,  and to provide evidence of the previous response.   On July 21, 2023, \nwith copies of paper records\nISP responded,  asserting that it previously provided\nresponsive to her request on June 27, 2023,  and that it advised\nof its backlog of\nvideo requests on June 26, 2023.   ISP also attached copies of its May 11, 2023,  and June 27, \nwhich both included links to responsive records.   That same\n2023,  responses to\nday, this office forwarded a copy of ISP's written response to\n\nJune 14, 2023,  FOIA\n\nOn July 24, 2023, \n\nsubmitted a reply. \n\nOn July 26, 2023,  an Assistant Attorney General ( AAG) in the Public Access\nBureau contacted ISP to clarify which of the records in its May 11, 2023,  and June 27, 2023, \nresponses to\nwere the records from the forensic interview of her child in December\n2020.   That same day, ISP responded by identifying certain pages of the response to FOIA no. \n05892001 ( the response provided on May 11, 2023),  and,  for the first time, asserted that video( s) \nof the forensic interview were exempt pursuant to section 7.5(tt) of FOIA. 2 On August 21, 2023, \nafter additional follow- up by the AAG, ISP stated that \"[ t]he entire ISP investigative file (that is\navailable for release via FOIA minus the forensic interviews and medical records)  has been\nprovided to the requester[,]\" \npages). 3 On that same date,  ISP re-sent links to those two sets of records to\n\nthrough ISP request nos. 05892001 ( 259 pages)  and 05915686 ( 482\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2022);  see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 ( 2006).   A public body \" has the burden\nof proving by clear and convincing evidence\"  that a record is exempt from disclosure.   5 ILCS\n140/ 1.2 (West 2022). \n\nAs an initial matter,  the Public Access Counselor' s authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act (5 ILCS 120/ 1 et seq. ( West\n2022)).   See 15 ILCS 205/ 7(c)(3) (West 2022).   FOIA governs the disclosure of public records in\na public body's possession;  an allegation that a public body should have,  but did not, obtain\n\n034, effective June 9, 2023. \n\n25 ILCS 140/ 7.5(tt) (West 2022),  as amended by Public Acts 103- 008, effective June 7, 2023;  103-\n\nDirector,  Illinois State Police,  to [ Katie]  Goldsmith ( August 21, 2023).  \n\n3E- mail from Rhiann M. Martynowski,  Executive I – FOIA Appeals Manager,  Office of the\n\n\fMs. Rhiann M. Martynowski\nOctober 5, 2023\nPage 3\n\ncertain records or choose to include certain documentation in a particular file does not indicate\nthat the public body violated FOIA because it does not suggest that the public body improperly\nwithheld records.   Similarly,  the Public Access Bureau does not have the authority to intervene\nin ISP or Department of Children and Family Services ( DCFS)  investigations.   Therefore,  this\noffice is unable to assist with those matters,  and this letter is limited to analyzing whether ISP\nresponded improperly to\n\nJune 14, 2023,  FOIA request. \n\nSection 3(g) of FOIA provides,  in pertinent part, that \"[ r]epeated requests from\n\nthe same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\"  ( Emphasis added.) \n\nThis office' s review of the records that ISP previously provided\n\nand\n\nagain on August 21, 2023,  confirmed that ISP disclosed the\n\nprovided to\ninvestigative report from the forensic interview of her child in December 2020 ( pages 253- 54 of\nthe 259-page PDF).   With respect to\nchildren have had outlines of the CAC interview included in the investigative report.  This one\nsimply says that no full disclosure was made[,]\" 4 there is no indication that ISP withheld an\noutline of the interview.   Rather,  the narrative of the report suggests that no such outline was\never made for this interview: \n\nclaim that \"[ o] ther investigations of my\n\nBelow is an interview summary.  It is not intended to be a verbatim\naccount and does not memorialize all statements made during the\ninterview.  Communications by the parties were electronically\nrecorded onto a digital video recorder.  The DVD recording\ncaptures the actual words spoken.[ 5] \n\nA public body is not required to create new records to comply with a FOIA request.   Kenyon v. \nGarrels, 184 Ill. App. 3d 28, 32 (1989).   Instead, \"[ a]  requester is entitled only to records that an\nagency has in fact chosen to create and retain.\"   Yeager v. Drug Enforcement Administration, \n678 F.2d 315, 321 ( D.C. Cir. 1982).   Under these circumstances,  this office is unable to conclude\nthat ISP failed to disclose written records of that forensic interview. \n\nAs to video footage of the forensic interview,  ISP acknowledged that there was\n\nvideo footage responsive to\ngrant or deny the video.   Rather,  ISP stated: \n\nrequest in its June 26, 2023,  denial letter, but did not\n\n4E- mail from\n\nto Public Access [ Bureau] ( June 30, 2023).  \n\nIllinois,  Case no. 20- 41655200401,  December 22, 2020. \n\n5Investigative Police Report,  Illinois State Police,  Master Sgt. William Sandusky,  Effingham, \n\n\fMs. Rhiann M. Martynowski\nOctober 5, 2023\nPage 4\n\nA reasonable search for the requested video was conducted and\nISP found video responsive to your request. \n\nISP currently has a backlog of video requests which have\nalready been paid for and are still in process.  Accordingly,  your\nrequest is on hold and has been placed on the waitlist in the order\nin which it was received.  To ensure video requests are completed\ntimely upon receipt of payment,  we will only be accepting\npayment as they come up on the waitlist.  At that time, you will be\nsent a CD/DVD Request Form for your request.  We will respond\nto your video request as soon as possible.  Thank you for your\npatience and understanding.[ 6] \n\nOn July 26, 2023,  ISP confirmed to this office that there was video responsive to\nrequest of a forensic interview of her child, but that it was withholding that video\n\nin which it re-\nunder section 7.5(tt) of FOIA.  In ISP's August 21, 2023,  e-mail to\nsent the two PDFs of records,  ISP also notified her for the first time that it would withhold any\nvideo recordings of the forensic interview under section 7.5(tt): \n\nISP currently has an extensive backlog for video requests.   Once\nwe're able to process your request,  we will provide you with a\nCD/DVD Request Form along with payment instructions.   Any\nCAC interview videos will not be released pursuant to Section\n7.5(tt) of FOIA and the Children' s Advocacy Center Act (\" A\nforensic interview,  an electronic recording,  or a forensic interview\ntranscription or electronic recording is confidential and exempt\nfrom public inspection and copying under Section 7.5 of the\nFreedom of Information Act and may only be viewed by a court, \nattorneys,  investigators,  or experts for the purpose of judicial and\nadministrative hearings and shall not be disseminated except\npursuant to a court' s protective order.\"  55 ILCS 80/4.5(b)).   If it is\ndetermined that ISP only maintains video related to the forensic\ninterviews,  you will receive a supplemental response advising that\nyou request is denied in its entirety[.][ 7] \n\nOfficer,  to meredith. gardner90@gmail. com (June 26, 2023). \n\n6E- mail from Illinois State Police,  Freedom of Information Act Unit, Sarah Wheeler –  FOIA\n\nIllinois State Police,  to meredith. gardner90@gmail. com ( August 21, 2023).  \n\n7E- mail from Rhiann Martynowski,  Executive I – FOIA Appeals Manager,  Office of the Director,  \n\n\fMs. Rhiann M. Martynowski\nOctober 5, 2023\nPage 5\n\nSection 7.5(tt) of FOIA exempts from disclosure \"[ r]ecordings made under the\n\nChildren' s Advocacy Center Act, except to the extent authorized under that Act.\"  \nCorrespondingly,  section 4.5(b) of the Children' s Advocacy Center Act (55 ILCS 80/4.5(b) \nWest 2022))  provides: \n\nA forensic interview,  an electronic recording,  or a forensic\ninterview transcription or electronic recording is confidential and\nexempt from public inspection and copying under Section 7.5 of\nthe Freedom of Information Act and may only be viewed by a\ncourt,  attorneys,  investigators,  or experts for the purpose of judicial\nand administrative hearings and shall not be disseminated except\npursuant to a court' s protective order. \n\nBy its plain language,  this provision specifically prohibits disclosure of video recordings of CAC\nforensic interviews.   This provision contains no exception allowing disclosure to a parent of a\nminor subject of a forensic interview.   Accordingly,  ISP does not violate FOIA by withholding\nresponsive video( s)  of a CAC forensic interview under section 7.5(tt). \n\nNonetheless,  ISP's current response process for FOIA requests for copies of video\nrecordings clearly does not meet the requirements of FOIA.   ISP's July 21, 2023,  response letter\nto this office stated:  \n\nISP receives on average over 550 FOIA requests each\n\nmonth.   ISP does not maintain the resources to compile,  review, \nredact,  and subsequently produce every record responsive to every\nFOIA request in 10 business days.   In an effort to comply with\nsection 3(d) of FOIA, which mandates a response within 5\nbusiness days,  ISP sends requesters detailed communications to\nkeep them apprised of the status of their request if it is not handled\ncompletely within the 10 days.[ 8]  \n\nISP has misapplied the plain language of section 3(d) of FOIA ( 5 ILCS 140/ 3(d) (West 2022)), \nwhich provides,  in relevant part, that \"[ e] ach public body shall, promptly,  either comply with or\ndeny a request for public records within 5 business days after its receipt of the request,  unless the\ntime for response is properly extended under subsection ( e)  of this Section.\"   Section 3(d) does\nnot merely require that a public body provide \" a response\";  it requires the public body to comply\nwith the request by disclosing records,  deny the request pursuant to exemptions set forth in\n\nGoldsmith,  Assistant Attorney General,  Public Access Bureau ( July 21, 2023),  at [ 2]. \n\n8Letter from Amelia Finch,  Technical Advisor III, Illinois State Police,  Legal Office, to Katie\n\n\fMs. Rhiann M. Martynowski\nOctober 5, 2023\nPage 6\n\nFOIA, or extend its time to respond by \" not more than 5 business days\"  pursuant to section 3(e) \n5 ILCS 140/ 3(e) ( West 2022)).   FOIA does not permit a public body to further extend its time to\nrespond to a FOIA request absent the requester' s written agreement.   See 5 ILCS 140/ 3(e) ( West\n2022).   ISP did not assert or provide information suggesting that\nagreed in writing\nto an indefinite extension of ISP's time to grant or deny the portion of her request for video\nfootage.   \n\nSection 1 of FOIA ( 5 ILCS 140/ 1 (West 2022))  declares: \n\nThe General Assembly recognizes that this Act imposes\nfiscal obligations on public bodies to provide adequate staff and\nequipment to comply with its requirements.  The General Assembly\ndeclares that providing records in compliance with the\nrequirements of this Act is a primary duty of public bodies to the\npeople of this State,  and this Act should be construed to this end, \nfiscal obligations notwithstanding. \n\nThis provision signifies that the General Assembly expressly rejected the notion that a public\nbody may refuse to timely grant or deny a request in writing due to a claim of insufficient\nresources.   FOIA requires ISP to devote adequate staff and equipment to processing FOIA\nrequests rather than indefinitely delaying responses to requests for video recordings by alluding\nto the large number of such requests that ISP receives.   This office reminds ISP that the\nrequirements of sections 3(d) and 3(e)  of FOIA are mandatory.   \n\nThe Public Access Counselor has determined that resolution of this issue does not\nrequire the issuance of a binding opinion.   This letter serves to close the matter.   If you have any\nquestions,  please contact me at katherine. goldsmith@ilag. gov or the Chicago address listed on\nthe first page of this letter. \n\nVery truly yours, \n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n\n77159 f 3g rep req proper improper pd sa\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A forensic interview report in a child sexual abuse investigation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":"closed_no_further_action","plain_summary_pre_audit_fix":"A citizen requested records from the Illinois State Police, including a forensic interview report and video of her child. The agency initially denied the request as a duplicate, but later asserted that video recordings of the forensic interview were exempt under section 7.5(tt) of FOIA and the Children's Advocacy Center Act. The Attorney General's office determined that the written investigative report had been provided, and that the agency did not violate FOIA by withholding the video under the cited exemption.","human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77159/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 5, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Rhiann M. Martynowski\nExecutive I – FOIA Appeals Manager\nOffice of the Director\nIllinois State Police\n801 South Seventh Street, Suite 1000- S\nSpringfield, Illinois 62703\nISP.FOIA.Officer@illinois. gov\n\nRE: FOIA Request for Review – 2023 PAC 77159; ISP no. 05916831\n\nDear\n\nand Ms. Martynowski: \n\nThis determination letter is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). \n\nOn June 14, 2023, \n\nsubmitted a FOIA request to the Illinois\n\nState Police (ISP) seeking \"[ a] report from the forensic interview of [her child] which occurred\non 12/21/2020, as well as that investigation of sexual abuse.\" 1 On June 28, 2023, ISP responded\nby denying the request as an unduly burdensome repeated request under section 3(g) of FOIA (5\nILCS 140/ 3(g) (West 2022)); ISP stated that\nrecords on June 12, 2023, and that it had responded to that request on June 27, 2023, under file\nno. 05915686. On June 30, 2023, \nReview asking for assistance in obtaining documentation regarding the initial Children's\nAdvocacy Center (CAC) interview of her child in December 2020. \n\nsubmitted the above- referenced Request for\n\nhad made a request for the same\n\n1FOIA Request from\n\nto ISP FOIA (June 14, 2023). \n\nOn July 13, 2023, this office sent a copy of the Request for Review to ISP and\n\nasked it to provide a detailed written explanation for denying\nrequest an unduly burdensome repeated request under section 3(g). This office asked ISP to\nexplain when it either previously provided or properly denied the same records\nrequested on June 14, 2023, and to provide evidence of the previous response. On July 21, 2023, \nwith copies of paper records\nISP responded, asserting that it previously provided\nresponsive to her request on June 27, 2023, and that it advised\nof its backlog of\nvideo requests on June 26, 2023. ISP also attached copies of its May 11, 2023, and June 27, \nwhich both included links to responsive records. That same\n2023, responses to\nday, this office forwarded a copy of ISP's written response to\n\nJune 14, 2023, FOIA\n\nOn July 24, 2023, \n\nsubmitted a reply. \n\nOn July 26, 2023, an Assistant Attorney General (AAG) in the Public Access\nBureau contacted ISP to clarify which of the records in its May 11, 2023, and June 27, 2023, \nresponses to\nwere the records from the forensic interview of her child in December\n2020. That same day, ISP responded by identifying certain pages of the response to FOIA no. \n05892001 (the response provided on May 11, 2023), and, for the first time, asserted that video(s) \nof the forensic interview were exempt pursuant to section 7.5(tt) of FOIA. 2 On August 21, 2023, \nafter additional follow- up by the AAG, ISP stated that \"[ t]he entire ISP investigative file (that is\navailable for release via FOIA minus the forensic interviews and medical records) has been\nprovided to the requester[,]\" \npages). 3 On that same date, ISP re-sent links to those two sets of records to\n\nthrough ISP request nos. 05892001 (259 pages) and 05915686 (482\n\nDETERMINATION\n\nAll records in the custody or possession of a public body are presumed to be\nopen to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Department of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden\nof proving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2022). \n\nAs an initial matter, the Public Access Counselor's authority to resolve disputes is\n\nlimited to alleged violations of FOIA and the Open Meetings Act (5 ILCS 120/ 1 et seq. (West\n2022)). See 15 ILCS 205/ 7(c)(3) (West 2022). FOIA governs the disclosure of public records in\na public body's possession; an allegation that a public body should have, but did not, obtain\n\n034, effective June 9, 2023. \n\n25 ILCS 140/ 7.5(tt) (West 2022), as amended by Public Acts 103- 008, effective June 7, 2023; 103-\n\ncertain records or choose to include certain documentation in a particular file does not indicate\nthat the public body violated FOIA because it does not suggest that the public body improperly\nwithheld records. Similarly, the Public Access Bureau does not have the authority to intervene\nin ISP or Department of Children and Family Services (DCFS) investigations. Therefore, this\noffice is unable to assist with those matters, and this letter is limited to analyzing whether ISP\nresponded improperly to\n\nJune 14, 2023, FOIA request. \n\nSection 3(g) of FOIA provides, in pertinent part, that \"[ r]epeated requests from\n\nthe same person for the same records that are unchanged or identical to records previously\nprovided or properly denied under this Act shall be deemed unduly burdensome under this\nprovision.\" (Emphasis added.) \n\nThis office's review of the records that ISP previously provided\n\nand\n\nagain on August 21, 2023, confirmed that ISP disclosed the\n\nprovided to\ninvestigative report from the forensic interview of her child in December 2020 (pages 253- 54 of\nthe 259-page PDF). With respect to\nchildren have had outlines of the CAC interview included in the investigative report. This one\nsimply says that no full disclosure was made[,]\" 4 there is no indication that ISP withheld an\noutline of the interview. Rather, the narrative of the report suggests that no such outline was\never made for this interview: \n\nclaim that \"[ o] ther investigations of my\n\nBelow is an interview summary. It is not intended to be a verbatim\naccount and does not memorialize all statements made during the\ninterview. Communications by the parties were electronically\nrecorded onto a digital video recorder. The DVD recording\ncaptures the actual words spoken.[ 5] \n\nA public body is not required to create new records to comply with a FOIA request. Kenyon v. \nGarrels, 184 Ill. App. 3d 28, 32 (1989). Instead, \"[ a] requester is entitled only to records that an\nagency has in fact chosen to create and retain.\" Yeager v. Drug Enforcement Administration, \n678 F.2d 315, 321 (D.C. Cir. 1982). Under these circumstances, this office is unable to conclude\nthat ISP failed to disclose written records of that forensic interview. \n\nAs to video footage of the forensic interview, ISP acknowledged that there was\n\nvideo footage responsive to\ngrant or deny the video. Rather, ISP stated: \n\nrequest in its June 26, 2023, denial letter, but did not\n\n4E- mail from\n\nto Public Access [ Bureau] (June 30, 2023). \n\nIllinois, Case no. 20- 41655200401, December 22, 2020. \n\n5 Investigative Police Report, Illinois State Police, Master Sgt. William Sandusky, Effingham, \n\nA reasonable search for the requested video was conducted and\nISP found video responsive to your request. \n\nISP currently has a backlog of video requests which have\nalready been paid for and are still in process. Accordingly, your\nrequest is on hold and has been placed on the waitlist in the order\nin which it was received. To ensure video requests are completed\ntimely upon receipt of payment, we will only be accepting\npayment as they come up on the waitlist. At that time, you will be\nsent a CD/DVD Request Form for your request. We will respond\nto your video request as soon as possible. Thank you for your\npatience and understanding.[ 6] \n\nOn July 26, 2023, ISP confirmed to this office that there was video responsive to\nrequest of a forensic interview of her child, but that it was withholding that video\n\nin which it re-\nunder section 7.5(tt) of FOIA. In ISP's August 21, 2023, e-mail to\nsent the two PDFs of records, ISP also notified her for the first time that it would withhold any\nvideo recordings of the forensic interview under section 7.5(tt): \n\nISP currently has an extensive backlog for video requests. Once\nwe're able to process your request, we will provide you with a\nCD/DVD Request Form along with payment instructions. Any\nCAC interview videos will not be released pursuant to Section\n7.5(tt) of FOIA and the Children's Advocacy Center Act (\" A\nforensic interview, an electronic recording, or a forensic interview\ntranscription or electronic recording is confidential and exempt\nfrom public inspection and copying under Section 7.5 of the\nFreedom of Information Act and may only be viewed by a court, \nattorneys, investigators, or experts for the purpose of judicial and\nadministrative hearings and shall not be disseminated except\npursuant to a court's protective order.\" 55 ILCS 80/4.5(b)). If it is\ndetermined that ISP only maintains video related to the forensic\ninterviews, you will receive a supplemental response advising that\nyou request is denied in its entirety[.][ 7] \n\nOfficer, to meredith. gardner90@gmail. com (June 26, 2023). \n\n6E- mail from Illinois State Police, Freedom of Information Act Unit, Sarah Wheeler – FOIA\n\nIllinois State Police, to meredith. gardner90@gmail. com (August 21, 2023). \n\n7E- mail from Rhiann Martynowski, Executive I – FOIA Appeals Manager, Office of the Director, \n\nSection 7.5(tt) of FOIA exempts from disclosure \"[ r]ecordings made under the\n\nChildren's Advocacy Center Act, except to the extent authorized under that Act.\" \nCorrespondingly, section 4.5(b) of the Children's Advocacy Center Act (55 ILCS 80/4.5(b) \nWest 2022)) provides: \n\nA forensic interview, an electronic recording, or a forensic\ninterview transcription or electronic recording is confidential and\nexempt from public inspection and copying under Section 7.5 of\nthe Freedom of Information Act and may only be viewed by a\ncourt, attorneys, investigators, or experts for the purpose of judicial\nand administrative hearings and shall not be disseminated except\npursuant to a court's protective order. \n\nBy its plain language, this provision specifically prohibits disclosure of video recordings of CAC\nforensic interviews. This provision contains no exception allowing disclosure to a parent of a\nminor subject of a forensic interview. Accordingly, ISP does not violate FOIA by withholding\nresponsive video(s) of a CAC forensic interview under section 7.5(tt). \n\nNonetheless, ISP's current response process for FOIA requests for copies of video\nrecordings clearly does not meet the requirements of FOIA. ISP's July 21, 2023, response letter\nto this office stated: \n\nISP receives on average over 550 FOIA requests each\n\nmonth. ISP does not maintain the resources to compile, review, \nredact, and subsequently produce every record responsive to every\nFOIA request in 10 business days. In an effort to comply with\nsection 3(d) of FOIA, which mandates a response within 5\nbusiness days, ISP sends requesters detailed communications to\nkeep them apprised of the status of their request if it is not handled\ncompletely within the 10 days.[ 8] \n\nISP has misapplied the plain language of section 3(d) of FOIA (5 ILCS 140/ 3(d) (West 2022)), \nwhich provides, in relevant part, that \"[ e] ach public body shall, promptly, either comply with or\ndeny a request for public records within 5 business days after its receipt of the request, unless the\ntime for response is properly extended under subsection (e) of this Section.\" Section 3(d) does\nnot merely require that a public body provide \" a response\"; it requires the public body to comply\nwith the request by disclosing records, deny the request pursuant to exemptions set forth in\n\nGoldsmith, Assistant Attorney General, Public Access Bureau (July 21, 2023), at [ 2]. \n\n8 Letter from Amelia Finch, Technical Advisor III, Illinois State Police, Legal Office, to Katie\n\nFOIA, or extend its time to respond by \" not more than 5 business days\" pursuant to section 3(e) \n5 ILCS 140/ 3(e) (West 2022)). FOIA does not permit a public body to further extend its time to\nrespond to a FOIA request absent the requester's written agreement. See 5 ILCS 140/ 3(e) (West\n2022). ISP did not assert or provide information suggesting that\nagreed in writing\nto an indefinite extension of ISP's time to grant or deny the portion of her request for video\nfootage. \n\nSection 1 of FOIA (5 ILCS 140/ 1 (West 2022)) declares: \n\nThe General Assembly recognizes that this Act imposes\nfiscal obligations on public bodies to provide adequate staff and\nequipment to comply with its requirements. The General Assembly\ndeclares that providing records in compliance with the\nrequirements of this Act is a primary duty of public bodies to the\npeople of this State, and this Act should be construed to this end, \nfiscal obligations notwithstanding. \n\nThis provision signifies that the General Assembly expressly rejected the notion that a public\nbody may refuse to timely grant or deny a request in writing due to a claim of insufficient\nresources. FOIA requires ISP to devote adequate staff and equipment to processing FOIA\nrequests rather than indefinitely delaying responses to requests for video recordings by alluding\nto the large number of such requests that ISP receives. This office reminds ISP that the\nrequirements of sections 3(d) and 3(e) of FOIA are mandatory. \n\nThe Public Access Counselor has determined that resolution of this issue does not\nrequire the issuance of a binding opinion. This letter serves to close the matter. If you have any\nquestions, please contact me at katherine. goldsmith@ilag. gov or the Chicago address listed on\nthe first page of this letter. \n\nVery truly yours, \n\nKATIE GOLDSMITH\nAssistant Attorney General\nPublic Access Bureau\n\n77159 f 3g rep req proper improper pd sa"}
{"id":1014,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-10-10","case_number":null,"request_numbers":["77169"],"title":"City of Chicago Office of the Mayor did not violate FOIA after offering opportunity to narrow burdensome request","filename":"77169, issued October 10, 2023.pdf","rel_path":null,"word_count":1384,"summary":"The requester challenged the City of Chicago's denial of a FOIA request as unduly burdensome, but the PAC found the City did not violate FOIA because the requester failed to engage in the required consultation process to narrow the request.","plain_summary":"A citizen requested records from the City of Chicago regarding the removal of homeless individuals from O'Hare Airport. The City denied the request as unduly burdensome after finding over 3,000 emails and offered the requester a chance to discuss narrowing the request via email. The requester did not respond to that offer before filing a complaint. The Illinois Public Access Bureau determined that because the City provided an opportunity to confer, it did not violate FOIA, and closed the case.","holding":"The City of Chicago did not violate FOIA because it provided the requester with an opportunity to confer, as required by section 3(g), and the requester did not engage further.","legal_question":"Whether a public body violates section 3(g) of FOIA by denying a request as unduly burdensome without first providing the requester an opportunity to narrow the request.","disposition":"no_violation","primary_statute":["5 ILCS 140/3(g)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Chicago Office of the Mayor","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"unduly burdensome","subject_description":"The request sought records related to the removal of homeless individuals from O'Hare Airport.","ocr_status":"ok","ocr_quality":91.5,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/3/3_g/Duty-to-Confer/77169%2C%20issued%20October%2010%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["unduly burdensome","narrowing request","FOIA request","City of Chicago"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 10, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Tom Skelton\nOffice of the Mayor\nCity of Chicago\n121 North LaSalle Street,  Suite 500\nChicago, Illinois 60601\nthomas. skelton@cityofchicago. org\n\nRE:   FOIA Request for Review –  2023 PAC 77169\n\nDear\n\nand Mr. Skelton: \n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2022)).  For the reasons set forth below, the\nPublic Access Bureau concludes that the response by the City of Chicago Office of the Mayor\nMay 28, 2023, FOIA request did not violate FOIA. \nMayor's Office) to\n\nOn that date, \n\nsubmitted a FOIA request to the Mayor's Office\n\nseeking records related to the removal of homeless individuals from O'Hare Airport.   On June 6, \n2023, the Mayor's Office extended its time to respond to the request by five business days\npursuant to section 3(e)  of FOIA ( 5 ILCS 140/ 3(e) ( West 2022)).   On June 13,  2023,  the Mayor' s\nOffice responded by asserting that compliance with the request would be unduly burdensome\npursuant to section 3(g)  of FOIA ( 5 ILCS 140/ 3(g) ( West 2022)).   On that same date, \n\nreplied that he would like to confer with the Mayor' s Office to narrow his request and\nalso offered to exclude communications advising employees of news article clippings.  On July\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street, Chicago, Illinois 60601 • ( 312) 814-3000 • TTY: (800) 964-3013 • Fax: (312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 • TTY: (877) 675-9339 • Fax: ( 618) 529-6416\n\n\fMr. Tom Skelton\nOctober 10,  2023\nPage 2\n\n3, 2023, \nMayor's Office had not provided him with an opportunity to confer to narrow his request. \n\nsubmitted the above- referenced Request for Review alleging that the\n\nOn July 12, 2023, the Public Access Bureau forwarded a copy of the Request for\n\nReview to the Mayor' s Office and asked it to provide a written response to\nallegation, including a description of any efforts by the Mayor's Office to provide\nwith an opportunity to narrow his request.   On July 21,  2023,  the Mayor' s Office provided its\nwritten answer.  On that same date, this office forwarded the Mayor's Office's response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\"  5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Dept.  of Public Health,  218 Ill. 2d 390,  415 ( 2006).   A public body \" has the burden of\nproving by clear and convincing evidence\"  that a record is exempt from disclosure.  5 ILCS\n140/ 1.2 (West 2020). \n\nSection 3(g) of FOIA provides,  in relevant part: \n\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption,  the public body shall extend to the person\nmaking the request an opportunity to confer with it in an\nattempt to reduce the request to manageable proportions.  \nEmphasis added.) \n\nIn its response to this office, the Mayor's Office argues that it \"provided\n\nopportunities to confer regarding his FOIA request,  but\n\ndid not avail\n\nhimself of these opportunities.\" 1 As part of its response, the Mayor's Office included an\nadditional e- mail that its FOIA Officer sent to\n\non June 13,  2023,  stating that\n\noffer to exclude news clippings would not sufficiently narrow his request.  This e-\n\nmail also included an offer to answer other questions and to discuss the matter.   This appears to\n\nAttorney General, Public Access Bureau, Office of the Attorney General (July 21, 2023) at 4. \n\n1Letter from Tom Skelton, FOIA Officer, Office of the Mayor to Benjamin Silver, Assistant\n\n\fMr. Tom Skelton\nOctober 10,  2023\nPage 3\n\nbe the last e- mail on this matter between the Mayor' s Office and\nOffice stated that he did not respond to its offer to confer. \n\nas the Mayor' s\n\nIn his Request for Review and his correspondence with the Mayor's Office, \nargued,  citing Ill. Att'y Gen.  Pub.  Acc.  Op.  No. 23- 007,  issued May 26, 2023,  that the\n\nMayor's Office has an obligation to determine which employees may have sent or received\nresponsive correspondence and to ascertain the personnel who could provide keywords for the\nsearch.  In that binding opinion, the Attorney General found that \"public employees and officials\nwho are knowledgeable about the operations of their public body are in a better position than\nmembers of the public to know which employees and officials are likely to have sent or received\ne-mails about particular subjects.\"   Ill. Att'y Gen.  Pub.  Acc.  Op.  No. 23- 007,  issued May 26, \n2023, at 7-8.   However, the public body in that case improperly denied a FOIA request as\nunduly burdensome when it insisted that a requester provide the names of employees or their e-\nmail address before conducting any search. \n\nHere, the Mayor's Office did not refuse to conduct a search without\nproviding the names or e- mail addresses of employees.   Rather,  the Mayor' s Office conducted a\nsearch utilizing keywords from\nrequest and a list of employees that it determined\nmay have sent or received responsive correspondence,  but the search returned over 3,000 e-mails\nand attachments.   The Mayor' s Office relayed this information to\nJune 13, 2023, response to his FOIA request.  Accordingly, the Mayor's Office did not require\n\nas part of its\n\nto provide a list of names or e- mail addresses in order to conduct a search in\n\nresponse to his request. \n\nfurther suggested that a public body must schedule a conference to\n\nnarrow to comply with the provisions of section 3(g).   The Open Meetings Act provides that a\npublic body must extend \"an opportunity to confer,\" but does not mandate what that opportunity\nentails.   The Illinois Appellate Court has advised that section 3(g) requires a public body to\nengage in a \" good-faith dialogue\" when the requester seeks \" an opportunity to confer\" about\nnarrowing a request to manageable proportions.   Sargent Shriver National Center on Poverty\nLaw, Inc. v. Board of Education of City of Chicago, 2018 IL App (1st) 171846, ¶34, 122 N.E.3d\n729,  737 ( 2018).   The Attorney General has previously determined that \" the plain and ordinary\nmeaning of 'an opportunity to confer' is a chance to engage in dialogue.\"  Ill. Att'y Gen. Pub. \nAcc.  Op.  No. 21- 001,  issued January 26,  2021,  at 10.   See American Heritage Dictionary 872 ( 2d\ncoll. ed. 1982) (Defining \"Confer\" as \"[ t]o hold a conference; to consult with one another.\"  \nEmphasis added.)   Black' s Law Dictionary ( 11th ed.  2019),  available at Westlaw BLACKS.  \nThus, while a public body may meet its obligation under section 3(g) by scheduling a\nconference,  it may also meet its obligation by providing a chance to consult with the requester\nthrough another means, including e-mail correspondence. \n\n\fMr. Tom Skelton\nOctober 10,  2023\nPage 4\n\nThe Mayor' s Office' s response to this office indicates that its last correspondence\n\nwith\nexclude news clippings did not sufficiently narrow his request.   The Mayor' s Office offered him\nfurther opportunity to discuss the matter.  This office has not received evidence that\n\ninformed him, in response to his last e-mail to that office, that his offer to\n\nengaged the Mayor' s Office in further discussion before submitting this Request for\nReview.  Under these circumstances, this office is unable to conclude that the Mayor's Office\nviolated section 3(g) of FOIA by failing to provide\nbefore denying his May 28, 2023, FOIA request as unduly burdensome. \n\nwith an opportunity to confer\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions, please contact me at (773) 590-7878 or benjamin.silver@ilag.gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n77169 f 3g proper mun\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"Records about removal of homeless individuals from an airport","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77169/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nOctober 10, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMr. Tom Skelton\nOffice of the Mayor\nCity of Chicago\n121 North LaSalle Street, Suite 500\nChicago, Illinois 60601\nthomas. skelton@cityofchicago. org\n\nRE: FOIA Request for Review – 2023 PAC 77169\n\nDear\n\nand Mr. Skelton: \n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2022)). For the reasons set forth below, the\nPublic Access Bureau concludes that the response by the City of Chicago Office of the Mayor\nMay 28, 2023, FOIA request did not violate FOIA. \nMayor's Office) to\n\nOn that date, \n\nsubmitted a FOIA request to the Mayor's Office\n\nseeking records related to the removal of homeless individuals from O'Hare Airport. On June 6, \n2023, the Mayor's Office extended its time to respond to the request by five business days\npursuant to section 3(e) of FOIA (5 ILCS 140/ 3(e) (West 2022)). On June 13, 2023, the Mayor's\nOffice responded by asserting that compliance with the request would be unduly burdensome\npursuant to section 3(g) of FOIA (5 ILCS 140/ 3(g) (West 2022)). On that same date, \n\nreplied that he would like to confer with the Mayor's Office to narrow his request and\nalso offered to exclude communications advising employees of news article clippings. On July\n\n3, 2023, \nMayor's Office had not provided him with an opportunity to confer to narrow his request. \n\nsubmitted the above- referenced Request for Review alleging that the\n\nOn July 12, 2023, the Public Access Bureau forwarded a copy of the Request for\n\nReview to the Mayor's Office and asked it to provide a written response to\nallegation, including a description of any efforts by the Mayor's Office to provide\nwith an opportunity to narrow his request. On July 21, 2023, the Mayor's Office provided its\nwritten answer. On that same date, this office forwarded the Mayor's Office's response to\n\nhe did not reply. \n\nDETERMINATION\n\nAll public records in the possession or custody of a public body are \" presumed to\nbe open to inspection or copying.\" 5 ILCS 140/1.2 (West 2022); see also Southern Illinoisan v. \nIllinois Dept. of Public Health, 218 Ill. 2d 390, 415 (2006). A public body \" has the burden of\nproving by clear and convincing evidence\" that a record is exempt from disclosure. 5 ILCS\n140/ 1.2 (West 2020). \n\nSection 3(g) of FOIA provides, in relevant part: \n\nRequests calling for all records falling within a category\nshall be complied with unless compliance with the request would\nbe unduly burdensome for the complying public body and there is\nno way to narrow the request and the burden on the public body\noutweighs the public interest in the information. Before invoking\nthis exemption, the public body shall extend to the person\nmaking the request an opportunity to confer with it in an\nattempt to reduce the request to manageable proportions. \nEmphasis added.) \n\nIn its response to this office, the Mayor's Office argues that it \"provided\n\nopportunities to confer regarding his FOIA request, but\n\ndid not avail\n\nhimself of these opportunities.\" 1 As part of its response, the Mayor's Office included an\nadditional e- mail that its FOIA Officer sent to\n\non June 13, 2023, stating that\n\noffer to exclude news clippings would not sufficiently narrow his request. This e-\n\nmail also included an offer to answer other questions and to discuss the matter. This appears to\n\nAttorney General, Public Access Bureau, Office of the Attorney General (July 21, 2023) at 4. \n\nbe the last e- mail on this matter between the Mayor's Office and\nOffice stated that he did not respond to its offer to confer. \n\nas the Mayor's\n\nIn his Request for Review and his correspondence with the Mayor's Office, \nargued, citing Ill. Att'y Gen. Pub. Acc. Op. No. 23- 007, issued May 26, 2023, that the\n\nMayor's Office has an obligation to determine which employees may have sent or received\nresponsive correspondence and to ascertain the personnel who could provide keywords for the\nsearch. In that binding opinion, the Attorney General found that \"public employees and officials\nwho are knowledgeable about the operations of their public body are in a better position than\nmembers of the public to know which employees and officials are likely to have sent or received\ne-mails about particular subjects.\" Ill. Att'y Gen. Pub. Acc. Op. No. 23- 007, issued May 26, \n2023, at 7-8. However, the public body in that case improperly denied a FOIA request as\nunduly burdensome when it insisted that a requester provide the names of employees or their e-\nmail address before conducting any search. \n\nHere, the Mayor's Office did not refuse to conduct a search without\nproviding the names or e- mail addresses of employees. Rather, the Mayor's Office conducted a\nsearch utilizing keywords from\nrequest and a list of employees that it determined\nmay have sent or received responsive correspondence, but the search returned over 3,000 e-mails\nand attachments. The Mayor's Office relayed this information to\nJune 13, 2023, response to his FOIA request. Accordingly, the Mayor's Office did not require\n\nas part of its\n\nto provide a list of names or e- mail addresses in order to conduct a search in\n\nresponse to his request. \n\nfurther suggested that a public body must schedule a conference to\n\nnarrow to comply with the provisions of section 3(g). The Open Meetings Act provides that a\npublic body must extend \"an opportunity to confer,\" but does not mandate what that opportunity\nentails. The Illinois Appellate Court has advised that section 3(g) requires a public body to\nengage in a \" good-faith dialogue\" when the requester seeks \" an opportunity to confer\" about\nnarrowing a request to manageable proportions. Sargent Shriver National Center on Poverty\nLaw, Inc. v. Board of Education of City of Chicago, 2018 IL App (1st) 171846, ¶34, 122 N.E.3d\n729, 737 (2018). The Attorney General has previously determined that \" the plain and ordinary\nmeaning of 'an opportunity to confer' is a chance to engage in dialogue.\" Ill. Att'y Gen. Pub. \nAcc. Op. No. 21- 001, issued January 26, 2021, at 10. See American Heritage Dictionary 872 (2d\ncoll. ed. 1982) (Defining \"Confer\" as \"[ t]o hold a conference; to consult with one another.\" \nEmphasis added.) Black's Law Dictionary (11th ed. 2019), available at Westlaw BLACKS. \nThus, while a public body may meet its obligation under section 3(g) by scheduling a\nconference, it may also meet its obligation by providing a chance to consult with the requester\n\nThe Mayor's Office's response to this office indicates that its last correspondence\n\nwith\nexclude news clippings did not sufficiently narrow his request. The Mayor's Office offered him\nfurther opportunity to discuss the matter. This office has not received evidence that\n\ninformed him, in response to his last e-mail to that office, that his offer to\n\nengaged the Mayor's Office in further discussion before submitting this Request for\nReview. Under these circumstances, this office is unable to conclude that the Mayor's Office\nviolated section 3(g) of FOIA by failing to provide\nbefore denying his May 28, 2023, FOIA request as unduly burdensome. \n\nwith an opportunity to confer\n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590-7878 or benjamin.silver@ilag.gov. \n\nVery truly yours, \n\nBENJAMIN J. SILVER\nAssistant Attorney General\nPublic Access Bureau\n\n77169 f 3g proper mun"}
{"id":1015,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-19","case_number":null,"request_numbers":["77227"],"title":"East Aurora SD 131 properly redacted credit card numbers under 7(1)(kk) but erred on employee names","filename":"77227, issued September 19, 2023.pdf","rel_path":null,"word_count":1265,"summary":"The requester challenged East Aurora School District 131's response to a FOIA request for credit card statements and a list of bills, alleging improper redactions. The PAC determined that the District's supplemental response resolved the issues and that the remaining allegations were unfounded.","plain_summary":"A requester asked the East Aurora School District 131 for credit card statements and a list of bills. The requester complained that the district did not use black ink for redactions as requested and that some redactions were improper. The Illinois Attorney General's Public Access Bureau found that FOIA does not require a specific color of ink, so the complaint about the ink color was unfounded. The bureau also concluded that the district improperly redacted employee names and airline ticket details, but the district later provided a supplemental response that corrected those redactions. The bureau found that the district's redaction of credit card account numbers was proper under a different exemption (section 7(1)(kk)) than the one the district cited. The case is now closed.","holding":"The bureau concluded that the complaint about the ink color was unfounded, the redaction of credit card account numbers was proper under section 7(1)(kk), and the improperly redacted employee names and airline ticket details were provided in a supplemental response.","legal_question":"Whether the public body properly redacted credit card account numbers and other information from responsive records under FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/3","5 ILCS 140/7"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(kk)"],"public_body":"East Aurora School District 131","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"fees","subject_description":"The request sought credit card statements and a list of bills from a school district.","ocr_status":"ok","ocr_quality":94.8,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_kk/77227%2C%20issued%20September%2019%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["credit card statements","redaction","school district","FOIA request"],"truncated_suspect":0,"site_category":"Fees & Burdensome Requests","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nSeptember 19, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Amanda L. Sanderson\nFOIA Officer\nEast Aurora School District 131\n310 Seminary Avenue\nAurora,  Illinois 60505\nasanderson@d131. org\n\nRE:   FOIA Request for Review –  2023 PAC 77227\n\nDear\n\nand Ms. Sanderson: \n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(c) ( West 2022)).   For the reasons set forth below,  and\nafter the provision of a supplemental\nremainder of this Request for Review is unfounded. \n\nresponse,  the Public Access Bureau concludes that the\n\nOn June 20, 2023, \n\nsubmitted a two-part FOIA request to the\nEast Aurora School District 131 ( District)  seeking copies of (1) credit card statements for Rita\nGuzman and her department for calendar years 2021,  2022 and 2023;  and ( 2) List of Bills for\nAugust 16, 2021.   On July 5, 2023,  the District responded by notifying\nresponsive credit card statements other than for December 2022 through June 2023 were\npreviously provided to him in responses to prior FOIA requests.  1 The District provided\n\nthat all\n\n1In prior FOIA requests, \n\nrequested credit card statements for the District.   The District\n\ninformed this office that it receives a consolidated credit card statement showing all of the transactions for each of\nits employees who possess District- issued credit cards,  including charges made by Ms. Rita Guzman.   By providing\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844-5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800) 964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618)  529- 6400 •  TTY: (877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Amanda L. Sanderson\nSeptember 19, 2023\nPage 2\n\nresponsive records for this time period with certain portions redacted. 2 Finally,  the District in its\nresponse directed\n\nto its website where the List of Bills could be found.   In\n\nRequest for Review,  he contests the redactions and complained that the District did not\n\nmake the redactions in black ink as he had requested. \n\nAs a preliminary matter,  FOIA does not require a public body to use a particular\n\ncolor of ink or redaction tape when making its redactions.   Accordingly,  there is no basis for this\noffice to conclude that the District' s use of white ink, white out, or white redaction tape,  violates\nFOIA. \n\nIn its response to\n\nthe District stated that it had redacted \" account\n\nnumbers,  names,  personal contact information and employer identification numbers\" 3 pursuant to\nsection 7(1)(b) of FOIA ( 5 ILCS 140/ 7(1)( b)) ( West 2022).   Section 7(1)(b) of FOIA exempts\nfrom disclosure \"[ p] rivate information,  unless disclosure is required by another provision of this\nAct, a State or federal law or a court order.\"   Section 2(c-5) of FOIA ( 5 ILCS 140/ 2(c-5) (West\n2022))  defines \" private information\"  as: \n\nU]nique identifiers,  including a person' s social security number, \ndriver' s license number,  employee identification number,  biometric\nidentifiers,  personal financial\naccess codes,  medical records,  home or personal telephone\nnumbers,  and personal email addresses.   Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\ninformation,  passwords or other\n\nlicense plates,  except as\n\nthe responsive records it provided to\n\nOn August 25, 2023,  the District provided this office with unredacted copies of\nThis office' s comparison of the redacted and\n\nthe District' s consolidated credit card statements in the past,  it also provided credit card statements for Ms. Guzman.  \nThe District also informed this office that only heads of departments are given District- issued credit cards.   As the\nhead of the Language Acquisition Department,  Ms. Guzman has the sole use and control of her department' s credit\ncard. \n\n2The District only provided portions of the District' s consolidated credit card statements pertaining\n\nto Ms. Guzman' s District- issued credit card.   After discovering that it had not provided the September 2022 credit\ncard statement previously requested by\nDistrict provided a supplemental response in which it provided that statement. \n\nin his November 11, 2022,  FOIA request,  on August 8, 2023,  the\n\n3Letter from Amanda Sanderson,  FOIA Officer for East Aurora School District 131, to\n\nJuly 5, 2023)  at 1.  \n\n\fMs. Amanda L. Sanderson\nSeptember 19, 2023\nPage 3\n\nunredacted credit card statements showed that the District redacted the credit card account\nnumbers,  the names of the employees who used each credit card account,  and descriptions on the\nentries for airline ticket purchases detailing the names of the travelers and the ticket numbers.  \nNames,  especially the names of public employees or officials,  are not \" private information\" \nwithin the scope of section 7(1)(b).  See Lieber v. Board of Trustees of Southern Illinois\nUniversity,  176 Ill. 2d 401, 411- 12 (1997) ( names are \" basic identification,\"  not private\ninformation,  and, thus,  not within the scope of section 7(1)(b)).    Additionally,  an airline ticket\nnumber would not refer to any unique identifier which would provide any private information\nthat would be subject to the section 7(1)(b) exemption.   The District improperly redacted the\nnames of its employees and airline ticket details.   \n\nHowever,  on September 6, 2023,  an Assistant Attorney General ( AAG) in the\n\nPublic Access Bureau spoke by telephone with the District' s FOIA officer.  The AAG requested\nand the District agreed to provide a supplemental response to\nwhich it would provide the improperly redacted information.   On September 13, 2023, the\nDistrict provided a supplemental\npreviously improperly redacted.       \n\nresponse in which it provided the information that was\n\nFOIA request in\n\nThe District also redacted the account number for the District- issued credit card\n\nused by Ms. Guzman,  again relying on to section 7(1)(b) of FOIA.  This office has previously\ndetermined that financial\ninformation belonging to a public body is not \" personal financial\ninformation\"  constituting \" private information\"  that is exempt from disclosure pursuant to\nsection 7(1)(b).  See Ill. Att'y Gen.  PAC Req.  Rev. Ltr. 51340 51673,  issued October 25, 2018,  at\n4 (a school district' s bank account numbers do not fall within the scope of section 7(1)(b) \nbecause they are not \" personal financial\na public body subject to the requirements of FOIA ( emphasis in original)).   However,  section\n7(1)( kk) of FOIA ( 5 ILCS 140/ 7(1)(kk) (West 2022))  exempts from disclosure a public body' s\ncredit card numbers * * * \ndefrauding of a governmental entity or a person.\"   Although not cited by the District,  its\nredaction of the credit card account number is proper pursuant to section 7(1)(kk) of FOIA.  \nGoing forward,  we suggest that the District reference section 7(1)( kk) of FOIA in its response\nletter when it redacts this information. \n\nthe disclosure of which could result in identity theft or impression or\n\ninformation\"  that is unique to an individual but rather to\n\nThe District' s supplemental response resolves\nthe improper redaction of certain information.   With respect to the portion of\nRequest for Review alleging that the District improperly redacted in black ink and improperly\nredacted the District' s credit card account numbers,  this office concludes those allegations are\nunfounded.  \n\nallegations regarding\n\n\fMs. Amanda L. Sanderson\nSeptember 19, 2023\nPage 4\n\nThis file is closed.   If you have any questions,  please contact me at ( 773)  590-\n\n7071 or at the Chicago address listed on the bottom of the first page of this letter.  \n\nVery truly yours, \n\nGRACE ANGELOS\nAssistant Attorney General\nPublic Access Bureau\n\n77227 f unf sd\n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A school district's credit card statements and bill list","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77227/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nSeptember 19, 2023\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nVia electronic mail\n\nVia electronic mail\nMs. Amanda L. Sanderson\nFOIA Officer\nEast Aurora School District 131\n310 Seminary Avenue\nAurora, Illinois 60505\nasanderson@d131. org\n\nRE: FOIA Request for Review – 2023 PAC 77227\n\nDear\n\nand Ms. Sanderson: \n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(c) (West 2022)). For the reasons set forth below, and\nafter the provision of a supplemental\nremainder of this Request for Review is unfounded. \n\nresponse, the Public Access Bureau concludes that the\n\nOn June 20, 2023, \n\nsubmitted a two-part FOIA request to the\nEast Aurora School District 131 (District) seeking copies of (1) credit card statements for Rita\nGuzman and her department for calendar years 2021, 2022 and 2023; and (2) List of Bills for\nAugust 16, 2021. On July 5, 2023, the District responded by notifying\nresponsive credit card statements other than for December 2022 through June 2023 were\npreviously provided to him in responses to prior FOIA requests. 1 The District provided\n\nthat all\n\n1 In prior FOIA requests, \n\nrequested credit card statements for the District. The District\n\ninformed this office that it receives a consolidated credit card statement showing all of the transactions for each of\nits employees who possess District- issued credit cards, including charges made by Ms. Rita Guzman. By providing\n\nresponsive records for this time period with certain portions redacted. 2 Finally, the District in its\nresponse directed\n\nto its website where the List of Bills could be found. In\n\nRequest for Review, he contests the redactions and complained that the District did not\n\nmake the redactions in black ink as he had requested. \n\nAs a preliminary matter, FOIA does not require a public body to use a particular\n\ncolor of ink or redaction tape when making its redactions. Accordingly, there is no basis for this\noffice to conclude that the District's use of white ink, white out, or white redaction tape, violates\nFOIA. \n\nIn its response to\n\nthe District stated that it had redacted \" account\n\nnumbers, names, personal contact information and employer identification numbers\" 3 pursuant to\nsection 7(1)(b) of FOIA (5 ILCS 140/ 7(1)(b)) (West 2022). Section 7(1)(b) of FOIA exempts\nfrom disclosure \"[ p] rivate information, unless disclosure is required by another provision of this\nAct, a State or federal law or a court order.\" Section 2(c-5) of FOIA (5 ILCS 140/ 2(c-5) (West\n2022)) defines \" private information\" as: \n\nU]nique identifiers, including a person's social security number, \ndriver's license number, employee identification number, biometric\nidentifiers, personal financial\naccess codes, medical records, home or personal telephone\nnumbers, and personal email addresses. Private information also\nincludes home address and personal\notherwise provided by law or when compiled without possibility of\nattribution to any person. \n\ninformation, passwords or other\n\nlicense plates, except as\n\nthe responsive records it provided to\n\nOn August 25, 2023, the District provided this office with unredacted copies of\nThis office's comparison of the redacted and\n\nthe District's consolidated credit card statements in the past, it also provided credit card statements for Ms. Guzman. \nThe District also informed this office that only heads of departments are given District- issued credit cards. As the\nhead of the Language Acquisition Department, Ms. Guzman has the sole use and control of her department's credit\ncard. \n\n2 The District only provided portions of the District's consolidated credit card statements pertaining\n\nto Ms. Guzman's District- issued credit card. After discovering that it had not provided the September 2022 credit\n\nunredacted credit card statements showed that the District redacted the credit card account\nnumbers, the names of the employees who used each credit card account, and descriptions on the\nentries for airline ticket purchases detailing the names of the travelers and the ticket numbers. \nNames, especially the names of public employees or officials, are not \" private information\" \nwithin the scope of section 7(1)(b). See Lieber v. Board of Trustees of Southern Illinois\nUniversity, 176 Ill. 2d 401, 411- 12 (1997) (names are \" basic identification,\" not private\ninformation, and, thus, not within the scope of section 7(1)(b)). Additionally, an airline ticket\nnumber would not refer to any unique identifier which would provide any private information\nthat would be subject to the section 7(1)(b) exemption. The District improperly redacted the\nnames of its employees and airline ticket details. \n\nHowever, on September 6, 2023, an Assistant Attorney General (AAG) in the\n\nPublic Access Bureau spoke by telephone with the District's FOIA officer. The AAG requested\nand the District agreed to provide a supplemental response to\nwhich it would provide the improperly redacted information. On September 13, 2023, the\nDistrict provided a supplemental\npreviously improperly redacted. \n\nresponse in which it provided the information that was\n\nFOIA request in\n\nThe District also redacted the account number for the District- issued credit card\n\nused by Ms. Guzman, again relying on to section 7(1)(b) of FOIA. This office has previously\ndetermined that financial\ninformation belonging to a public body is not \" personal financial\ninformation\" constituting \" private information\" that is exempt from disclosure pursuant to\nsection 7(1)(b). See Ill. Att'y Gen. PAC Req. Rev. Ltr. 51340 51673, issued October 25, 2018, at\n4 (a school district's bank account numbers do not fall within the scope of section 7(1)(b) \nbecause they are not \" personal financial\na public body subject to the requirements of FOIA (emphasis in original)). However, section\n7(1)(kk) of FOIA (5 ILCS 140/ 7(1)(kk) (West 2022)) exempts from disclosure a public body's\ncredit card numbers * * * \ndefrauding of a governmental entity or a person.\" Although not cited by the District, its\nredaction of the credit card account number is proper pursuant to section 7(1)(kk) of FOIA. \nGoing forward, we suggest that the District reference section 7(1)(kk) of FOIA in its response\nletter when it redacts this information. \n\nthe disclosure of which could result in identity theft or impression or\n\ninformation\" that is unique to an individual but rather to\n\nThe District's supplemental response resolves\nthe improper redaction of certain information. With respect to the portion of\nRequest for Review alleging that the District improperly redacted in black ink and improperly\nredacted the District's credit card account numbers, this office concludes those allegations are\n\nThis file is closed. If you have any questions, please contact me at (773) 590-\n\n7071 or at the Chicago address listed on the bottom of the first page of this letter. \n\nVery truly yours, \n\nGRACE ANGELOS\nAssistant Attorney General\nPublic Access Bureau\n\n77227 f unf sd"}
{"id":1016,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-07-31","case_number":null,"request_numbers":["77333"],"title":"City of Streator Police Department properly designated requester as recurrent requester","filename":"77333, issued July 31, 2023.pdf","rel_path":null,"word_count":5409,"summary":"The requester alleged the City of Streator Police Department failed to respond to a FOIA request, but the PAC determined the Department properly designated the requester as a 'recurrent requester' under FOIA, allowing for an extended response timeline.","plain_summary":"A requester complained that the police department didn't answer his records request on time. The Attorney General's office found that the department correctly labeled him a 'recurrent requester,' which legally allows them more time to process his requests. Because the department followed the law in this designation, the PAC closed the case.","holding":"The City of Streator Police Department did not violate FOIA by designating the requester as a recurrent requester.","legal_question":"Whether the City of Streator Police Department properly designated the requester as a 'recurrent requester' pursuant to 5 ILCS 140/2(g).","disposition":"no_violation","primary_statute":["5 ILCS 140/2(g)","5 ILCS 140/3"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"City of Streator Police Department","requesting_party":null,"pac_outcome":"No violation found","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The dispute concerns the procedural designation of a requester as a 'recurrent requester' and the resulting impact on the public body's response deadline.","ocr_status":"reocr_tesseract","ocr_quality":97,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_f/77333%2C%20issued%20July%2031%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","FOIA response time","police records"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly 31,  2023\n\nKWAME RAOUL\n\nATTORNEY\n\nGENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. William Lee\n\nCity of Streator Police Department\n\n204 South Bloomington Street\n\nStreator,  Illinois 61364\n\nb.lee@streatorpolice. org\n\nRE:   FOIA Request\n\nfor Review:   2023 PAC 77333\n\nDear\n\nand Mr.  Lee: \n\nThis determination is issued pursuant\n\nto section 9.5( f) of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons that follow,  the\n\nPublic Access Bureau concludes that the City of Streator Police Department (  Department)  did\n\nnot violate FOIA by designating\n\nas a recurrent\n\nrequester. \n\nOn July 5, 2023, \n\nsubmitted a FOIA request\n\nto the Department\n\nseeking police reports for numerous recent\n\nincidents.   On July 14,  2023, \n\nfiled a\n\nRequest\n\nfor Review with this office alleging that the Department had not responded to his FOIA\n\nrequest or taken an extension.   On July 19,  2023,  this office sent a copy of\n\nFOIA\n\nrequest and his Request\n\nfor Review to the Department and asked it if it had responded to\n\nFOIA request.   The same day,  the Department\n\ninformed this office that it had\n\ndesignated\n\nas a recurrent\n\nrequester,  as defined by section 2( g)  of FOIA ( 5 ILCS\n\n140/ 2( g) ( West 2022)),  and would respond to his requests within 21 business days of receipt.  \n\nThe Department also provided this office with a copy of a notice it sent to\n\ninforming him of his status as a recurrent\n\nrequester,  which was triggered by\n\nJune\n\n30,  2023,  FOIA request.   On July 20,  2023,  this office forwarded to\n\na copy of the\n\nDepartment' s response letter.   On July 21,  2023,  he replied. \n\n00 South Second Street,  Springfield, \n\nIllinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n\n100 West Randolph Street,  Chicago, \n\nIllinois 60601 • ( 312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601 South University Ave.,  Carbondale, \n\nIllinois 62901 • ( 618)  529- 6400 •  TTY: ( 877)  675- 9339 •  Fax: ( 618)  529- 6416\n\n\fr. William Lee\n\nJuly 31,  2023\n\nPage 2\n\nDETERMINATION\n\nSection 2( g)  of FOIA defines a \" recurrent\n\nrequester\"  as a \" person\"  who,  \n\nin the 12 months immediately\n\npreceding the request,  has submitted\n\nto the same public body ( i) a minimum of 50 requests for records, \n\nii) a minimum of 15 requests for records within a 30- day period, \n\nor ( iii) a minimum of 7 requests for records within a 7- day period. \n\nFor purposes of this definition, \n\nrequests made by news media and\n\nnon- profit,  scientific,  or academic organizations\n\nshall not be\n\nconsidered\n\nin calculating the number of requests made in the time\n\nperiods in this definition when the principal purpose of the requests\n\nis ( i) to access and disseminate\n\ninformation concerning news and\n\ncurrent or passing events, ( ii) for articles of opinion or features of\n\ninterest\n\nto the public,  or ( iii) for the purpose of academic, \n\nscientific,  or public research or education.   \n\nA public body' s time within which to respond to a request by a recurrent\n21 business days after receipt of the request.   5 ILCS 140/ 3.2( a) ( West 2022). 1\n\nrequester\n\nis extended to\n\nacknowledged\n\nthat he has submitted approximately\n\n60 FOIA\n\nrequests in the year prior to his June 30,  2023,  FOIA request.  \n\ndisputes that he is a\n\nrecurrent\n\nrequester,  however,  because all of his FOIA requests were \" for information\n\nto be\n\ndisseminated\n\non my electronic news media page to educate the public of the tax funded jobs\n\nbeing done in the community.\"\n\n2\n\nexplained that he has a \" Facebook news media\n\ngroup page ' Streator Happenings'\" \n\nto which he posts the information\n\nhe receives from the\n\nDepartment.\n\n3 He also alleged that\n\nthe Department\n\nis aware of his Streator Happenings\n\nFacebook\n\npage;  the Department\n\ndoes not dispute that it is aware of the page. \n\nFirst,  although the Department\n\nis aware of the Streator Happenings\n\nFacebook\n\npage,  the request at issue in this Request\n\nfor Review does not assert\n\nthat\n\nthe individual\n\nsubmitting the request\n\nis a member of the news media or a non- profit,  scientific,  or academic\n\nafter receipt of the request unless it extends the time to respond by an additional\n\nfive business days.   5 ILCS\n\n1In contrast,  a public body must respond to most other types of requests within 5 business days\n\n140/ 3( d) ( West 2022). \n\nof the Attorney General] ( July 25,  2023). \n\n2E- mail from\n\nto [ Laura Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office\n\n2023). \n\n3E- mail from\n\nto [ Public Access Counselor,  Office of the Attorney General] ( July 14, \n\n\fr. William Lee\n\nJuly 31,  2023\n\nPage 3\n\norganization,  or assert\n\nthat the principal purpose of the request was among the three principal\n\npurposes that are excluded from the definition of \" recurrent\n\nrequester\" \n\nin section 2( g)  of FOIA.  \n\nConsequently, \n\nthe Department was unable to consider\n\nthe representation\n\nmade to\n\nthis office when making its own determination\n\nas to whether\n\nthe requests qualified as requests\n\nsubmitted by a recurrent\n\nrequester. \n\nSecond,  section 2( f) of FOIA ( 5 ILCS 140/ 2( f) (West 2022))  defines \" news\n\nmedia\" \n\nin relevant part as a \" newspaper or other periodical\n\nissued at regular\n\nintervals whether\n\nin\n\nprint or electronic\n\nformat,  a news service whether\n\nin print or electronic\n\nformat[.]\"  \n\nIn the context\n\nof self- published websites purporting to be \" news media,\" \n\nthis office has determined\n\nthat\n\nthe\n\nstatutory definition of \" news media\"  requires more than simply disseminating\n\ninformation\n\nthrough a website or e- mail: \n\nMerely disseminating\n\ninformation or criticism electronically\n\nthough a website,  or via e- mail,  does not meet\n\nthe statutory\n\ndefinition of \" news media.\"   If it did,  then any person who chose to\n\npost an opinion or comment on a matter of public interest\n\nelectronically would become a news medium,  which was clearly\n\nnot the intent of the General Assembly when it enacted the\n\nexception.  \n\nIll. Att' y Gen.  PAC Req.  Rev.  Ltr.  44649,  issued\n\nDecember 2, 2016,  at 3 ( quoting Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. \n\n33323,  issued February 13,  2015,  at 4). \n\nIn the absence of Illinois law on how to interpret\n\nthe term \" news media,\" \n\nthis\n\noffice has found cases from other jurisdictions\n\ninterpreting\n\nsimilar statutory definitions\n\nto be\n\npersuasive.   Those cases hold that \" an individual or entity that self- publishes\n\ninformation on the\n\nInternet generally must demonstrate\n\nsome adherence to recognized\n\njournalistic\n\nstandards such as\n\neditorial oversight or the creation of original content similar\n\nto that of traditional media\" \n\nin order\n\nto be considered \" news media.\"   Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  34653,  issued April 4, 2017, \n\nat 5- 6;  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  44649,  at 5.   We further observed that \"[ t]he General\n\nAssembly has not expanded the definition in FOIA to include other individuals or entities apart\n\nfrom those traditional media sources and their electronic versions.\"  \n\nIll. Att' y Gen.  PAC Req. \n\nRev.  Ltr.  44649,  at 5. \n\nThis office has reviewed the Streator Happenings\n\npage on the Facebook\n\nsocial\n\nmedia platform.   The page is a \" Public group\" \n\nthat describes\n\nitself as \" a news media group that\n\nis\n\nfor informing good people of Streator of what does ( and doesn' t) happen in Streator,  bad or good, \n\n\fr. William Lee\n\nJuly 31,  2023\n\nPage 4\n\nalthough I do try to highlight\n\nthe problems to hopefully inspire others to ask for better.\" 4 The\n\nAbout\"  section also notes \"[\n\nt]his page is editorialized,  and the narrative may be controlled to try\n\nto promote my personal desires to see better\n\nfor the many good caring people of Streator,  by\n\nexposing the public corruption, \n\nlack of proper enforcement of laws that I believe have hurt the\n\ncommunity\ncreated two years ago,  has 7,078 members,  and had 101 posts in the past month. 6\n\nfor so long,  and the problems that are hidden by the leaders.\" 5 The group was\n\nThe posts to Streator Happenings\n\nvary in nature.   Some posts are pictures of arrest\n\nreports, \n\nincluding mugshots,  with or without\n\ncommentary\n\nabout\n\nthe arrest.   \n\nperiodically\n\nposts lists of police calls,  pictures of court documents,  or links to news\n\narticles.   He frequently posts his opinions concerning alleged crimes in Streator.   Other posts are\n\nmemes,  questions from group members looking for advice or recommendations, \n\nor inter- group\n\nmember\n\ninteractions.   While it is clear that\n\nis disseminating\n\ncrime- related\n\ninformation, \" Streator Happenings\" \n\nis not a news media outlet.   Upon review,  the posts are not\n\noriginal content by journalists using recognized\n\njournalistic\n\nstandards,  but instead are largely\n\nimages accompanied\n\nby short summaries or opinions.   The Streator Happenings\n\ngroup page\n\ntherefore lacks the essential components of a \" newspaper,\" \"\n\nperiodical\"  or \" news service\" \n\nincluded in FOIA' s definition of \" news media.\"  \n\nuse of this social media page to\n\ndisseminate\n\ninformation to the general public does not qualify him for exemption from the\n\nrecurrent\n\nrequester\"  provisions\n\nin FOIA.  \n\nAccordingly,  we conclude that the Department did not violate FOIA by treating\n\nFOIA requests as requests submitted by a recurrent\n\nrequester\n\nin accordance with\n\nsection 2( g)  of FOIA. \n\nIn his Request\n\nfor Review,\n\nraised questions about when individuals' \n\nFOIA requests may be combined and counted together\n\nto calculate whether\n\nthe recurrent\n\nrequester\n\nthreshold has been met.   To provide education on this topic,  this office has attached to\n\nthis determination\n\nselected determination\n\nletters discussing factual scenarios\n\ninvolving multiple\n\nrequesters and the applicability of section 3.2 of FOIA.   See Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. \n\n61809,  issued May 7, 2020;  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr.  56925,  issued April 2, 2019. \n\nJuly 25,  2023). \n\nJuly 25,  2023). \n\n4Streator Happenings,  About,  https:// www. facebook. com/ groups/ 741839786483796/ (\n\nlast visited\n\n5Streator Happenings,  About,  https:// www. facebook. com/ groups/ 741839786483796/ (\n\nlast visited\n\nJuly 25,  2023).  The page currently has a post noting that\n\npaused the group as of July 10,  2023. \n\n6Streator Happenings,  About,  https:// www. facebook. com/ groups/ 741839786483796/ (\n\nlast visited\n\n\fr. William Lee\n\nJuly 31,  2023\n\nPage 5\n\nThe Public Access Counselor\n\nhas determined\n\nthat resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\n\nany questions,  please contact me at laura. harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nDeputy Bureau Chief\n\nPublic Access Bureau\n\nAttachment\n\n77333 f 2g proper pd\n\n\fOFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nMay 7,  2020\n\nWAME RAOUL\n\nATTORNEY\n\nGENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr.  Jordan\n\nT.  Klein\n\nErickson, \n\nDavis,  Murphy,  Johnson &  Walsh,  Ltd. \n\n132 South Water Street,  Suite 610\n\nDecatur, \n\nIllinois 62523\n\njklein@erick§\n\nondavislaw.\n\ncom\n\nRE:  FOIA Request\n\nfor Review — \n\n2020 PAC o 1809\n\nDear\n\nand Mr.  Klein: \n\nThis determination\n\nis issued pursuant\n\nto section 9. 5( 0 of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS\n\n140/ 9. 5( 0 ( West 201. 8)). \n\nFor\n\nthe\n\nreasons\n\nthat\n\nfollow, \n\nthe\n\nPublic\n\nAccess\n\nBureau\n\nconcludes\n\nthat\n\nthe Decatur\n\nPublic\n\nLibrary (\n\nLibrary) \n\nimproperly\n\ndesignated\n\nas\n\na recurrent\n\nrequester. \n\nOn January\n\n31,  2020, \n\nsubmitted\n\na FOIA request\n\nto the Library\n\nseeking five categories of e- mails. \n\nsigned the request with his own name,  and did\n\nnot\n\nindicate\n\nthat he was affiliated with any group or organiztion. \n\nThe same day, \n\nthe Library\n\ninformed\n\nthat\n\nit was treating\n\nhim as a recurrent\n\nrequester, \n\nas defined\n\nby section\n\n2(  g) \n\nof FOIA! (\n\n5 ILCS\n\n140/ 2(\n\ng) (\n\nWest\n\n2018)), \n\nand would respond\n\nto his request within 21 business\n\ndays.  The Library listed 51 FOIA requests submitted between the dates of April 22,  2019,  and\n\nJanuary\n\n30,  2020,  which it contended\n\nwere sent by\n\nor were \" DPL [ Decatur Public\n\nLibrary]:  Watchdogs requests [\n\nthat]  note '\n\non behalf of DPL Watchdogs'  or are sent. \n\nfrom an 'email address that\n\nis associated with\n\nI On February\n\n15,  2020, \n\nfiled this Request\n\nfor Review challenging\n\nthe Library'\n\ns designation\n\nof him as a recurrent\n\nrequester, \n\ncontending\n\nthat he did not send all of the FOIA requests\n\nthe Library\n\ncited in its\n\nE- mail from Decatur Public Library,  FOIA Officers to [\n\nJanuary 31,  2020). \n\n500\n\nSouth\n\nSecond\n\nStreet, \n\nSpringfield, \n\nIllinois\n\n62701 • (\n\n217) \n\n782-\n\n1090 • \n\nTT,': (\n\n877) \n\n844-\n\n5461 • \n\nFax: (\n\n217) \n\n782-\n\n7046 • \n\n100 West Randolph\n\nStreet, \n\nChicago, \n\nIllinois\n\n60601 • (\n\n312) \n\n814-\n\n3000 • \n\nTTY: (\n\n800) \n\n964-\n\n3013 • \n\nFax: (\n\n312) \n\n814-\n\n3806\n\n601\n\nSouth\n\nUniversity\n\nAve.,  Carbondale, \n\nIllinois\n\n62901 • (\n\n618) \n\n529- 6400 •  TTY: (\n\n877) \n\n675- 9339 • \n\nFax: (\n\n618)  529- 6416\n\n\fMr.  Jordan Klein\n\nMay 7,  2020\n\nPage 2\n\nJanuary 31,  2020,  letter. \n\nacknowledged that he contributes to the DPL Watchdogs\n\nwebsite (\"\n\nkeepdplhonest.\n\nwordpress.\n\ncom\") \n\nand that he has used the DPL Watchdogs\n\ne- mail\n\naddress\n\nto make FOIA requests\n\nto the Library,  but he contended\n\nthat he always\n\nsigned his name\n\nto those requests. \n\nHe asserted\n\nthat he did not submit\n\nany of the requests\n\nfrom DPL Watchdogs\n\nthat\n\ndo not\n\nbear\n\nhis\n\nname. \n\nReview and asked\n\nit to provide\n\na detailed\n\nexplanation\n\nof the\n\nfactual and\n\nlegal\n\nbases\n\nfor\n\nthe\n\nOn February\n\n24,  2020, \n\nthis office sent\n\nthe Lib ary a copy of the Request\n\nfor • \n\nLibrary' s 'designation of\n\nas a recurrent\n\nrequester and to provide copies of the FOIA\n\nrequests the Library used in its determination.  On March 4,  2020,  the Library provided a written\n\nresponse , and the requested materials. \n\nOn March\n\n9,  2020, \n\nthi\n\noffice forwarded\n\nthe Library'\n\ns\n\nwritten\n\nresponse\n\nto\n\nHe replied\n\non March\n\n10,  2020. \n\nDETERMINATION\n\nDefinition\n\nof Recurrent\n\nRequester\n\nSection\n\n2( b)  of FOIA (\n\n5 ILCS 140/ 2( b) (\n\nWest 2018)  defines\n\na \" person\"  as \" any\n\nindividual, \n\ncorporation, \n\npartnership, \n\nfirm,  organization\n\nor association, \n\nacting\n\nindividually\n\nor as a\n\ngroup.\" \n\nSection\n\n2( g) \n\nof FOIA\n\ndefines\n\na \"\n\nrecurrent\n\nrequester\" \n\nas\n\na \" person\" \n\nwho, \"\n\nin the 12\n\nmonths\n\nimmediately\n\npreceding\n\nthe request,  has submitted\n\nto he same public body (\n\ni)  a minimum\n\nof 50 requests\n\nfor\n\nrecords, (\n\nii)  a minimum\n\nof 15 requests\n\nfor ifecords\n\nwithin a 30 - day period,  or\n\niii)  a minimum\n\nof 7 requests\n\nfor\n\nrecords\n\nwithin\n\na 7 -day period.\" \n\nA public body' s time to\n\nrespond to a request by a recurrent\n\nrequester\n\nis extended to 21 business days after receipt of the\n\nrequest. \n\n5 ILCS\n\n140/ 3. 2( a) ( West 2018). 2\n\nThis office has reviewed\n\nthe copies of the FOIA requests\n\nthe Library\n\nprovided\n\nto\n\nthis office and observed\n\nthat many were signed by\n\nsome were signed by\n\non\n\nbehalf\n\nof the DPL Watchdogs, \n\nand\n\nsome\n\nwere\n\nsigned\n\nonl))  by \" DPL Watchdogs.\" \n\nThe\n\nLibrary argued that all of the requests should be attributed to\n\nIt asserted that\n\nis the sole contributor to the DPL Watchdogs website based on the fact that he is the\n\nonly author\n\nlisted on the website'\n\ns posts.  The Library\n\ncited this office'\n\ns non- binding\n\ndetermination\n\nin Ill.  Att' y Gen.  PAC Req.  Rev.  Ltr.  56925, \n\nissued April 2,  2019,  for the\n\nproposition\n\nthat all of the requests may be considered\n\nas coming from the same \" person\"  as\n\ndefined\n\nin section\n\n2( b)  of FOIA (\n\n5 ILCS\n\n140/ 2( b) ( West\n\n201)). \n\nIn that\n\ncase, \n\nan individual\n\nsubmitted FOIA requests\n\nto a public body in his personal\n\ncapacity and on behalf of two\n\norganizations. \n\nThe individual\n\nhad signed\n\nhis name to each of the requests, \n\nand therefore\n\nthis\n\n2In contrast,  a public body must respond to most other t' pes of requests within 5 business days\n\nafter receipt of the request unless it extends the time to respond by an add' tional five business days.  5 ILCS\n\n140/\n\n3( d) ( West\n\n2018). \n\n\fMr.  Jordan Klein\n\nMay 7,  2020\n\nPage 3\n\noffice concluded that all of the requests could be attributed to that\n\nindividual\n\nfor purposes of\n\ndesignating\n\nhim as a recurrent\n\nrequester. \n\nIll.  Att' y Gen.  PAC Req.  Rev.  Ltr.  56925,  at 2- 3. \n\nposts\n\non the website, \n\nbut argued\n\nthat\n\nthe website\n\nhas other contributors\n\nwho submit FOIA\n\nIn his reply, \n\nacknowledged\n\nthat he is the only author\n\nlisted for the\n\nrequests\n\nto the Library. \n\nAfter reviewing the records,  this office is unable to determine who submitted the\n\nFOIA requests\n\nsigned\n\nonly\n\nas \" DPL Watchdogs.\"  This office has received at least one other\n\nRequest\n\nfor Review ( 2020 PAC 62320) \n\nfrom a contributor\n\nto the DPL Watchdogs\n\nwebsite who\n\nmay have used the DPL Watchdogs\n\ne- mail address.  Unlike\n\nthe circumstance\n\nin Ill.  Att' y Gen. \n\nPAC Req.  Rev.  Ltr.  56925,  where the requester\n\nsigned everyOIA request, \n\nthere is insufficient\n\nproof that\n\nsubmitted the DPL Watchdogs requestthat he did not sign.  Further,  not\n\nall\n\nrequests\n\nsubmitted\n\nby\n\ncould\n\nreasonably\n\nbe considered\n\nto have been on behalf of\n\nthe DPL Watchdogs website,  as the first post on that site is dated August 29,  2019, 3 months after\n\nmany of the FOIA requests\n\ncited by the Library as proof of\n\ns recurrent\n\nrequester\n\nstatus. \n\nAccordingly, \n\nfor purposes of calculating\n\nstatus as a recurrent\n\nrequester, \n\nthe Library may count all FOIA requests\n\nthat\n\nsigned,  either\n\nin his personal\n\ncapacity or on behalf of the DPL Watchdogs,  To calculate the DPL Watchdogs'  status as a\n\nrecurrent\n\nrequester, \n\nthe Library may count all FOIA requests\n\nsigned by the DPL Watchdogs\n\nand\n\nall FOIA requests\n\nsigned by individuals\n\non behalf of the DPI. J Watchdogs, \n\nincluding\n\nBecause\n\nhe has denied sending\n\nthem and there is insufficient\n\nevidence\n\nto the contrary, \n\nthe FOIA\n\nrequests\n\nsigned only by the DPL Watchdogs'  may not be considered\n\nin determining\n\nwhether\n\nis a recurrent\n\nrequester. \n\nTherefore, \n\nthe Library\n\nhas not demonstrated\n\nthat\n\nsubmitted\n\nthe requisite\n\nnumber of FOIA requests\n\nto be designated\n\nas a recurrent\n\nrequester. \n\nThis\n\noffice requests that the Library refrain from treating\n\nor DPL Watchdogs\n\nas a\n\nrecurrent\n\nrequester\"  until\n\nthey have submitted\n\nthe requisite\n\nnumber of requests\n\nto qualify under\n\nthe definition of that\n\nterm in section 2( g)  of FOIA. \n\nhttps://\n\nkeepdplhonest.\n\nwordpress.\n\ncom/\n\n2019/\n\n08/ 29/\n\nrick- meyers-\n\ncostly-\n\nadventures-\n\nin- d- c/ \n\nRick\n\nMeyer'\n\ns Costly Adventures\n\nin D. 0 \" ( August\n\n29,  2019),  available\n\nat\n\n\fMr.  Jordan Klein\n\nMay 7,  2020\n\nPage 4\n\nThe Public Access Counselor\n\nhas determined\n\nthat\n\nresolution\n\nof this matter\n\ndoes\n\nnot\n\nrequire the issuance of a binding opinion.  This letter serves\n\nto close this matter. \n\nIf you have\n\nany questions,  please contact me at ( 217)  524- 7958 or LHarter\n\natg. state. il. us. \n\nVery truly yours, \n\nLAURA S.  HARTER\n\nDeputy Bureau Chief\n\nPublic\n\nAccess Bureau\n\n61809 f 2g improper\n\nlib\n\n\fOFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE\n\nOF\n\nILLINOIS\n\nApril 2,  2019\n\nKWAME RAOUL\n\nATTORNEY\n\nGENERAL\n\nVia electronic mail\n\nRE:  FOIA Request\n\nfor Review —  2019 PAC 56925\n\nDear\n\nThis determination\n\nletter\n\nis issued pursuant\n\nto section\n\n9. 5( c)  of the Freedom of\n\nInformation Act ( FOIA) ( 5 ILCS 140/ 9. 5( c) ( West 2016)).  For the reasons\n\nthat\n\nfollow,  the. \n\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn January\n\n3,  2019,  you delivered\n\ntwelve FOIA requests\n\nto Valley View\n\nCommunity\n\nUnit School District\n\n365U ( District) \n\nseeking\n\ncopies of various\n\nrecords. \n\nOn January\n\n10,  2019,  the District notified you in writing that\n\nit had determined\n\nthat you qualify as a\n\nrecurrent\n\nrequester\" \n\npursuant\n\nto section\n\n2( g)( iii)  of FOIA ( 5 ILCS 140/ 2(  g)( iii) ( West 2016)), \n\nbecause\n\nyou had submitted\n\nto the same public body a minimum of seven requests\n\nfor records\n\nwithin a seven- day period. \n\nThe District\n\nfurther\n\nstated that\n\nit would initially\n\nrespond\n\nto the FOIA\n\nrequests within 21 business\n\ndays of receipt,  as permitted\n\nby section\n\n3. 2 of FOIA (\n\n5 ILCS 140/ 3. 2\n\nWest\n\n2016)). \n\nOn February\n\n4,  2019, \n\nthe District\n\nresponded\n\nto all\n\ntwelve requests,  making\n\navailable\n\nto you electronic\n\ncopies\n\nof records\n\nresponsive\n\nto certain\n\nrequests\n\nwith redactions, \n\nasserting\n\nthat\n\nthe District was unable to locate records\n\nresponsive\n\nto other\n\nrequests, \n\nand notifying\n\nyou that your\n\nrequest\n\nfor security\n\ncamera\n\nfootage was unduly\n\nburdensome, \n\nas defined\n\nin section\n\n3( g)  of FOIA ( 5 ILCS 140/ 3( g) ( West)),  and requesting\n\nthat you narrow that\n\nrequest. \n\nOn March 13,  2019,  you furnished all the required information to submit a\n\nRequest\n\nfor Review to the Public Access\n\nBureau. \n\nYour Request\n\nfor Review argues\n\nthat\n\nthe\n\nDistrict\n\nimproperly\n\ndesignated\n\nthe twelve requests\n\nyou delivered\n\non January\n\n3,  2019,  as requests\n\nsubmitted\n\nby a recurrent\n\nrequester. \n\nYou asserted\n\nthe requests\n\nwere submitted\n\non behalf of three\n\nseparate parties, \n\nthat each request explicitly\n\nidentified\n\nthe responsible\n\nparty,  and that\n\nthe District\n\nviolated FOIA by failing to recognize\n\nthese parties\n\nas independent\n\nentities. \n\n500\n\nSouth\n\nSecond\n\nStreet, \n\nSpringfield, \n\nIllinois\n\n62701 • (\n\n217) \n\n782-\n\n1090 • \n\nTTY: (\n\n877) \n\n844-\n\n5461 • \n\nFax: (\n\n217) \n\n782-\n\n7046\n\n100 West Randolph\n\nStreet,  Chicago, \n\nIllinois\n\n60601 • (\n\n312)  814- 3000 •  TTY: ( 800)  964- 3013 •  Fax: ( 312)  814- 3806\n\n601\n\nSouth\n\nUniversity\n\nAve.,  Carbondale, \n\nIllinois\n\n62901 • (\n\n618) \n\n529-\n\n6400 • \n\nTTY: (\n\n877) \n\n675-\n\n9339 • \n\nFax: (\n\n618) \n\n529-\n\n6416\n\n\fApril 2,  2019\n\nPage 2\n\nrequester\" \n\nas: \n\nSection 2( g)  of FOIA ( 5 ILCS 140/ 2( g) ( West 2016)),  defines a \" recurrent\n\na person\n\nthat, \n\nin the 12 months\n\nimmediately\n\npreceding\n\nthe request, \n\nhas submitted\n\nto the same public body ( i)  a minimum of 50\n\nrequests\n\nfor records, (\n\nii)  a minimum of 15 requests\n\nfor records\n\nwithin a 30 - day period,  or ( iii)  a minimum of 7 requests for records\n\nwithin a 7 -day period.  For purposes of this definition, \n\nrequests\n\nmade by news media and non- profit,  scientific,  or academic\n\norganizations\n\nshall not be considered in calculating the number of\n\nrequests made in the time periods in this definition when the\n\nprincipal purpose of the requests is ( i)  to access and disseminate\n\ninformation\n\nconcerning\n\nnews and current or passing events, (\n\nii)  for\n\narticles of opinion or features of interest\n\nto the public,  or ( iii)  for\n\nthe purpose\n\nof academic, \n\nscientific, \n\nor public\n\nresearch\n\nor. \n\neducation. ( Emphasis added.) \n\nIf the twelve requests submitted on January 3,  2019,  are deemed to have been\n\nsubmitted by the same \" person,\" \n\nthen that person meets the definition of a recurrent\n\nrequester\n\nso\n\nlong as that \" person\" \n\nis not a member of the news media or a non- profit,  scientific,  or academic\n\norganization\n\nsubmitting\n\nthe request\n\nfor one of the purposes\n\noutlined\n\nin section\n\n2( g). \n\nSection 2( b)  of FOIA ( 5 ILCS 140/ 2( b) ( West 2016)  defines \" person\"  as \" any\n\nindividual, \n\ncorporation, \n\npartnership, \n\nfirm,  organization\n\nor association, \n\nacting individually\n\nor as a\n\ngroup.\"  Your Request\n\nfor Review argues that several of the twelve FOIA requests you delivered\n\non January 3,  2019,  were submitted on behalf of two associations— the Will County Public\n\nRecords Group and the Bolingbrook Transparency Group— and that by attributing those FOIA\n\nrequests to you personally, \n\nthe District\n\nimproperly failed to recognize these groups as \" persons\" \n\nwho have the authority to submit FOIA requests on their own behalf. \n\nFour of the FOIA requests you delivered to the District on January 3,  2019,  were\n\nsubmitted on your behalf— your name is listed on the top of the request,  you state in the request\n\nI hearby request\"  certain records,  and you signed the requests.  Four of the requests\n\nstate that\n\nthey are submitted on behalf of the Bolingbrook Transparency Group— the requests state that\n\nwe hereby request\"  certain records,  and the name of the Bolingbrook Transparency Group is\n\nlisted at\n\nthe top of the requests.  However, \n\nyour name\n\nis listed along with the group'\n\ns name and\n\nyou signed the requests.  Two of the requests state that they are submitted on behalf of the Will\n\nCounty Public Records Group— the requests\n\nstate that \" we hereby request\"  certain records,  and\n\nthe name of the Will County Public Records Group is listed at the top of the requests.  Again\n\nhowever,  your name is listed along with the group' s name and you signed the requests.  Finally, \n\ntwo other\n\nrequests\n\nstate\n\nthat\n\nthey are\n\nsubmitted\n\non behalf of\n\nthe Bolingbrook\n\nTransparency\n\n\fApril\n\n2,  2019\n\nPage 3\n\nGroup.  Nevertheless, \n\nthe Will County Public Records Group is listed at the top of these two\n\nrequests\n\ninstead of the Bolingbrook\n\nTransparency\n\nGroup,  and again,  your name is listed along\n\nwith the group'\n\ns name\n\nand you signed\n\nthe requests. \n\nIn this matter,  you signed each of the twelve FOIA requests, \n\nyou were listed as\n\nthe contact person for each of the twelve requests,  and the same telephone number that was listed\n\non your Request\n\nfor Review to this office was listed at\n\nthe top of each request.  Moreover, \n\nExhibits A and B to your Request\n\nfor Review are documents\n\nyou stated\n\nyou submitted\n\nto the\n\nDistrict \" whereupon\n\nthe members\n\nof the aforementioned\n\ngroups\n\ndeclare\n\ntheir association\n\nwith\n\nsuch\n\ngroups\n\nby way\n\nof signature.\"' \n\nThose documents\n\ndemonstrate\n\nthat each group had two\n\ndeclared members\n\nat\n\nthe time of the submission\n\nof the FOIA requests, \n\nand that you were one of\n\nthe two members of each group.  The documents\n\nindicate that both groups are intended to\n\npromote transparency\n\nin government. \n\nA statute should not be construed\n\nin a way that would defeat\n\nits purpose \" or yield\n\nan absurd or unjust\n\nresult.\"  Phoenix Bond & \n\nIndemnity Co.  v.  Pappas,  194 Ill.  2d 99,  107\n\n2000).  Comments\n\nduring the Senate\n\nfloor debate\n\nby one of the co- sponsors\n\nfor House Bill\n\n1716,  which\n\nas Public Act 97- 579 added\n\nthe recurrent\n\nrequester\n\nprovision\n\nin section\n\n2(  g)  to\n\nFOIA,  indicate that the legislation was intended to ease the strain on public bodies that had been\n\nheavily\n\nburdened\n\nby large numbers of FOIA requests: \n\nThe sweeping FOIA law that was put\n\ninto place was outstanding\n\nin\n\nprinciple,  outstanding\n\nconceptually, \n\nbut,  frankly, \n\nthe pendulum had\n\nswung\n\ntoo far and became\n\nvery impractical\n\nfor many\n\nmunicipalities\n\nand local units of government\n\nto maintain.  And,  in\n\nfact,  many\n\nlocal units of government\n\nwere overwhelmed\n\nby\n\ncommercial FOIA that got\n\nin the way of legitimate\n\ncitizen\n\ninquiries, \n\nand indeed\n\nit overwhelmed\n\nthe system and taxed the\n\ntaxpayers\n\nbecause\n\nthey were -- \n\nunder\n\na timeline\n\nthat was entirely\n\nunreasonable. \n\nRemarks of Sen.  Sandack,  May 30,  2011,  Senate\n\nDebate\n\non House\n\nBill\n\n1716, \n\nat 75. \n\nIf an individual\n\nwho seeks\n\nrecords\n\nfrom a public\n\nbody\n\non his or her own behalf\n\ncould avoid being deemed\n\na recurrent\n\nrequester\n\nby attributing\n\nadditional\n\nrequests\n\nto alleged\n\norganizations, \n\nthe General\n\nAssembly'\n\ns intent of providing\n\nrelief\n\nto public\n\nbodies\n\nburdened\n\nby\n\nlarge numbers of requests by the same persons would be frustrated. \n\nIt would be absurd to\n\nconstrue\n\nsections\n\n2( b)  and 2(  g)  of FOIA in a manner\n\nthat undermines\n\nthe General\n\nAssembly'\n\ns\n\nintent by enabling\n\nan individual\n\nto avoid being treated as a recurrent\n\nrequester\n\ndespite\n\nsubmitting\n\nthe requisite number of requests to qualify as a recurrent\n\nrequester.  For these reasons, \n\nthe Public\n\nGeneral, \n\nState of Illinois, \n\nat 2 ( February\n\n20,  2019). \n\nLetter from\n\nto Sarah Pratt,  Public Access Counselor,  Office of the Attorney\n\n\fApril 2,  2019\n\nPage 4\n\nAccess Bureau determines\n\nthat\n\nthe twelve requests you delivered on January\n\n3,  2019,  were\n\nsubmitted by a single \" person.\" \n\nIn your Request\n\nfor Review, \n\nyou also declare \"\n\nthat\n\nthe principle\n\npurpose\n\nof my\n\nFOIA requests\n\nto [ the District] \n\nis to access and disseminate\n\ninformation\n\nconcerning\n\nnews and\n\ncurrent events,\" \n\nthat you use a social media account\n\nto do so. 2 You therefore request\n\nthat\n\nthis\n\noffice consider whether\n\nthis activity qualifies\n\nyou for exemption\n\nfrom the recurrent\n\nrequester\n\ndesignation. \n\nAs quoted above,  section\n\n2( g)  of FOIA states\n\nthat \" requests made by news media\n\nand non- profit,  scientific, \n\nor academic\n\norganizations\" \n\nfor the one of these purposes\n\noutlined\n\nin\n\nthat section shall not qualify as requests made by a recurrent\n\nrequester. \n\nFirst,  we note that none of the twelve\n\nrequests\n\nat\n\nissue in this Request\n\nfor Review\n\nassert\n\nthat\n\nthe individual\n\nor group submitting\n\nthe request\n\nis a member of the news media or a\n\nnon- profit,  scientific, \n\nor academic\n\norganization, \n\nor assert\n\nthat\n\nthe principal\n\npurpose\n\nof the\n\nrequests was among the three principle purposes that are excluded from the definition of\n\nrecurrent\n\nrequester\" \n\nin section\n\n2( g)  of FOIA.  Consequently, \n\nthe District was unable to consider\n\nthe representation made to this office when making its own determination\n\nas to whether\n\nthe\n\nrequests qualified as requests submitted by a recurrent\n\nrequester. \n\nSecond, \n\nsection\n\n2( f) of FOIA (\n\n5 ILCS 140/ 2( f) ( West 2016))  defines \"\n\nnews\n\nmedia\" \n\nin relevant part as a \" newspaper\n\nor other periodical\n\nissued at regular\n\nintervals whether\n\nin\n\nprint\n\nor electronic\n\nformat,  a news\n\nservice\n\nwhether\n\nin print\n\nor electronic\n\nformat[.]\" \n\nIn the context\n\nof self -published websites purporting to be \" news media,\" \n\nthis office has opined that\n\nthe\n\nstatutory\n\ndefinition\n\nof \" news media\" \n\nrequires more\n\nthan simply\n\ndisseminating\n\ninformation\n\nthrough\n\na website\n\nor e- mail: \n\nMerely\n\ndisseminating\n\ninformation\n\nor criticism electronically\n\nthough\n\na website, \n\nor via e- mail,  does not meet\n\nthe statutory\n\ndefinition of \" news media.\" \n\nIf it did,  then any person who chose to\n\npost an opinion or comment\n\non a matter of public interest\n\nelectronically\n\nwould\n\nbecome\n\na news medium,  which was clearly\n\nnot\n\nthe intent of the General Assembly when it enacted the\n\nexception. \n\nIll.  Att' y Gen.  PAC Req.  Rev.  Ltr.  44649, \n\nissued\n\nDecember\n\n2,  2016,  at 3 ( quoting\n\nI11.  Att' y Gen.  PAC Req.  Rev.  Ltr. \n\n33323, \n\nissued February\n\n13,  2015,  at 4). \n\nIn the absence\n\nof Illinois\n\nlaw on how to interpret\n\nthe term \" news media,\" \n\nthis\n\noffice\n\nhas found\n\ncases\n\nfrom other\n\njurisdictions\n\ninterpreting\n\nsimilar\n\nstatutory\n\ndefinitions\n\nto be\n\npersuasive. \n\nThose\n\ncases hold that \" an individual\n\nor entity that self - publishes\n\ninformation\n\non the\n\nE- mail\n\nfrom\n\nto Public\n\nAccess (\n\nFebruary 20,  2019). \n\n\fApril\n\n2,  2019\n\nPage 5\n\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\n\neditorial\n\noversight\n\nor the creation of original\n\ncontent\n\nsimilar\n\nto that of traditional\n\nmedia\" \n\nin order\n\nto be considered \" news media.\"  Ill. Att' y Gen.  PAC Req.  Rev.  Ltr. 34653,  issued April 4,  2017, \n\nat 5- 6;  I11.  Att' y Gen. PAC Req.  Rev.  Ltr. 44649,  at 5.  We further observed that \"[ t] he General\n\nAssembly has not expanded the definition in FOIA to include other individuals or entities apart\n\nfrom those traditional media sources and their electronic versions.\"  I11.  Att'y Gen.  PAC Req. \n\nRev.  Ltr.  44649,  at 5. \n\nThis office has reviewed\n\nthe social media webpage\n\nlinked in your e- mail\n\nto this\n\noffice,  which is a Twitter page associated with the handle @BolingbrookComl . \n\nThe account\n\nappears\n\nto have tweeted\n\nfive times\n\nbefore\n\nthe submission\n\nof the Request\n\nfor Review,  with each\n\ntweet displaying a copy of a document or letter along with a one-  to three -sentence explanation\n\nof the meaning of the document.  These tweets are not original content or links to original\n\ncontent compiled by journalists using recognized journalistic standards,  but instead are images of\n\ndocuments\n\nwith short descriptions\n\nof those documents. \n\nThe @BolingbrookComl\n\ntwitter\n\npage\n\ntherefore\n\nlacks the essential\n\ncomponents\n\nof a \" newspaper,\" \"\n\nperiodical\" \n\nor \"\n\nnews\n\nservice\" \n\nincluded\n\nin FOIA'\n\ns definition\n\nof \" news\n\nmedia.\" \n\nYour\n\nuse of\n\nthis\n\nsocial\n\nmedia\n\npage\n\nto\n\ndisseminate\n\ninformation\n\nto the general public does not qualify you for exemption\n\nfrom the\n\nrecurrent\n\nrequester\" \n\nprovisions\n\nin FOIA.\n\n3\n\nAccordingly,  we conclude that the District did not violate FOIA by treating your\n\nFOIA requests as requests submitted by a recurrent requester in accordance with section 2( g)  of\n\nFOIA. \n\nIn footnote 8 of your Request for Review, you allege that on February 8,  2019, \n\nyou personally\n\nattempted\n\nto collect\n\nthe records compiled\n\nby the District\n\nin response\n\nto the\n\nJanuary\n\n3,  2019,  FOIA requests\n\nand pay the asserted\n\ncost of the recording medium upon which\n\nthe District\n\ncopied\n\nthe\n\nrecords, \n\nbut\n\nthat\n\nthe District\n\nrefused\n\nto accept\n\nyour\n\ncash\n\npayment\n\nand\n\ncontinued\n\nto withhold\n\nthe responsive materials\n\non that basis.  You request\n\nthat\n\nthis office\n\naddress\n\nthe appropriateness\n\nof this action in its adjudication\n\nof this matter.\n\ni4 Exhibit E to your\n\nRequest\n\nfor Review is a Romeoville Police Department\n\nincident\n\nreport,  which states that you\n\nattempted to pay the costs of your FOIA request\n\nin part with pennies.  Based upon the materials\n\nyou submitted and,  pursuant\n\nto section 9. 5( 1)  of FOIA ( 5 ILCS 140/ 9. 5( 0 (West 2016)),  which\n\npermits\n\nthe Attorney General\n\nto exercise\n\nhis discretion\n\nto resolve a Request\n\nfor Review \" by a\n\nmeans other than the issuance of a binding opinion,\"  we have determined that no further inquiry\n\nis warranted on this allegation. \n\nIt\n\nis also\n\nunclear\n\nfrom @BolingbrookComl'\n\ns Twitter\n\npage whether\n\nit\n\nis associated\n\nwith you\n\npersonally, \n\nthe Bolingbrook\n\nTransparency\n\nGroup,  or the Will County Public Records Group. \n\nGeneral, \n\nState of Illinois, \n\nat\n\n5 n. 8 ( February 20,  2019). \n\nLetter\n\nfrom\n\nto Sarah Pratt,  Public Access Counselor,  Office of the Attorney\n\n\fApril 2,  2019\n\nPage 6\n\nFinally, \n\nfootnote\n\n6 of your Request\n\nfor Review\n\nalleges\n\nthat\n\nthe District'\n\ns FOIA\n\nOfficer' s \" demand for private records in the possession of private citizens unequivocally\n\nrepresents\n\nan act of harassment,\" \n\nand states\n\nthat\n\nthrough\n\nyour Request\n\nfor Review, \n\nyou are\n\nsubmitting a \" formal grievance for harassment pursuant\n\nto section 2. 260 of School District Board\n\nPolicy. i5 However,  the Public Access Counselor' s authority is limited to addressing alleged\n\nviolations of FOIA and the Illinois Open Meeting Act.  15 ILCS 205/ 7( c) ( West 2016). \n\nAccordingly, \n\nthis office does not have the authority to address your grievance for alleged\n\nharassment. \n\nFor the reasons stated above,  this office has determined that no further action is\n\nwarranted in this matter.  This letter shall serve to close this matter.  Should you have questions, \n\nyou may contact me at ( 312)  814- 6437 or lbartelt@atg. state. il. us. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n56925 f no fi war sd\n\ncc: \n\nVia electronic\n\nmail\n\nMr.  Jim Blaney\n\nFOIA\n\nOfficer\n\nValley View School District 365U\n\n801 West Normantown Road\n\nRomeoville, \n\nIllinois 60446\n\nblaneyjc@vvsd. org\n\nGeneral, \n\nState of Illinois, \n\nat 5 n. 6 ( February\n\n20, \n\n2019). \n\nLetter\n\nfrom\n\nto Sarah Pratt,  Public Access Counselor,  Office of the Attorney\n\n\f","full_text_pre_reocr":"OFFICE OF THE ATTORNEY GENERAL\n\nSTATE OF ILLINOIS\n\nJuly 31, 2023\n\nKWAME RAOUL\n\nATTORNEY\n\nGENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. William Lee\n\nCity of Streator Police Department\n\n204 South Bloomington Street\n\nStreator, Illinois 61364\n\nb.lee@streatorpolice. org\n\nRE: FOIA Request\n\nfor Review: 2023 PAC 77333\n\nDear\n\nand Mr. Lee: \n\nThis determination is issued pursuant\n\nto section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Streator Police Department (Department) did\n\nnot violate FOIA by designating\n\nas a recurrent\n\nrequester. \n\nOn July 5, 2023, \n\nsubmitted a FOIA request\n\nto the Department\n\nseeking police reports for numerous recent\n\nincidents. On July 14, 2023, \n\nfiled a\n\nRequest\n\nfor Review with this office alleging that the Department had not responded to his FOIA\n\nrequest or taken an extension. On July 19, 2023, this office sent a copy of\n\nFOIA\n\nrequest and his Request\n\nfor Review to the Department and asked it if it had responded to\n\nFOIA request. The same day, the Department\n\ninformed this office that it had\n\ndesignated\n\nas a recurrent\n\nrequester, as defined by section 2(g) of FOIA (5 ILCS\n\n140/ 2(g) (West 2022)), and would respond to his requests within 21 business days of receipt. \n\nThe Department also provided this office with a copy of a notice it sent to\n\ninforming him of his status as a recurrent\n\nDETERMINATION\n\nSection 2(g) of FOIA defines a \" recurrent\n\nrequester\" as a \" person\" who, \n\nin the 12 months immediately\n\npreceding the request, has submitted\n\nto the same public body (i) a minimum of 50 requests for records, \n\nii) a minimum of 15 requests for records within a 30- day period, \n\nor (iii) a minimum of 7 requests for records within a 7- day period. \n\nFor purposes of this definition, \n\nrequests made by news media and\n\nnon- profit, scientific, or academic organizations\n\nshall not be\n\nconsidered\n\nin calculating the number of requests made in the time\n\nperiods in this definition when the principal purpose of the requests\n\nis (i) to access and disseminate\n\ninformation concerning news and\n\ncurrent or passing events, (ii) for articles of opinion or features of\n\ninterest\n\nto the public, or (iii) for the purpose of academic, \n\nscientific, or public research or education. \n\nA public body's time within which to respond to a request by a recurrent\n21 business days after receipt of the request. 5 ILCS 140/ 3.2(a) (West 2022). 1\n\nrequester\n\nis extended to\n\nacknowledged\n\nthat he has submitted approximately\n\n60 FOIA\n\nrequests in the year prior to his June 30, 2023, FOIA request. \n\ndisputes that he is a\n\nrecurrent\n\nrequester, however, because all of his FOIA requests were \" for information\n\nto be\n\ndisseminated\n\non my electronic news media page to educate the public of the tax funded jobs\n\nbeing done in the community.\"\n\n2\n\nexplained that he has a \" Facebook news media\n\ngroup page ' Streator Happenings'\" \n\nto which he posts the information\n\nhe receives from the\n\nDepartment.\n\n3 He also alleged that\n\nthe Department\n\nis aware of his Streator Happenings\n\nFacebook\n\npage; the Department\n\ndoes not dispute that it is aware of the page. \n\nFirst, although the Department\n\nis aware of the Streator Happenings\n\nFacebook\n\npage, the request at issue in this Request\n\nfor Review does not assert\n\nthat\n\nthe individual\n\nsubmitting the request\n\nis a member of the news media or a non- profit, scientific, or academic\n\nafter receipt of the request unless it extends the time to respond by an additional\n\nfive business days. 5 ILCS\n\n1 In contrast, a public body must respond to most other types of requests within 5 business days\n\n140/ 3(d) (West 2022). \n\nof the Attorney General] (July 25, 2023). \n\norganization, or assert\n\nthat the principal purpose of the request was among the three principal\n\npurposes that are excluded from the definition of \" recurrent\n\nrequester\" \n\nin section 2(g) of FOIA. \n\nConsequently, \n\nthe Department was unable to consider\n\nthe representation\n\nmade to\n\nthis office when making its own determination\n\nas to whether\n\nthe requests qualified as requests\n\nsubmitted by a recurrent\n\nrequester. \n\nSecond, section 2(f) of FOIA (5 ILCS 140/ 2(f) (West 2022)) defines \" news\n\nmedia\" \n\nin relevant part as a \" newspaper or other periodical\n\nissued at regular\n\nintervals whether\n\nin\n\nprint or electronic\n\nformat, a news service whether\n\nin print or electronic\n\nformat[.]\" \n\nIn the context\n\nof self- published websites purporting to be \" news media,\" \n\nthis office has determined\n\nthat\n\nthe\n\nstatutory definition of \" news media\" requires more than simply disseminating\n\ninformation\n\nthrough a website or e- mail: \n\nMerely disseminating\n\ninformation or criticism electronically\n\nthough a website, or via e- mail, does not meet\n\nthe statutory\n\ndefinition of \" news media.\" If it did, then any person who chose to\n\npost an opinion or comment on a matter of public interest\n\nelectronically would become a news medium, which was clearly\n\nnot the intent of the General Assembly when it enacted the\n\nexception. \n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 44649, issued\n\nDecember 2, 2016, at 3 (quoting Ill. Att' y Gen. PAC Req. Rev. Ltr. \n\n33323, issued February 13, 2015, at 4). \n\nIn the absence of Illinois law on how to interpret\n\nthe term \" news media,\" \n\nthis\n\noffice has found cases from other jurisdictions\n\ninterpreting\n\nsimilar statutory definitions\n\nto be\n\npersuasive. Those cases hold that \" an individual or entity that self- publishes\n\ninformation on the\n\nInternet generally must demonstrate\n\nsome adherence to recognized\n\njournalistic\n\nstandards such as\n\neditorial oversight or the creation of original content similar\n\nto that of traditional media\" \n\nin order\n\nto be considered \" news media.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 34653, issued April 4, 2017, \n\nat 5- 6; Ill. Att' y Gen. PAC Req. Rev. Ltr. 44649, at 5. We further observed that \"[ t]he General\n\nAssembly has not expanded the definition in FOIA to include other individuals or entities apart\n\nfrom those traditional media sources and their electronic versions.\" \n\nIll. Att' y Gen. PAC Req. \n\nRev. Ltr. 44649, at 5. \n\nThis office has reviewed the Streator Happenings\n\npage on the Facebook\n\nsocial\n\nmedia platform. The page is a \" Public group\" \n\nthat describes\n\nitself as \" a news media group that\n\nis\n\nfor informing good people of Streator of what does (and doesn' t) happen in Streator, bad or good, \n\nalthough I do try to highlight\n\nthe problems to hopefully inspire others to ask for better.\" 4 The\n\nAbout\" section also notes \"[\n\nt]his page is editorialized, and the narrative may be controlled to try\n\nto promote my personal desires to see better\n\nfor the many good caring people of Streator, by\n\nexposing the public corruption, \n\nlack of proper enforcement of laws that I believe have hurt the\n\ncommunity\ncreated two years ago, has 7,078 members, and had 101 posts in the past month. 6\n\nfor so long, and the problems that are hidden by the leaders.\" 5 The group was\n\nThe posts to Streator Happenings\n\nvary in nature. Some posts are pictures of arrest\n\nreports, \n\nincluding mugshots, with or without\n\ncommentary\n\nabout\n\nthe arrest. \n\nperiodically\n\nposts lists of police calls, pictures of court documents, or links to news\n\narticles. He frequently posts his opinions concerning alleged crimes in Streator. Other posts are\n\nmemes, questions from group members looking for advice or recommendations, \n\nor inter- group\n\nmember\n\ninteractions. While it is clear that\n\nis disseminating\n\ncrime- related\n\ninformation, \" Streator Happenings\" \n\nis not a news media outlet. Upon review, the posts are not\n\noriginal content by journalists using recognized\n\njournalistic\n\nstandards, but instead are largely\n\nimages accompanied\n\nby short summaries or opinions. The Streator Happenings\n\ngroup page\n\ntherefore lacks the essential components of a \" newspaper,\" \"\n\nperiodical\" or \" news service\" \n\nincluded in FOIA's definition of \" news media.\" \n\nuse of this social media page to\n\ndisseminate\n\ninformation to the general public does not qualify him for exemption from the\n\nrecurrent\n\nrequester\" provisions\n\nin FOIA. \n\nAccordingly, we conclude that the Department did not violate FOIA by treating\n\nFOIA requests as requests submitted by a recurrent\n\nrequester\n\nin accordance with\n\nsection 2(g) of FOIA. \n\nIn his Request\n\nfor Review,\n\nraised questions about when individuals' \n\nFOIA requests may be combined and counted together\n\nto calculate whether\n\nthe recurrent\n\nrequester\n\nthreshold has been met. To provide education on this topic, this office has attached to\n\nthis determination\n\nselected determination\n\nletters discussing factual scenarios\n\ninvolving multiple\n\nrequesters and the applicability of section 3.2 of FOIA. See Ill. Att' y Gen. PAC Req. Rev. Ltr. \n\n61809, issued May 7, 2020; Ill. Att' y Gen. PAC Req. Rev. Ltr. 56925, issued April 2, 2019. \n\nJuly 25, 2023). \n\nJuly 25, 2023). \n\n4 Streator Happenings, About, https:// www. facebook. com/ groups/ 741839786483796/ (last visited\n\n5 Streator Happenings, About, https:// www. facebook. com/ groups/ 741839786483796/ (last visited\n\nJuly 25, 2023). The page currently has a post noting that\n\npaused the group as of July 10, 2023. \n\n6 Streator Happenings, About, https:// www. facebook. com/ groups/ 741839786483796/ (last visited\n\nThe Public Access Counselor\n\nhas determined\n\nthat resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\n\nany questions, please contact me at laura. harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\n\nPublic Access Bureau\n\nAttachment\n\n77333 f 2g proper pd\n\nOFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE OF ILLINOIS\n\nMay 7, 2020\n\nWAME RAOUL\n\nATTORNEY\n\nGENERAL\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Jordan\n\nT. Klein\n\nErickson, \n\nDavis, Murphy, Johnson & Walsh, Ltd. \n\n132 South Water Street, Suite 610\n\nDecatur, \n\nIllinois 62523\n\njklein@erick§\n\nondavislaw.\n\ncom\n\nRE: FOIA Request\n\nfor Review — \n\n2020 PAC o 1809\n\nDear\n\nand Mr. Klein: \n\nThis determination\n\nis issued pursuant\n\nto section 9. 5(0 of the Freedom of\n\nInformation Act (FOIA) (5 ILCS\n\n140/ 9. 5(0 (West 201. 8)). \n\nFor\n\nthe\n\nreasons\n\nthat\n\nfollow, \n\nthe\n\nPublic\n\nAccess\n\nBureau\n\nconcludes\n\nthat\n\nthe Decatur\n\nPublic\n\nLibrary (Library) \n\nimproperly\n\ndesignated\n\nas\n\na recurrent\n\nrequester. \n\nOn January\n\n31, 2020, \n\nsubmitted\n\na FOIA request\n\nto the Library\n\nseeking five categories of e- mails. \n\nsigned the request with his own name, and did\n\nnot\n\nindicate\n\nthat he was affiliated with any group or organiztion. \n\nThe same day, \n\nthe Library\n\ninformed\n\nthat\n\nit was treating\n\nhim as a recurrent\n\nrequester, \n\nas defined\n\nby section\n\n2(g) \n\nof FOIA! (5 ILCS\n\n140/ 2(g) (West\n\n2018)), \n\nand would respond\n\nto his request within 21 business\n\ndays. The Library listed 51 FOIA requests submitted between the dates of April 22, 2019, and\n\nJanuary\n\n30, 2020, which it contended\n\nwere sent by\n\nor were \" DPL [ Decatur Public\n\nLibrary]: Watchdogs requests [\n\nthat] note '\n\non behalf of DPL Watchdogs' or are sent. \n\nfrom an 'email address that\n\nis associated with\n\nI On February\n\n15, 2020, \n\nfiled this Request\n\nfor Review challenging\n\nthe Library's designation\n\nof him as a recurrent\n\nrequester, \n\ncontending\n\nthat he did not send all of the FOIA requests\n\nthe Library\n\ncited in its\n\nE- mail from Decatur Public Library, FOIA Officers to [\n\nJanuary 31, 2020). \n\n500\n\nSouth\n\nSecond\n\nStreet, \n\nSpringfield, \n\nIllinois\n\n62701 • (217) \n\n782-\n\n1090 • \n\nTT,': (877) \n\n844-\n\n5461 • \n\nFax: (217) \n\n782-\n\n7046 • \n\n100 West Randolph\n\nStreet, \n\nChicago, \n\nIllinois\n\n60601 • (312) \n\n814-\n\n3000 • \n\nTTY: (800) \n\n964-\n\n3013 • \n\nFax: (312) \n\n814-\n\n3806\n\n601\n\nSouth\n\nUniversity\n\nAve., Carbondale, \n\nJanuary 31, 2020, letter. \n\nacknowledged that he contributes to the DPL Watchdogs\n\nwebsite (\"\n\nkeepdplhonest.\n\nwordpress.\n\ncom\") \n\nand that he has used the DPL Watchdogs\n\ne- mail\n\naddress\n\nto make FOIA requests\n\nto the Library, but he contended\n\nthat he always\n\nsigned his name\n\nto those requests. \n\nHe asserted\n\nthat he did not submit\n\nany of the requests\n\nfrom DPL Watchdogs\n\nthat\n\ndo not\n\nbear\n\nhis\n\nname. \n\nReview and asked\n\nit to provide\n\na detailed\n\nexplanation\n\nof the\n\nfactual and\n\nlegal\n\nbases\n\nfor\n\nthe\n\nOn February\n\n24, 2020, \n\nthis office sent\n\nthe Lib ary a copy of the Request\n\nfor • \n\nLibrary's 'designation of\n\nas a recurrent\n\nrequester and to provide copies of the FOIA\n\nrequests the Library used in its determination. On March 4, 2020, the Library provided a written\n\nresponse, and the requested materials. \n\nOn March\n\n9, 2020, \n\nthi\n\noffice forwarded\n\nthe Library's\n\nwritten\n\nresponse\n\nto\n\nHe replied\n\non March\n\n10, 2020. \n\nDETERMINATION\n\nDefinition\n\nof Recurrent\n\nRequester\n\nSection\n\n2(b) of FOIA (5 ILCS 140/ 2(b) (West 2018) defines\n\na \" person\" as \" any\n\nindividual, \n\ncorporation, \n\npartnership, \n\nfirm, organization\n\nor association, \n\nacting\n\nindividually\n\nor as a\n\ngroup.\" \n\nSection\n\n2(g) \n\nof FOIA\n\ndefines\n\na \"\n\nrecurrent\n\nrequester\" \n\nas\n\na \" person\" \n\nwho, \"\n\nin the 12\n\nmonths\n\nimmediately\n\npreceding\n\nthe request, has submitted\n\nto he same public body (i) a minimum\n\nof 50 requests\n\nfor\n\nrecords, (ii) a minimum\n\nof 15 requests\n\nfor ifecords\n\nwithin a 30 - day period, or\n\niii) a minimum\n\nof 7 requests\n\nfor\n\nrecords\n\nwithin\n\na 7 -day period.\" \n\nA public body's time to\n\nrespond to a request by a recurrent\n\nrequester\n\nis extended to 21 business days after receipt of the\n\nrequest. \n\n5 ILCS\n\n140/ 3. 2(a) (West 2018). 2\n\nThis office has reviewed\n\nthe copies of the FOIA requests\n\nthe Library\n\nprovided\n\nto\n\nthis office and observed\n\nthat many were signed by\n\nsome were signed by\n\non\n\nbehalf\n\nof the DPL Watchdogs, \n\nand\n\nsome\n\nwere\n\nsigned\n\nonl)) by \" DPL Watchdogs.\" \n\nThe\n\nLibrary argued that all of the requests should be attributed to\n\nIt asserted that\n\nis the sole contributor to the DPL Watchdogs website based on the fact that he is the\n\nonly author\n\nlisted on the website's posts. The Library\n\ncited this office's non- binding\n\ndetermination\n\nin Ill. Att' y Gen. PAC Req. Rev. Ltr. 56925, \n\nissued April 2, 2019, for the\n\nproposition\n\nthat all of the requests may be considered\n\nas coming from the same \" person\" as\n\ndefined\n\nin section\n\n2(b) of FOIA (5 ILCS\n\n140/ 2(b) (West\n\n201)). \n\nIn that\n\ncase, \n\nan individual\n\nsubmitted FOIA requests\n\nto a public body in his personal\n\ncapacity and on behalf of two\n\norganizations. \n\nThe individual\n\nhad signed\n\nhis name to each of the requests, \n\nand therefore\n\nthis\n\n2 In contrast, a public body must respond to most other t' pes of requests within 5 business days\n\nafter receipt of the request unless it extends the time to respond by an add' tional five business days. 5 ILCS\n\noffice concluded that all of the requests could be attributed to that\n\nindividual\n\nfor purposes of\n\ndesignating\n\nhim as a recurrent\n\nrequester. \n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 56925, at 2- 3. \n\nposts\n\non the website, \n\nbut argued\n\nthat\n\nthe website\n\nhas other contributors\n\nwho submit FOIA\n\nIn his reply, \n\nacknowledged\n\nthat he is the only author\n\nlisted for the\n\nrequests\n\nto the Library. \n\nAfter reviewing the records, this office is unable to determine who submitted the\n\nFOIA requests\n\nsigned\n\nonly\n\nas \" DPL Watchdogs.\" This office has received at least one other\n\nRequest\n\nfor Review (2020 PAC 62320) \n\nfrom a contributor\n\nto the DPL Watchdogs\n\nwebsite who\n\nmay have used the DPL Watchdogs\n\ne- mail address. Unlike\n\nthe circumstance\n\nin Ill. Att' y Gen. \n\nPAC Req. Rev. Ltr. 56925, where the requester\n\nsigned everyOIA request, \n\nthere is insufficient\n\nproof that\n\nsubmitted the DPL Watchdogs requestthat he did not sign. Further, not\n\nall\n\nrequests\n\nsubmitted\n\nby\n\ncould\n\nreasonably\n\nbe considered\n\nto have been on behalf of\n\nthe DPL Watchdogs website, as the first post on that site is dated August 29, 2019, 3 months after\n\nmany of the FOIA requests\n\ncited by the Library as proof of\n\ns recurrent\n\nrequester\n\nstatus. \n\nAccordingly, \n\nfor purposes of calculating\n\nstatus as a recurrent\n\nrequester, \n\nthe Library may count all FOIA requests\n\nthat\n\nsigned, either\n\nin his personal\n\ncapacity or on behalf of the DPL Watchdogs, To calculate the DPL Watchdogs' status as a\n\nrecurrent\n\nrequester, \n\nthe Library may count all FOIA requests\n\nsigned by the DPL Watchdogs\n\nand\n\nall FOIA requests\n\nsigned by individuals\n\non behalf of the DPI. J Watchdogs, \n\nincluding\n\nBecause\n\nhe has denied sending\n\nthem and there is insufficient\n\nevidence\n\nto the contrary, \n\nthe FOIA\n\nrequests\n\nsigned only by the DPL Watchdogs' may not be considered\n\nin determining\n\nwhether\n\nis a recurrent\n\nrequester. \n\nTherefore, \n\nthe Library\n\nhas not demonstrated\n\nthat\n\nsubmitted\n\nthe requisite\n\nnumber of FOIA requests\n\nto be designated\n\nas a recurrent\n\nrequester. \n\nThis\n\noffice requests that the Library refrain from treating\n\nor DPL Watchdogs\n\nas a\n\nrecurrent\n\nrequester\" until\n\nthey have submitted\n\nthe requisite\n\nnumber of requests\n\nto qualify under\n\nthe definition of that\n\nterm in section 2(g) of FOIA. \n\nhttps://\n\nkeepdplhonest.\n\nwordpress.\n\ncom/\n\n2019/\n\n08/ 29/\n\nrick- meyers-\n\ncostly-\n\nadventures-\n\nin- d- c/ \n\nThe Public Access Counselor\n\nhas determined\n\nthat\n\nresolution\n\nof this matter\n\ndoes\n\nnot\n\nrequire the issuance of a binding opinion. This letter serves\n\nto close this matter. \n\nIf you have\n\nany questions, please contact me at (217) 524- 7958 or LHarter\n\natg. state. il. us. \n\nVery truly yours, \n\nLAURA S. HARTER\n\nDeputy Bureau Chief\n\nPublic\n\nAccess Bureau\n\n61809 f 2g improper\n\nlib\n\nOFFICE OF THE ATTORNEY\n\nGENERAL\n\nSTATE\n\nOF\n\nILLINOIS\n\nApril 2, 2019\n\nKWAME RAOUL\n\nATTORNEY\n\nGENERAL\n\nVia electronic mail\n\nRE: FOIA Request\n\nfor Review — 2019 PAC 56925\n\nDear\n\nThis determination\n\nletter\n\nis issued pursuant\n\nto section\n\n9. 5(c) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9. 5(c) (West 2016)). For the reasons\n\nthat\n\nfollow, the. \n\nPublic Access Bureau concludes that no further action is warranted in this matter. \n\nOn January\n\n3, 2019, you delivered\n\ntwelve FOIA requests\n\nto Valley View\n\nCommunity\n\nUnit School District\n\n365U (District) \n\nseeking\n\ncopies of various\n\nrecords. \n\nOn January\n\n10, 2019, the District notified you in writing that\n\nit had determined\n\nthat you qualify as a\n\nrecurrent\n\nrequester\" \n\npursuant\n\nto section\n\n2(g)(iii) of FOIA (5 ILCS 140/ 2(g)(iii) (West 2016)), \n\nbecause\n\nyou had submitted\n\nto the same public body a minimum of seven requests\n\nfor records\n\nwithin a seven- day period. \n\nThe District\n\nfurther\n\nstated that\n\nit would initially\n\nrespond\n\nto the FOIA\n\nrequests within 21 business\n\ndays of receipt, as permitted\n\nby section\n\n3. 2 of FOIA (5 ILCS 140/ 3. 2\n\nWest\n\n2016)). \n\nOn February\n\n4, 2019, \n\nthe District\n\nresponded\n\nto all\n\ntwelve requests, making\n\navailable\n\nto you electronic\n\ncopies\n\nof records\n\nresponsive\n\nto certain\n\nrequests\n\nwith redactions, \n\nasserting\n\nthat\n\nthe District was unable to locate records\n\nresponsive\n\nto other\n\nrequests, \n\nand notifying\n\nyou that your\n\nrequest\n\nfor security\n\ncamera\n\nfootage was unduly\n\nburdensome, \n\nas defined\n\nin section\n\n3(g) of FOIA (5 ILCS 140/ 3(g) (West)), and requesting\n\nthat you narrow that\n\nrequest. \n\nOn March 13, 2019, you furnished all the required information to submit a\n\nRequest\n\nfor Review to the Public Access\n\nBureau. \n\nYour Request\n\nfor Review argues\n\nthat\n\nthe\n\nDistrict\n\nimproperly\n\ndesignated\n\nthe twelve requests\n\nyou delivered\n\non January\n\n3, 2019, as requests\n\nsubmitted\n\nby a recurrent\n\nrequester. \n\nYou asserted\n\nthe requests\n\nwere submitted\n\non behalf of three\n\nseparate parties, \n\nthat each request explicitly\n\nidentified\n\nthe responsible\n\nparty, and that\n\nthe District\n\nviolated FOIA by failing to recognize\n\nthese parties\n\nas independent\n\nentities. \n\n500\n\nSouth\n\nSecond\n\nStreet, \n\nSpringfield, \n\nIllinois\n\n62701 • (217) \n\n782-\n\n1090 • \n\nTTY: (877) \n\n844-\n\n5461 • \n\nFax: (217) \n\n782-\n\n7046\n\n100 West Randolph\n\nStreet, Chicago, \n\nIllinois\n\n60601 • (312) 814- 3000 • TTY: (800) 964- 3013 • Fax: (312) 814- 3806\n\n601\n\nSouth\n\nUniversity\n\nAve., Carbondale, \n\nIllinois\n\n62901 • (618) \n\n529-\n\n6400 • \n\nrequester\" \n\nas: \n\nSection 2(g) of FOIA (5 ILCS 140/ 2(g) (West 2016)), defines a \" recurrent\n\na person\n\nthat, \n\nin the 12 months\n\nimmediately\n\npreceding\n\nthe request, \n\nhas submitted\n\nto the same public body (i) a minimum of 50\n\nrequests\n\nfor records, (ii) a minimum of 15 requests\n\nfor records\n\nwithin a 30 - day period, or (iii) a minimum of 7 requests for records\n\nwithin a 7 -day period. For purposes of this definition, \n\nrequests\n\nmade by news media and non- profit, scientific, or academic\n\norganizations\n\nshall not be considered in calculating the number of\n\nrequests made in the time periods in this definition when the\n\nprincipal purpose of the requests is (i) to access and disseminate\n\ninformation\n\nconcerning\n\nnews and current or passing events, (ii) for\n\narticles of opinion or features of interest\n\nto the public, or (iii) for\n\nthe purpose\n\nof academic, \n\nscientific, \n\nor public\n\nresearch\n\nor. \n\neducation. (Emphasis added.) \n\nIf the twelve requests submitted on January 3, 2019, are deemed to have been\n\nsubmitted by the same \" person,\" \n\nthen that person meets the definition of a recurrent\n\nrequester\n\nso\n\nlong as that \" person\" \n\nis not a member of the news media or a non- profit, scientific, or academic\n\norganization\n\nsubmitting\n\nthe request\n\nfor one of the purposes\n\noutlined\n\nin section\n\n2(g). \n\nSection 2(b) of FOIA (5 ILCS 140/ 2(b) (West 2016) defines \" person\" as \" any\n\nindividual, \n\ncorporation, \n\npartnership, \n\nfirm, organization\n\nor association, \n\nacting individually\n\nor as a\n\ngroup.\" Your Request\n\nfor Review argues that several of the twelve FOIA requests you delivered\n\non January 3, 2019, were submitted on behalf of two associations— the Will County Public\n\nRecords Group and the Bolingbrook Transparency Group— and that by attributing those FOIA\n\nrequests to you personally, \n\nthe District\n\nimproperly failed to recognize these groups as \" persons\" \n\nwho have the authority to submit FOIA requests on their own behalf. \n\nFour of the FOIA requests you delivered to the District on January 3, 2019, were\n\nsubmitted on your behalf— your name is listed on the top of the request, you state in the request\n\nI hearby request\" certain records, and you signed the requests. Four of the requests\n\nstate that\n\nthey are submitted on behalf of the Bolingbrook Transparency Group— the requests state that\n\nwe hereby request\" certain records, and the name of the Bolingbrook Transparency Group is\n\nlisted at\n\nthe top of the requests. However, \n\nyour name\n\nis listed along with the group's name and\n\nyou signed the requests. Two of the requests state that they are submitted on behalf of the Will\n\nCounty Public Records Group— the requests\n\nstate that \" we hereby request\" certain records, and\n\nthe name of the Will County Public Records Group is listed at the top of the requests. Again\n\nhowever, your name is listed along with the group's name and you signed the requests. Finally, \n\ntwo other\n\nrequests\n\nstate\n\nGroup. Nevertheless, \n\nthe Will County Public Records Group is listed at the top of these two\n\nrequests\n\ninstead of the Bolingbrook\n\nTransparency\n\nGroup, and again, your name is listed along\n\nwith the group's name\n\nand you signed\n\nthe requests. \n\nIn this matter, you signed each of the twelve FOIA requests, \n\nyou were listed as\n\nthe contact person for each of the twelve requests, and the same telephone number that was listed\n\non your Request\n\nfor Review to this office was listed at\n\nthe top of each request. Moreover, \n\nExhibits A and B to your Request\n\nfor Review are documents\n\nyou stated\n\nyou submitted\n\nto the\n\nDistrict \" whereupon\n\nthe members\n\nof the aforementioned\n\ngroups\n\ndeclare\n\ntheir association\n\nwith\n\nsuch\n\ngroups\n\nby way\n\nof signature.\"' \n\nThose documents\n\ndemonstrate\n\nthat each group had two\n\ndeclared members\n\nat\n\nthe time of the submission\n\nof the FOIA requests, \n\nand that you were one of\n\nthe two members of each group. The documents\n\nindicate that both groups are intended to\n\npromote transparency\n\nin government. \n\nA statute should not be construed\n\nin a way that would defeat\n\nits purpose \" or yield\n\nan absurd or unjust\n\nresult.\" Phoenix Bond & \n\nIndemnity Co. v. Pappas, 194 Ill. 2d 99, 107\n\n2000). Comments\n\nduring the Senate\n\nfloor debate\n\nby one of the co- sponsors\n\nfor House Bill\n\n1716, which\n\nas Public Act 97- 579 added\n\nthe recurrent\n\nrequester\n\nprovision\n\nin section\n\n2(g) to\n\nFOIA, indicate that the legislation was intended to ease the strain on public bodies that had been\n\nheavily\n\nburdened\n\nby large numbers of FOIA requests: \n\nThe sweeping FOIA law that was put\n\ninto place was outstanding\n\nin\n\nprinciple, outstanding\n\nconceptually, \n\nbut, frankly, \n\nthe pendulum had\n\nswung\n\ntoo far and became\n\nvery impractical\n\nfor many\n\nmunicipalities\n\nand local units of government\n\nto maintain. And, in\n\nfact, many\n\nlocal units of government\n\nwere overwhelmed\n\nby\n\ncommercial FOIA that got\n\nin the way of legitimate\n\ncitizen\n\ninquiries, \n\nand indeed\n\nit overwhelmed\n\nthe system and taxed the\n\ntaxpayers\n\nbecause\n\nthey were -- \n\nunder\n\na timeline\n\nthat was entirely\n\nunreasonable. \n\nRemarks of Sen. Sandack, May 30, 2011, Senate\n\nDebate\n\non House\n\nBill\n\n1716, \n\nat 75. \n\nIf an individual\n\nwho seeks\n\nrecords\n\nfrom a public\n\nbody\n\non his or her own behalf\n\ncould avoid being deemed\n\na recurrent\n\nrequester\n\nby attributing\n\nadditional\n\nrequests\n\nto alleged\n\norganizations, \n\nthe General\n\nAssembly's intent of providing\n\nrelief\n\nto public\n\nbodies\n\nburdened\n\nby\n\nlarge numbers of requests by the same persons would be frustrated. \n\nIt would be absurd to\n\nconstrue\n\nsections\n\n2(b) and 2(g) of FOIA in a manner\n\nthat undermines\n\nthe General\n\nAssembly's\n\nintent by enabling\n\nan individual\n\nto avoid being treated as a recurrent\n\nrequester\n\ndespite\n\nsubmitting\n\nthe requisite number of requests to qualify as a recurrent\n\nrequester. For these reasons, \n\nthe Public\n\nAccess Bureau determines\n\nthat\n\nthe twelve requests you delivered on January\n\n3, 2019, were\n\nsubmitted by a single \" person.\" \n\nIn your Request\n\nfor Review, \n\nyou also declare \"\n\nthat\n\nthe principle\n\npurpose\n\nof my\n\nFOIA requests\n\nto [ the District] \n\nis to access and disseminate\n\ninformation\n\nconcerning\n\nnews and\n\ncurrent events,\" \n\nthat you use a social media account\n\nto do so. 2 You therefore request\n\nthat\n\nthis\n\noffice consider whether\n\nthis activity qualifies\n\nyou for exemption\n\nfrom the recurrent\n\nrequester\n\ndesignation. \n\nAs quoted above, section\n\n2(g) of FOIA states\n\nthat \" requests made by news media\n\nand non- profit, scientific, \n\nor academic\n\norganizations\" \n\nfor the one of these purposes\n\noutlined\n\nin\n\nthat section shall not qualify as requests made by a recurrent\n\nrequester. \n\nFirst, we note that none of the twelve\n\nrequests\n\nat\n\nissue in this Request\n\nfor Review\n\nassert\n\nthat\n\nthe individual\n\nor group submitting\n\nthe request\n\nis a member of the news media or a\n\nnon- profit, scientific, \n\nor academic\n\norganization, \n\nor assert\n\nthat\n\nthe principal\n\npurpose\n\nof the\n\nrequests was among the three principle purposes that are excluded from the definition of\n\nrecurrent\n\nrequester\" \n\nin section\n\n2(g) of FOIA. Consequently, \n\nthe District was unable to consider\n\nthe representation made to this office when making its own determination\n\nas to whether\n\nthe\n\nrequests qualified as requests submitted by a recurrent\n\nrequester. \n\nSecond, \n\nsection\n\n2(f) of FOIA (5 ILCS 140/ 2(f) (West 2016)) defines \"\n\nnews\n\nmedia\" \n\nin relevant part as a \" newspaper\n\nor other periodical\n\nissued at regular\n\nintervals whether\n\nin\n\nprint\n\nor electronic\n\nformat, a news\n\nservice\n\nwhether\n\nin print\n\nor electronic\n\nformat[.]\" \n\nIn the context\n\nof self -published websites purporting to be \" news media,\" \n\nthis office has opined that\n\nthe\n\nstatutory\n\ndefinition\n\nof \" news media\" \n\nrequires more\n\nthan simply\n\ndisseminating\n\ninformation\n\nthrough\n\na website\n\nor e- mail: \n\nMerely\n\ndisseminating\n\ninformation\n\nor criticism electronically\n\nthough\n\na website, \n\nor via e- mail, does not meet\n\nthe statutory\n\ndefinition of \" news media.\" \n\nIf it did, then any person who chose to\n\npost an opinion or comment\n\non a matter of public interest\n\nelectronically\n\nwould\n\nbecome\n\na news medium, which was clearly\n\nnot\n\nthe intent of the General Assembly when it enacted the\n\nexception. \n\nIll. Att' y Gen. PAC Req. Rev. Ltr. 44649, \n\nissued\n\nDecember\n\n2, 2016, at 3 (quoting\n\nI11. Att' y Gen. PAC Req. Rev. Ltr. \n\n33323, \n\nissued February\n\n13, 2015, at 4). \n\nIn the absence\n\nof Illinois\n\nlaw on how to interpret\n\nthe term \" news media,\" \n\nthis\n\noffice\n\nhas found\n\ncases\n\nfrom other\n\njurisdictions\n\ninterpreting\n\nsimilar\n\nstatutory\n\ndefinitions\n\nto be\n\npersuasive. \n\nThose\n\ncases hold that \" an individual\n\nor entity that self - publishes\n\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\n\neditorial\n\noversight\n\nor the creation of original\n\ncontent\n\nsimilar\n\nto that of traditional\n\nmedia\" \n\nin order\n\nto be considered \" news media.\" Ill. Att' y Gen. PAC Req. Rev. Ltr. 34653, issued April 4, 2017, \n\nat 5- 6; I11. Att' y Gen. PAC Req. Rev. Ltr. 44649, at 5. We further observed that \"[ t] he General\n\nAssembly has not expanded the definition in FOIA to include other individuals or entities apart\n\nfrom those traditional media sources and their electronic versions.\" I11. Att'y Gen. PAC Req. \n\nRev. Ltr. 44649, at 5. \n\nThis office has reviewed\n\nthe social media webpage\n\nlinked in your e- mail\n\nto this\n\noffice, which is a Twitter page associated with the handle @BolingbrookComl. \n\nThe account\n\nappears\n\nto have tweeted\n\nfive times\n\nbefore\n\nthe submission\n\nof the Request\n\nfor Review, with each\n\ntweet displaying a copy of a document or letter along with a one- to three -sentence explanation\n\nof the meaning of the document. These tweets are not original content or links to original\n\ncontent compiled by journalists using recognized journalistic standards, but instead are images of\n\ndocuments\n\nwith short descriptions\n\nof those documents. \n\nThe @BolingbrookComl\n\ntwitter\n\npage\n\ntherefore\n\nlacks the essential\n\ncomponents\n\nof a \" newspaper,\" \"\n\nperiodical\" \n\nor \"\n\nnews\n\nservice\" \n\nincluded\n\nin FOIA's definition\n\nof \" news\n\nmedia.\" \n\nYour\n\nuse of\n\nthis\n\nsocial\n\nmedia\n\npage\n\nto\n\ndisseminate\n\ninformation\n\nto the general public does not qualify you for exemption\n\nfrom the\n\nrecurrent\n\nrequester\" \n\nprovisions\n\nin FOIA.\n\n3\n\nAccordingly, we conclude that the District did not violate FOIA by treating your\n\nFOIA requests as requests submitted by a recurrent requester in accordance with section 2(g) of\n\nFOIA. \n\nIn footnote 8 of your Request for Review, you allege that on February 8, 2019, \n\nyou personally\n\nattempted\n\nto collect\n\nthe records compiled\n\nby the District\n\nin response\n\nto the\n\nJanuary\n\n3, 2019, FOIA requests\n\nand pay the asserted\n\ncost of the recording medium upon which\n\nthe District\n\ncopied\n\nthe\n\nrecords, \n\nbut\n\nthat\n\nthe District\n\nrefused\n\nto accept\n\nyour\n\ncash\n\npayment\n\nand\n\ncontinued\n\nto withhold\n\nthe responsive materials\n\non that basis. You request\n\nthat\n\nthis office\n\naddress\n\nthe appropriateness\n\nof this action in its adjudication\n\nof this matter.\n\ni4 Exhibit E to your\n\nRequest\n\nfor Review is a Romeoville Police Department\n\nincident\n\nreport, which states that you\n\nattempted to pay the costs of your FOIA request\n\nin part with pennies. Based upon the materials\n\nyou submitted and, pursuant\n\nto section 9. 5(1) of FOIA (5 ILCS 140/ 9. 5(0 (West 2016)), which\n\npermits\n\nthe Attorney General\n\nto exercise\n\nhis discretion\n\nto resolve a Request\n\nfor Review \" by a\n\nmeans other than the issuance of a binding opinion,\" we have determined that no further inquiry\n\nis warranted on this allegation. \n\nIt\n\nis also\n\nunclear\n\nfrom @BolingbrookComl's Twitter\n\npage whether\n\nit\n\nis associated\n\nwith you\n\npersonally, \n\nthe Bolingbrook\n\nTransparency\n\nGroup, or the Will County Public Records Group. \n\nGeneral, \n\nFinally, \n\nfootnote\n\n6 of your Request\n\nfor Review\n\nalleges\n\nthat\n\nthe District's FOIA\n\nOfficer's \" demand for private records in the possession of private citizens unequivocally\n\nrepresents\n\nan act of harassment,\" \n\nand states\n\nthat\n\nthrough\n\nyour Request\n\nfor Review, \n\nyou are\n\nsubmitting a \" formal grievance for harassment pursuant\n\nto section 2. 260 of School District Board\n\nPolicy. i5 However, the Public Access Counselor's authority is limited to addressing alleged\n\nviolations of FOIA and the Illinois Open Meeting Act. 15 ILCS 205/ 7(c) (West 2016). \n\nAccordingly, \n\nthis office does not have the authority to address your grievance for alleged\n\nharassment. \n\nFor the reasons stated above, this office has determined that no further action is\n\nwarranted in this matter. This letter shall serve to close this matter. Should you have questions, \n\nyou may contact me at (312) 814- 6437 or lbartelt@atg. state. il. us. \n\nVery truly yours, \n\nLEAH BARTELT\n\nAssistant Attorney General\n\nPublic Access Bureau\n\n56925 f no fi war sd\n\ncc: \n\nVia electronic\n\nmail\n\nMr. Jim Blaney\n\nFOIA\n\nOfficer\n\nValley View School District 365U\n\n801 West Normantown Road\n\nRomeoville, \n\nIllinois 60446\n\nblaneyjc@vvsd. org\n\nGeneral, \n\nState of Illinois, \n\nat 5 n. 6 (February\n\n20, \n\n2019). \n\nLetter\n\nfrom\n\nto Sarah Pratt, Public Access Counselor, Office of the Attorney","plain_summary_pre_resummarize":null,"card_headline":"A police department's designation of a recurrent requester","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":1,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":"0","date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77333/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\n\nATTORNEY GENERAL\n\nJuly 31, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. William Lee\n\nCity of Streator Police Department\n204 South Bloomington Street\nStreator, Illinois 61364\nb.lee@streatorpolice.org\n\nRE: FOIA Request for Review: 2023 PAC 77333\n\nDear and Mr. Lee:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons that follow, the\n\nPublic Access Bureau concludes that the City of Streator Police Department (Department) did\nnot violate FOIA by dscignating as a recurrent requester.\n\nOn July 5, 2023, PF submitted a FOIA request to the ian ris\n\nseeking police reports for numerous recent incidents. On July 14, 2023, filed a\nRequest for Review with this office alleging that the Department had not responded to his FOIA\nrequest or taken an extension. On July 19, 2023, this office sent a copy a FOIA\nrequest and his Request for Review to the Department and asked it if it had responded to ||\n= FOIA request. The same day, the Department informed this office that it had\ndesignated as a recurrent requester, as defined by section 2(g) of FOIA (5 ILCS\n140/2(g) (West 2022)), and would respond to his requests within 21 business days of receipt.\nThe Department also provided this office with a copy of a notice it sent to\ninforming him of his status as a recurrent requester, which was triggered b\n30, 2023, FOIA request. On July 20, 2023, this office forwarded to\nDepartment's response letter. On July 21, 2023, he replied.\n\nJune\na copy of the\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 + TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 + Fax: (618) 529-6416\n\nMr. William Lee\nJuly 31, 2023\nPage 2\n\nDETERMINATION\nSection 2(g) of FOIA defines a \"recurrent requester\" as a \"person\" who,\n\nin the 12 months immediately preceding the request, has submitted\nto the same public body (i) a minimum of 50 requests for records,\n(ii) a minimum of 15 requests for records within a 30-day period,\nor (iii) a minimum of 7 requests for records within a 7-day period.\nFor purposes of this definition, requests made by news media and\nnon-profit, scientific, or academic organizations shall not be\nconsidered in calculating the number of requests made in the time\nperiods in this definition when the principal purpose of the requests\nis (i) to access and disseminate information concerning news and\ncurrent or passing events, (ii) for articles of opinion or features of\ninterest to the public, or (iii) for the purpose of academic,\nscientific, or public research or education.\n\nA public body's time within which to respond to a request by a recurrent requester is extended to\n21 business days after receipt of the request. 5 ILCS 140/3.2(a) (West 2022). !\n\nPF acknowledged that he has submitted —e 60 FOIA\n\nrequests in the year prior to his June 30, 2023, FOIA request. disputes that he is a\nrecurrent requester, however, because all of his FOIA requests were \"for information to be\ndisseminated on my electronic news media page to educate the public of the tax funded jobs\nbeing done in the community.\"” SEE cx piained that he has a \"Facebook news media\ngroup page 'Streator Happenings\" to which he posts the information he receives from the\nDepartment.’ He also alleged that the Department is aware of his Streator Happenings Facebook\npage; the Department does not dispute that it is aware of the page.\n\nFirst, although the Department is aware of the Streator Happenings Facebook\npage, the request at issue in this Request for Review does not assert that the individual\nsubmitting the request is a member of the news media or a non-profit, scientific, or academic\n\n'In contrast, a public body must respond to most other types of requests within 5 business digs\nafter receipt of the request unless it extends the time to respond by an additional five business days. 5 ILCS\n140/3(d) (West 2022).\n\n2E-mail from a [Laura Harter, Deputy Bureau Chief, Public Access Bureati, Sffice\nof the Attorney General] (July 25, 2023).\n\n3E-mail from («0 [Public Access Counselor, Office of the Attorney General] (uly 14,\n2023).\n\nMr. William Lee\nJuly 31, 2023\nPage 3\n\norganization, or assert that the principal purpose of the request was among the three principal\npurposes that are excluded from the definition of \"recurrent requester\" in section 2(g) of FOIA.\nConsequently, the Department was unable to consider the representation ie. to\nthis office when making its own determination as to whether the requests qualified as requests\nsubmitted by a recurrent requester.\n\nSecond, section 2(f) of FOIA (5 ILCS 140/2(f) (West 2022)) defines \"news\nmedia\" in relevant part as a \"newspaper or other periodical issued at regular intervals whether in\nprint or electronic format, a news service whether in print or electronic format[.]\" In the context\nof self-published websites purporting to be \"news media,\" this office has determined that the\nstatutory definition of \"news media\" requires more than simply disseminating information\nthrough a website or e-mail:\n\nMerely disseminating information or criticism electronically\nthough a website, or via e-mail, does not meet the statutory\ndefinition of \"news media.\" If it did, then any person who chose to\npost an opinion or comment on a matter of public interest\nelectronically would become a news medium, which was clearly\nnot the intent of the General Assembly when it enacted the\nexception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 44649, issued\nDecember 2, 2016, at 3 (quoting Ill. Att'y Gen. PAC Req. Rev. Ltr.\n33323, issued February 13, 2015, at 4).\n\nIn the absence of Illinois law on how to interpret the term \"news media,\" this\noffice has found cases from other jurisdictions interpreting similar statutory definitions to be\npersuasive. Those cases hold that \"an individual or entity that self-publishes information on the\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\neditorial oversight or the creation of original content similar to that of traditional media\" in order\nto be considered \"news media.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 34653, issued April 4, 2017,\nat 5-6; Ill. Att'y Gen. PAC Req. Rev. Ltr. 44649, at 5. We further observed that \"[t]he General\nAssembly has not expanded the definition in FOIA to include other individuals or entities apart\nfrom those traditional media sources and their electronic versions.\" II]. Att'y Gen. PAC Req.\nRev. Ltr. 44649, at 5.\n\nThis office has reviewed the Streator Happenings page on the Facebook social\nmedia platform. The page is a \"Public group\" that describes itself as \"a news media group that is\nfor informing good people of Streator of what does (and doesn't) happen in Streator, bad or good,\n\nMr. William Lee\nJuly 31, 2023\nPage 4\n\nalthough I do try to highlight the problems to hopefully inspire others to ask for better.\"* The\n\"About\" section also notes \"[t]his page is editorialized, and the narrative may be controlled to try\nto promote my personal desires to see better for the many good caring people of Streator, by\nexposing the public corruption, lack of proper enforcement of laws that I believe have hurt the\ncommunity for so long, and the problems that are hidden by the leaders.\"* The group was\ncreated two years ago, has 7,078 members, and had 101 posts in the past month.°\n\nThe posts to Streator Happenings vary in nature. Some posts are pictures of arrest\nreports, including mugshots, with or — commentary about the arrest.\na periodically posts lists of police calls, pictures of court documents, or links to news\narticles. He frequently posts his opinions concerning alleged crimes in Streator. Other posts are\nmemes, questions from group members looking for advice or recommendations, or inter-group\nmember interactions. While it is clear ‘ha is disseminating crime-related\ninformation, \"Streator Happenings\" is not a news media outlet. Upon review, the posts are not\noriginal content by journalists using recognized journalistic standards, but instead are largely\nimages accompanied by short summaries or opinions. The Streator Happenings group page\ntherefore lacks the essential components of a \"newspaper,\" \"periodical\" or \"news service\"\nincluded in FOIA's definition of \"news media.\" a use of this social media page to\ndisseminate information to the general public does not qualify him for exemption from the\n\"recurrent requester\" provisions in FOIA.\n\nAccordingly, we conclude that the Department did not violate FOIA by treating\nFOIA requests as requests submitted by a recurrent requester in accordance with\nsection 2(g) of FOIA.\n\nIn his Request for Review raised questions about when individuals'\nFOIA requests may be combined and counted together to calculate whether the recurrent\nrequester threshold has been met. To provide education on this topic, this office has attached to\nthis determination selected determination letters discussing factual scenarios involving multiple\nrequesters and the applicability of section 3.2 of FOIA. See Ill. Att'y Gen. PAC Req. Rev. Ltr.\n61809, issued May 7, 2020; Ill. Att'y Gen. PAC Req. Rev. Ltr. 56925, issued April 2, 2019.\n\n“Streator Happenings, About, https://www.facebook.com/groups/741839786483796/ (last visited\nJuly 25, 2023).\n\n*Streator Happenings, About, https://www.facebook.com/groups/741839786483796/ (last visited\nJuly 25, 2023).\n\nStreator Happenings, About, https://www.facebook.com/groups/741839786483796/ (last visited\nJuly 25, 2023). The page currently has a post noting that J paused the group as of July 10, 2023.\n\nMr. William Lee\nJuly 31, 2023\nPage 5\n\nThe Public Access Counselor has determined that resolution of this:matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. Tf you have\nany questions, please contact me at laura.harter@ilag.gov.\n\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\nAttachment\n\n77333 f 2g proper pd\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nMay 7, 2020\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Jordan T. Klein\n\nErickson, Davis, Murphy, Johnson & Walsh, Ltd.\n132 South Water Street, Suite 610\n\nDecatur, Illinois 62523\njklein@ericksondavislaw.com\n\nRE: FOIA Request for Review — 2020 PAC 61809\n\nDear and Mr. Klein:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2018)). For the reasons that follow, the\nPublic Access Bureau concludes that the Decatur Public Library (Library) improperly designated\nas a recurrent requester.\n\nOn January 31, 2020, submitted 4 FOIA request to the Library\nseeking five categories of e-mails. = the request with his own name, and did\nnot indicate that he was affiliated with any group or organization. The same day, the Library\ninformed MB that it was treating him as a recurrent requester, as defined by section 2(g)\nof FOIA (5 ILCS 140/2(g) (West 2018)), and would respond to his request within 21 business\ndays. The Library listed 51 FOIA requests submitted between the dates of April 22, 2019, and\nJanuary 30, 2020, which it contended were sent b r were \"DPL [Decatur Public\nLibrary]: Watchdogs requests [that] note on behalf of DPL Watchdogs' or are sent.\nfrom an email address that is associated with\"! |On February 15, 2020,\nfiled this Request for Review challenging the Library's designation of him as a recurrent\nrequester, contending that he did not send all of the FOIA requests the Library cited in its\n\n‘E-mail from Decatur Public Library, FOIA Officers to i (January 31, 2020).\n\n500 South Second Street, Springfield, Illinois 62701 + (217) 782-1090 + TTY: (877) 844-5461 * Fax: (217) 782-7046 °\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 * TTY: (800) 964-3013 » Fax: (312) 814-3806\n: 601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 * TTY: (877) 675-9339 * Fax: (618) 529-6416\n\nMr. Jordan Klein\nMay 7, 2020\nPage 2\n\nJanuary 31, 2020, letter. SJ acknowledged that he contributes to the DPL Watchdogs\nwebsite ( ‘keepdplhonest. wordpress.com\") and that he has used the DPL Watchdogs e-mail __\naddress to make FOIA requests to the Library, but he contended that he always signed his name\nto those requests. He asserted that he did not submit any of the requests from DPL Watchdogs\nthat do not bear his name.\n\nOn February 24, 2020, this office sent the Library a copy of the Request for ~\nReview and asked it to provide a detailed explanation of the factual and legal bases for the\nLibrary's designation of (EM as a recurrent requester and to provide copies of the FOIA\nrequests the Library used in its determination. On March 4, 2020, the Library provided a written\nresponse and the requested materials. On March 9, 2020, thig office forwarded the Library's\nwritten a to hy He replied on March 10, 2020.\n\n= DETERMINATION\n\nDefinition of Recurrent Requester\n\n| . Section 2(b) of FOIA (5 ILCS 140/2(b) (West|2018) defines a \"person\" as \"any\nindividual, corporation, partnership, firm, organization or association, acting individually or as a\ngroup.\" Section 2(g) of FOIA defines a \"recurrent requester\"|as a \"person\" who, \"in the 12\nmonths immediately preceding the request, has submitted to the same public body (i) a minimum\nof 50 requests for records, (ii) a minimum of 15 requests for fecords within a 30-day period, or\n\n(iii) a minimum of 7 requests for records within a 7-day period.\" A public body's time to\n\nrespond to a request by a recurrent requester is extended to 21 business days after receipt of the\n\nrequest. 5 ILCS 140/3.2(a) (West 2018).?\n, This office has reviewed the copies of the FOIA requests the Library provided to\n-this office and observed that many were signed by\n\neo were signed by\non behalf of the DPL Watchdogs, and some were signed only by \"DPL Watchdogs.\" The\nLibrary argued that all of the requests should be attributed a It asserted that\nas ; the sole contributor to the DPL Watchdogs website, based on the fact that he is the\nonly author listed on the website's posts. The Library cited this office's non-binding -\ndetermination i in Ill. Att'y Gen. PAC Reg. Rev. Ltr. 56925, issued April 2, 2019, for the\nproposition that all of the requests may be considered as coming from the same \"person\" as\ndefined in section 2(b) of FOIA (5 ILCS 140/2(b) (West 2018)), In that case, an individual\n\nsubmitted FOIA requests to a public body in his personal capacity and on behalf of two\norganizations. The individual had signed his name to each ofi the requests, and therefore this\n\nIn contrast, a public body must respond to most other types of requests within 5 business days\nafter receipt of the request unless it extends the time to respond by an additional five business days. 5 ILCS\n140/3(d) (West 2018). :\n\n|\ni\n|\n|\n1\n\n|\nMr. Jordan Klein\n\nMay 7, 2020\nPage3 |\n\nthat individual for purposes of\n\noffice concluded that all of the requests could be attributed to\nReq. Rev. Ltr. 56925, at 2-3.\n\ndesignating him as a recurrent requester. Ill. Att'y Gen. PAC\n\nIn his reply, ME cknowledged that he is the only author listed for the\nposts on the website, but argued that the website has other contributors who submit FOIA\n\nrequests to the Library.\n\nAfter reviewing the records, this office is unable to determine who submitted the\nFOIA requests signed only as \"DPL Watchdogs.\" This offic\n\ne has received at least one other\nRequest for Review (2020 PAC 62320) from a contributor tothe DPL Watchdogs website who\nmay have used the DPL Watchdogs e-mail address. Unlike the circumstance in Ill. Att'y Gen.\nPAC Reg. Rev. Ltr. 56925, where the requester signed every FOIA request, there is insufficient\nproof that _ submitted the DPL Watchdogs requests that he did not sign. Further, not\nall requests submitted by ggg could reasonably be considered to have been on behalf of\nthe DPL Watchdogs website, as the first post on that site is dated August 29, 2019, 3 months after\n\n|\nmany of the FOIA requests cited by the Library as proof of — recurrent requester\nstatus. |\n\nAccordingly, for purposes of calculating MB status as a recurrent\nrequester, the Library may count all FOIA requests that signed, either-in his personal\ncapacity or on behalf of the DPL Watchdogs. To calculate the DPL Watchdogs' status as a\nrecurrent requester, the Library may count all FOIA requests |\n\nsigned by the DPL Watchdogs and\nall FOIA | requests signed by individuals on behalf of the DPL Watchdogs, including\nBecause he has denied sending them and there is insufficient evidence to the contrary, the FOIA\nrequests signed only by the DPL Watchdogs may not be considered i in determining whether Jj\ns a recurrent requester. Therefore, the Library has not demonstrated that IE\nsubmitted the requisite number of FOIA requests to be desig .\n\nnated as a recurrent requester. This\noffice requests that the Library refrain from treating\n\nor DPL Watchdogs as a\n\"recurrent requester\" until they have submitted the requisite number of requests to qualify under\nthe definition of that term in section 2(g) of FOIA.\n|\n\n| Rick Meyer's Costly Adventures in D. Cc.\" (August 29, 2019), available at\nhttps: keepdplhonest. wordpress.com/20 1 9/08/29/rick-meyers- “costly- -adventures-in-d-c/\n\nMr. Jordan Klein\nMay 7, 2020\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (217) 524-7958 or LHarter@atg. state.il.us.\n\nVery truly yours,\n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n61809 f 2g improper lib\n\nOFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nApril 2, 2019\n\nVia electronic mail\n\nRE: FOIA Request for Review — 2019 PAC 56925\nDear Mi.\n\nThis determination letter is issued pursuant to section 9.5(c) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(c) (West 2016)). For the reasons that follow, the\nPublic Access Bureau concludes that no further action is warranted in this matter.\n\nOn January 3, 2019, you delivered twelve FOIA requests to Valley View\nCommunity Unit School District 365U (District) seeking copies of various records. On January\n10, 2019, the District notified you in writing that it had determined that you qualify as a\n\"recurrent requester\" pursuant to section 2(g)(iii) of FOIA (5 ILCS 140/2(g)(iii) (West 2016)),\nbecause you had submitted to the same public body a minimum of seven requests for records\nwithin a seven-day period. The District further stated that it would initially respond to the FOIA\nrequests within 21 business days of receipt, as permitted by section 3.2 of FOIA (5 ILCS 140/3.2\n(West 2016)). On February 4, 2019, the District responded to all twelve requests, making\navailable to you electronic copies of records responsive to certain requests with redactions,\nasserting that the District was unable to locate records responsive to other requests, and notifying\nyou that your request for security camera footage was unduly burdensome, as defined in section\n3(g) of FOIA (5 ILCS 140/3(g) (West)), and requesting that you narrow that request.\n\nOn March 13, 2019, you furnished all the required information to submit a\nRequest for Review to the Public Access Bureau. Your Request for Review argues that the\nDistrict improperly designated the twelve requests you delivered on January 3, 2019, as requests\nsubmitted by a recurrent requester. You asserted the requests were submitted on behalf of three\nseparate parties, that each request explicitly identified the responsible party, and that the District\nviolated FOIA by failing to recognize these parties as independent entities.\n\n§00 South Second Street, Springfield, [Hinois 62701 + (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 + TTY: (800) 964-3013 » Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 * (618) 529-6400 » TTY: (877) 675-9339 » Fax: (618) 529-6416\n\nApril 2, 2019\nPage 2\n\nSection 2(g) of FOIA (5 ILCS 140/2(g) (West 2016)), defines a \"recurrent\nrequester\" as:\n\na person that, in the 12 months immediately preceding the request,\nhas submitted to the same public body (i) a minimum of 50\nrequests for records, (ii) a minimum of 15 requests for records\nwithin a 30-day period, or (iii) a minimum of 7 requests for records\nwithin a 7-day period. For purposes of this definition, requests\nmade by news media and non-profit, scientific, or academic\norganizations shall not be considered in calculating the number of\nrequests made in the time periods in this definition when the\nprincipal purpose of the requests is (i) to access and disseminate\ninformation concerning news and current or passing events, (ii) for\narticles of opinion or features of interest to the public, or (iii) for\nthe purpose of academic, scientific, or public research or,\neducation. (Emphasis added.)\n\nIf the twelve requests submitted on January 3, 2019, are deemed to have been\nsubmitted by the same \"person,\" then that person meets the definition of a recurrent requester so\nlong as that \"person\" is not a member of the news media or a non-profit, scientific, or academic\norganization submitting the request for one of the purposes outlined in section 2(g).\n\nSection 2(b) of FOIA (5 ILCS 140/2(b) (West 2016) defines \"person\" as \"any\nindividual, corporation, partnership, firm, organization or association, acting individually or as a\ngroup.” Your Request for Review argues that several of the twelve FOIA requests you delivered\non January 3, 2019, were submitted on behalf of two associations—the Will County Public\nRecords Group and the Bolingbrook Transparency Group—and that by attributing those FOIA\nrequests to you personally, the District improperly failed to recognize these groups as “persons'\nwho have the authority to submit FOIA requests on their own behalf.\n\nFour of the FOIA requests you delivered to the District on January 3, 2019, were\nsubmitted on your behalf—your name is listed on the top of the request, you state in the request\n\"I hearby request\" certain records, and you signed the requests. Four of the requests state that\nthey are submitted on behalf of the Bolingbrook Transparency Group—the requests state that\n\"we hereby request\" certain records, and the name of the Bolingbrook Transparency Group is\nlisted at the top of the requests. However, your name is listed along with the group's name and\nyou signed the requests. Two of the requests state that they are submitted on behalf of the Will\nCounty Public Records Group—the requests state that \"we hereby request\" certain records, and\nthe name of the Will County Public Records Group is listed at the top of the requests. Again\nhowever, your name is listed along with the group's name and you signed the requests. Finally,\ntwo other requests state that they are submitted on behalf of the Bolingbrook Transparency\n\nApril 2, 2019\nPage 3\n\nGroup. Nevertheless, the Will County Public Records Group is listed at the top of these two\nrequests instead of the Bolingbrook Transparency Group, and again, your name is listed along\nwith the group's name and you signed the requests.\n\nIn this matter, you signed each of the twelve FOIA requests, you were listed as\nthe contact person for each of the twelve requests, and the same telephone number that was listed\non your Request for Review to this office was listed at the top of each request. Moreover,\nExhibits A and B to your Request for Review are documents you stated you submitted to the\nDistrict \"whereupon the members of the aforementioned groups declare their association with\nsuch groups by way of signature.\"! Those documents demonstrate that each group had two\ndeclared members at the time of the submission of the FOIA requests, and that you were one of\nthe two members of each group, The documents indicate that both groups are intended to\npromote transparency in government. ,\n\nA statute should not be construed in a way that would defeat its purpose \"or yield\nan absurd or unjust result.\" Phoenix Bond & Indemnity Co. v. Pappas, 194 Ill. 2d 99, 107\n(2000). Comments during the Senate floor debate by one of the co-sponsors for House Bill\n1716, which as Public Act 97-579 added the recurrent requester provision in section 2(g) to\nFOIA, indicate that the legislation was intended to ease the strain on public bodies that had been\nheavily burdened by large numbers of FOIA requests:\n\nThe sweeping FOIA law that was put into place was outstanding in\nprinciple, outstanding conceptually, but, frankly, the pendulum had\nswung too far and became very impractical for many\nmunicipalities and local units of government to maintain. And, in\nfact, many local units of government were overwhelmed by\ncommercial FOIA that got in the way of legitimate citizen\ninquiries, and indeed it overwhelmed the system and taxed the\ntaxpayers because they were -- under a timeline that was entirely\nunreasonable, Remarks of Sen. Sandack, May 30, 2011, Senate\nDebate on House Bill 1716, at 75.\n\nIf an individual who seeks records from a public body on his or her own behalf\ncould avoid being deemed a recurrent requester by attributing additional requests to alleged\norganizations, the General Assembly's intent of providing relief to public bodies burdened by\nlarge numbers of requests by the same persons would be frustrated. It would be absurd to\nconstrue sections 2(b) and 2(g) of FOIA in a manner that undermines the General Assembly's\nintent by enabling an individual to avoid being treated as a recurrent requester despite submitting\nthe requisite number of requests to qualify as a recurrent requester. For these reasons, the Public\n\n'Letter from a. Sarah Pratt, Public Access Counselor, Office of the Attorney\nGeneral, State of Illinois, at 2 (February 20, 2019).\n\nApril 2, 2019\nPage 4\n\nAccess Bureau determines that the twelve requests you delivered on January 3, 2019, were\nsubmitted by a single \"person.\"\n\nIn your Request for Review, you also declare \"that the principle purpose of my\nFOIA requests to [the District] is to access and disseminate information concerning news and\ncurrent events,\" that you use a social media account to do so.” You therefore request that this\n‘office consider whether this activity qualifies you for exemption from the recurrent requester\ndesignation. As quoted above, section 2(g) of FOIA states that “requests made by news media\nand non-profit, scientific, or academic organizations\" for the one of these purposes outlined in\nthat section shall not qualify as requests made by a recurrent requester.\n\nFirst, we note that none of the twelve requests at issue in this Request for Review\nassert that the individual or group submitting the request is a member of the news media or a\nnon-profit, scientific, or academic organization, or assert that the principal purpose of the\n- requests was among the three principle purposes that are excluded from the definition of\n\"recurrent requester\" in section 2(g) of FOIA. Consequently, the District was unable to consider\nthe representation made to this office when making its own determination as to whether the\nrequests qualified as requests submitted by a recurrent requester.\n\nSecond, section 2(f) of FOIA (5 ILCS 140/2(f) (West 2016)) defines \"news\nmedia\" in relevant part as a \"newspaper or other periodical issued at regular intervals whether in\nprint or electronic format, a news service whether in print or electronic format[.]\" In the context\nof self-published websites purporting to be \"news media,” this office has opined that the\nstatutory definition of \"news media\" requires more than simply disseminating information\nthrough a website or e-mail: .\nMerely disseminating information or criticism electronically\nthough a website, or via e-mail, does not meet the statutory\ndefinition of \"news media.\" If it did, then any person who chose to\npost an opinion or comment on a matter of public interest\nelectronically would become a news medium, which was clearly\nnot the intent of the General Assembly when it enacted the\nexception. Ill. Att'y Gen. PAC Req. Rev. Ltr. 44649, issued\nDecember 2, 2016, at 3 (quoting Ill. Att'y Gen. PAC Rea. Rev. Ltr.\n\n33323, issued February 13, 2015, at 4).\n\nIn the absence of Illinois law on how to interpret the term “news media,\" this\noffice has found cases from other jurisdictions interpreting similar statutory definitions to be\npersuasive. Those cases hold that \"an individual or entity that self-publishes information on the\n\nE-mail from | to Public Access (February 20, 2019).\n\n2 2, oon\n\nPage 5\n\nInternet generally must demonstrate some adherence to recognized journalistic standards such as\neditorial oversight or the creation of original content similar to that of traditional media” in order\nto be considered \"news media.\" III. Att'y Gen. PAC Req. Rev. Ltr. 34653, issued April 4, 2017,\nat 5-6; Ill. Att'y Gen. PAC Req. Rev. Ltr. 44649, at 5. We further observed that \"[t]he General\nAssembly has not expanded the definition in FOIA to include other individuals or entities apart\nfrom those traditional media sources and their electronic versions.\" Ill. Att'y Gen. PAC Req.\nRev. Ltr. 44649, at 5.\n\nThis office has reviewed the social media webpage linked in your e-mail to this\noffice, which is a Twitter page associated with the handle @BolingbrookCom]. The account\nappears to have tweeted five times before the submission of the Request for Review, with each\ntweet displaying a copy of a document or letter along with a one- to three-sentence explanation\nof the meaning of the document. These tweets are not original content or links to original\ncontent compiled by journalists using recognized journalistic standards, but instead are images of\ndocuments with short descriptions of those documents. The @BolingbrookCom1 twitter page\ntherefore lacks the essential components of a \"newspaper,\" \"periodical\" or \"news service\"\nincluded in FOIA's definition of \"news media.\" Your use of this social media page to\ndisseminate information to the general public does not qualify you for exemption from the\n\"recurrent requester\" provisions in FOIA?\n\nAccordingly, we conclude that the District did not violate FOIA by treating your\nFOIA requests as requests submitted by a recurrent requester in accordance with section 2(g) of\nFOIA.\n\nIn footnote 8 of your Request for Review, you allege that on February 8, 2019,\nyou personally attempted to collect the records compiled by the District in response to the\nJanuary 3, 2019, FOIA requests and pay the asserted cost of the recording medium upon which\nthe District copied the records, but that the District refused to accept your cash payment and\ncontinued to withhold the responsive materials on that basis. You request that this office\n\"address the appropriateness of this action in its adjudication of this matter.\"* Exhibit E to your:\nRequest for Review is a Romeoville Police Department incident report, which states that you\nattempted to pay the costs of your FOJA request in part with pennies. Based upon the materials\nyou submitted and, pursuant to section 9.5(f) of FOIA (5 ILCS 140/9.5(f) (West 2016)), which\n- permits the Attorney General to exercise his discretion to resolve a Request for Review \"by a\nmeans other than the issuance of a binding opinion,\" we have determined that no further inquiry\nis warranted on this allegation.\n\n3[t is also unclear from @BolingbrookCom 1's Twitter page whether it is associated with you\npersonally, the Bolingbrook Transparency Group, or the Will County Public Records Group.\n\n‘Letter from hii! to Sarah Pratt, Public Access Counselor, Office of the Attorney\nGeneral, State of Illinois, at 5 n.8 (February 20, 2019).\n\nApril 2, 2019\nPage 6\n\nFinally, footnote 6 of your Request for Review alleges that the District's FOIA\nOfficer's \"demand for private records in the possession of private citizens unequivocally\nrepresents an act of harassment,” and states that through your Request for Review, you are\nsubmitting a \"formal grievance for harassment pursuant to section 2.260 of School District Board\nPolicy.\"> However, the Public Access Counselor's authority is limited to addressing alleged\nviolations of FOIA and the Illinois Open Meeting Act. 15 ILCS 205/7(c) (West 2016).\nAccordingly, this office does not have the authority to address your grievance for alleged\nharassment.\n\nFor the reasons stated above, this office has determined that no further action is\nwarranted in this matter. This letter shall serve to close this matter. Should you have questions,\nyou may contact me at (312) 814-6437 or Ibartelt@atg.state.il.us.\n\nVery truly yours,\n\nLEAH BARTELT\nAssistant Attorney General\nPublic Access Bureau\n\n56925 f no fi war sd\n\ncot Via electronic mail\nMr. Jim Blaney\nFOIA Officer\nValley View School District 365U\n801 West Normantown Road\nRomeoville, Illinois 60446\nblaneyjc@vvsd.org\n\nsLetter from to Sarah Pratt, Public Access Counselor, Office of the Attorney\nGeneral, State of Illinois, at 5 n.6 (February 20, 2019)."}
{"id":1017,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-18","case_number":null,"request_numbers":["77350","77529"],"title":"Mahomet Township improperly designated requester as recurrent requester","filename":"77350 77529, issued September 18, 2023.pdf","rel_path":null,"word_count":1311,"summary":"The Public Access Counselor determined that Mahomet Township improperly designated the requester as a 'recurrent requester' under FOIA because the Township failed to meet the statutory thresholds for that classification.","plain_summary":"An individual requested public records from Mahomet Township, but the Township refused to process the requests normally by labeling the individual a 'recurrent requester.' The Attorney General's office found that the Township did not have enough requests to justify that label. The office requested that the Township refrain from treating the individual as a recurrent requester unless the legal requirements are actually met.","holding":"Mahomet Township improperly designated the requester as a recurrent requester under section 2(g) of FOIA.","legal_question":"Did the public body properly designate the requester as a 'recurrent requester' pursuant to section 2(g) of FOIA?","disposition":"violation_found","primary_statute":["5 ILCS 140/2(g)","5 ILCS 140/3.2"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":[],"public_body":"Mahomet Township","requesting_party":"Mr. Michael A. Kraft (referenced as the requester)","pac_outcome":"Improperly designated as recurrent requester","pac_law_type":null,"subject_category":"recurrent requester","subject_description":"The Township improperly applied the 'recurrent requester' designation to a citizen's requests for township financial and administrative records.","ocr_status":"ok","ocr_quality":96.2,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/2/2_g/77350%2077529%2C%20issued%20September%2018%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["recurrent requester","FOIA request","township records","request processing"],"truncated_suspect":0,"site_category":"Requester Status","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 18, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Michael A Kraft\n\nAttorney\n\nQuinn Johnston\n\n[street address redacted for site publication -- see original PDF]\nmkraft@quinnjohnston.com\n\nRE: FOIA Requests for Review — 2023 PAC 77350\n2023 PAC 77529\n\nDear and Mr. Kraft:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons explained below, the\nPublic Access Bureau concludes that Mahomet Township (Township) improperly designated J\nJuly 13, 2023, and July 23, 2023, FOIA requests as requests by a recurrent\nrequester.\n\nOn July 13, 2023, submitted a FOIA request to the Township\nseeking copies of records concerning monthly billings, invoices, payroll records, and documents\nestablishing a Decennial Committee for the Township. On July 14, 2023, counsel for the\nTownship notified that it was treating his request as a request from a \"recurrent\nrequester\" as defined in section 2(g) of FOIA (5 ILCS 140/2(g) (West 2022)) under section 3.2\nof FOIA (5 ILCS 140/3.2 (West 2022). The Township claimed exceeded one\nor more of the three thresholds in section 2(g), but did not identify which threshold(s). Also, the\nTownship implied that rT was still acting with other requesters as a group that thus\n\n500 South Second Street, Springfield, Illinois 62701 * (217) 782-1090 * TTY: (877) 844-5461 * Fax: (217) 782-7046\n100 West Randolph Street, Chicago, Illinois 60601 + (312) 814-3000 + TTY: (800) 964-3013 + Fax: (312) 814-3806\n601 South University Ave., Carbondale, Illinois 62901 + (618) 529-6400 * TTY: (877) 675-9339 © Fax: (618) 529-6416\n\nMr. Michael A Kraft\nSeptember 18, 2023\nPage 2\n\nconstituted one \"person\" under section 2(b) of FOIA (5 ILCS 140/2(b) (West 2022) (\"'Person'\nmeans any individual, corporation, partnership, firm, organization or association, acting\nindividually or as a group.\"). Later on that same iat submitted a Request for\nReview (2023 PAC 77350) contesting the recurrent requester designation. He argued that (1) all\nhis FOIA requests made before July 13, 2022, should be excluded when calculating his recurrent\nrequester status, (2) he is no longer acting as a group with others, and (3) he has not exceeded the\nnumber of FOIA requests designated within any category of 2(g).\n\nOn July 23, 2023, submitted a FOIA request to the Township\n\nseeking copies of audio and video recordings of any and all Township meetings since March 1,\n2022. On July 28, 2023, counsel for the Township similarly notified that it was\ntreating his request as a request from a \"recurrent requester\" as defined in section 2(g) of FOIA\nand under section 3.2 of FOIA. The Township claimed that | was still acting with\nother requesters as a group that had collectively submitted over 50 FOIA requests since July 23,\n2022. On July 30, aa, submitted the other Request for Review at issue in this\nmatter (2023 PAC 77529) contesting the recurrent requester designation for the same reasons as\nthe other file.\n\nOn July 26, 2023, this office sent a copy of Request for Review 2023 PAC 77350\nto the Township and asked it to provide this office with a detailed written response to the\nallegations in the Request for Review, including the bases for —— | as a\nrecurrent requester. Similarly, on August 4, 2023, this office sent a copy of Request for Review\n2023 PAC 77529 to the Township and asked it to provide this office with a detailed written\nresponse to the allegations in the Request for Review, including the bases for designating\n— as a recurrent requester. On August 7, 2023, the Township provided a consolidated\nresponse explaining the factual and legal bases for treating a as a recurrent\na On that same date, this office forwarded a copy of the Township's response tof\n\n. On August 8, 2023, submitted a written reply.\n\nDETERMINATION\n\nSection 2(g) of FOIA defines a \"recurrent requester\" as a \"person\" who, \"in the 12\nmonths immediately preceding the request, has submitted to the same public body \"(i) a\nminimum of 50 requests for records, (ii) a minimum of 15 requests for records within a 30-day\nperiod, or (iii) a minimum of 7 requests for records within a 7-day period.\" (Emphasis added.)\nA public body's time to respond to a request by a recurrent requester is extended to 21 business\ndays after receipt of the request. 5 ILCS 140/3.2(a) (West 2022). Thus, each time a requester\nsubmits a FOIA request to a public body, the public body \"may look back 52 weeks prior to the\ndate\" the request was received to determine whether the requester continues to qualify as a\n\"recurrent requester.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 29472, issued October 23, 2014, at 2.\n\nMr. Michael A Kraft\nSeptember 18, 2023\nPage 3\n\nThe Township's response to this office asserted that had submitted\n50 requests to the Township since July 1, 2022. The Township argued that the language \"in the\n12 months immediately preceding the request\" means that the Township correctly looked back to\nJuly 1, 2022, when calculating the number of requests submitted, rather than the\n12-month time period from July 13, 2022, to July 13, 2023. The term \"immediately\" means\n\"without interval of time.\" Merriam-Webster Online Dictionary, http://www.merriam-\nwebster.com/dictionary/immediately. The Township's interpretation would add an interval of\ntime beyond 12 months; if a request was submitted on July 31, 2023, the Township's\ninterpretation would allow the Township to look back nearly 13 months. The Illinois Supreme\nCourt, however, has explained that \"FOIA is to be liberally construed to achieve the goal of\nproviding the public with easy access to government information.\" Jn re Appointment of Special\nProsecutor, 2019 IL 122949, 4] 25, 129 N.E.3d 1181, 1188; see also Rushton v. Department of\nCorrections, 2019 IL 124552, 39, 160 N.E.3d 929, 942 (\"The statute is to be construed broadly\nin favor of disclosure.\"). In light of the purpose of FOIA and the common understanding of the\nmeaning of \"immediately,\" this office again concludes that the language \"in the 12 months\nimmediately preceding the request\" means the 52 weeks prior to the date of submission.\n\nThis office reviewed the number of FOIA requests that the Township relied upon\nin support of its assertion that was a recurrent requester, and even assuming\nes acting with other requesters as a group that constituted one \"person,\" there is no\nindication that he qualified as a recurrent requester at the time of the two FOIA requests at issue\nhere.' Looking back 52 weeks — FOIA request submitted on July 13, 2023,\n(2023 PAC 77350) yields a total of 43 FOIA requests. Similarly, FOIA request\nsubmitted on July 23, 2023 (2023 PAC 77529) yields 39 FOIA requests. Thus,\n\ndid not meet the 50 request threshold in either instance.\n\nAccordingly, the Public Access Bureau concludes that as of July 13, 2023, and\nJuly 23, 2023, respectively, the Township improperly designated as a \"recurrent\nrequester.\" This office notes that the Township has acknowledged that no longer\nqualified as a recurrent requester as of August 2023. This office requests that the Township\n\nrefrain from treating him as a \"recurrent requester\" unless he submits the requisite number of\nrequests to qualify under the definition of that term in section 2(g) of FOIA.\n\n'This determination does not address whether was still acting as a group comprising\none \"person\" because the insufficient number of requests used by the Township to calculate\nrecurrent requester designation is dispositive of this matter.\n\nMr. Michael A Kraft\nSeptember 18, 2023\nPage 4\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590-6840 or matthew. goodman@ilag.gov.\n\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n77350 77529 f 2g recurrent req improper mun\n\n","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"A township's recurrent requester designation","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77350/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 18, 2023\n\nVia electronic mail\n\nVia electronic mail\n\nMr. Michael A Kraft\n\nAttorney\n\nQuinn Johnston\n\n[street address redacted for site publication -- see original PDF]\nmkraft@quinnjohnston.com\n\nRE: FOIA Requests for Review — 2023 PAC 77350\n2023 PAC 77529\n\nDear and Mr. Kraft:\n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\nInformation Act (FOIA) (5 ILCS 140/9.5(f) (West 2022)). For the reasons explained below, the\nPublic Access Bureau concludes that Mahomet Township (Township) improperly designated J\nJuly 13, 2023, and July 23, 2023, FOIA requests as requests by a recurrent\nrequester.\n\nOn July 13, 2023, submitted a FOIA request to the Township\nseeking copies of records concerning monthly billings, invoices, payroll records, and documents\nestablishing a Decennial Committee for the Township. On July 14, 2023, counsel for the\nTownship notified that it was treating his request as a request from a \"recurrent\nrequester\" as defined in section 2(g) of FOIA (5 ILCS 140/2(g) (West 2022)) under section 3.2\nof FOIA (5 ILCS 140/3.2 (West 2022). The Township claimed exceeded one\nor more of the three thresholds in section 2(g), but did not identify which threshold(s). Also, the\n\nconstituted one \"person\" under section 2(b) of FOIA (5 ILCS 140/2(b) (West 2022) (\"'Person'\nmeans any individual, corporation, partnership, firm, organization or association, acting\nindividually or as a group.\"). Later on that same iat submitted a Request for\nReview (2023 PAC 77350) contesting the recurrent requester designation. He argued that (1) all\nhis FOIA requests made before July 13, 2022, should be excluded when calculating his recurrent\nrequester status, (2) he is no longer acting as a group with others, and (3) he has not exceeded the\nnumber of FOIA requests designated within any category of 2(g).\n\nOn July 23, 2023, submitted a FOIA request to the Township\n\nseeking copies of audio and video recordings of any and all Township meetings since March 1,\n2022. On July 28, 2023, counsel for the Township similarly notified that it was\ntreating his request as a request from a \"recurrent requester\" as defined in section 2(g) of FOIA\nand under section 3.2 of FOIA. The Township claimed that | was still acting with\nother requesters as a group that had collectively submitted over 50 FOIA requests since July 23,\n2022. On July 30, aa, submitted the other Request for Review at issue in this\nmatter (2023 PAC 77529) contesting the recurrent requester designation for the same reasons as\nthe other file.\n\nOn July 26, 2023, this office sent a copy of Request for Review 2023 PAC 77350\nto the Township and asked it to provide this office with a detailed written response to the\nallegations in the Request for Review, including the bases for —— | as a\nrecurrent requester. Similarly, on August 4, 2023, this office sent a copy of Request for Review\n2023 PAC 77529 to the Township and asked it to provide this office with a detailed written\nresponse to the allegations in the Request for Review, including the bases for designating\n— as a recurrent requester. On August 7, 2023, the Township provided a consolidated\nresponse explaining the factual and legal bases for treating a as a recurrent\na On that same date, this office forwarded a copy of the Township's response tof\n\n. On August 8, 2023, submitted a written reply.\n\nDETERMINATION\n\nSection 2(g) of FOIA defines a \"recurrent requester\" as a \"person\" who, \"in the 12\nmonths immediately preceding the request, has submitted to the same public body \"(i) a\nminimum of 50 requests for records, (ii) a minimum of 15 requests for records within a 30-day\nperiod, or (iii) a minimum of 7 requests for records within a 7-day period.\" (Emphasis added.)\nA public body's time to respond to a request by a recurrent requester is extended to 21 business\ndays after receipt of the request. 5 ILCS 140/3.2(a) (West 2022). Thus, each time a requester\nsubmits a FOIA request to a public body, the public body \"may look back 52 weeks prior to the\ndate\" the request was received to determine whether the requester continues to qualify as a\n\"recurrent requester.\" Ill. Att'y Gen. PAC Req. Rev. Ltr. 29472, issued October 23, 2014, at 2.\n\nThe Township's response to this office asserted that had submitted\n50 requests to the Township since July 1, 2022. The Township argued that the language \"in the\n12 months immediately preceding the request\" means that the Township correctly looked back to\nJuly 1, 2022, when calculating the number of requests submitted, rather than the\n12-month time period from July 13, 2022, to July 13, 2023. The term \"immediately\" means\n\"without interval of time.\" Merriam-Webster Online Dictionary, http://www.merriam-\nwebster.com/dictionary/immediately. The Township's interpretation would add an interval of\ntime beyond 12 months; if a request was submitted on July 31, 2023, the Township's\ninterpretation would allow the Township to look back nearly 13 months. The Illinois Supreme\nCourt, however, has explained that \"FOIA is to be liberally construed to achieve the goal of\nproviding the public with easy access to government information.\" Jn re Appointment of Special\nProsecutor, 2019 IL 122949, 4] 25, 129 N.E.3d 1181, 1188; see also Rushton v. Department of\nCorrections, 2019 IL 124552, 39, 160 N.E.3d 929, 942 (\"The statute is to be construed broadly\nin favor of disclosure.\"). In light of the purpose of FOIA and the common understanding of the\nmeaning of \"immediately,\" this office again concludes that the language \"in the 12 months\nimmediately preceding the request\" means the 52 weeks prior to the date of submission.\n\nThis office reviewed the number of FOIA requests that the Township relied upon\nin support of its assertion that was a recurrent requester, and even assuming\nes acting with other requesters as a group that constituted one \"person,\" there is no\nindication that he qualified as a recurrent requester at the time of the two FOIA requests at issue\nhere.' Looking back 52 weeks — FOIA request submitted on July 13, 2023,\n(2023 PAC 77350) yields a total of 43 FOIA requests. Similarly, FOIA request\nsubmitted on July 23, 2023 (2023 PAC 77529) yields 39 FOIA requests. Thus,\n\ndid not meet the 50 request threshold in either instance.\n\nAccordingly, the Public Access Bureau concludes that as of July 13, 2023, and\nJuly 23, 2023, respectively, the Township improperly designated as a \"recurrent\nrequester.\" This office notes that the Township has acknowledged that no longer\nqualified as a recurrent requester as of August 2023. This office requests that the Township\n\nrefrain from treating him as a \"recurrent requester\" unless he submits the requisite number of\n\nThe Public Access Counselor has determined that resolution of this matter does\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at (773) 590-6840 or matthew. goodman@ilag.gov.\n\nVery truly yours,\n\nMATT GOODMAN\nAssistant Attorney General\nPublic Access Bureau\n\n77350 77529 f 2g recurrent req improper mun"}
{"id":1018,"orig_master_id":null,"dup_master_id":null,"dup_sha256":null,"source":"PAC","sub_agency":"determination_letter","doc_type":"PAC Determination Letter","binding":0,"year":null,"date_issued":"2023-09-27","case_number":null,"request_numbers":["77360","77361"],"title":"Metropolitan Water Reclamation District properly withheld CSO point location data under 7(1)(x)","filename":"77360 77361, issued September 27, 2023.pdf","rel_path":null,"word_count":1374,"summary":"The requester sought GIS shapefiles of Combined Sewer Outfall (CSO) points from the Metropolitan Water Reclamation District, which the District withheld citing security concerns. The PAC determined the District properly withheld the records under the exemption for critical infrastructure information.","plain_summary":"This determination addresses whether a public body properly withheld precise location data for Combined Sewer Outfall (CSO) points under section 7(1)(x) of FOIA, which exempts maps and records regarding the location of utility-owned transmission, storage, or treatment facilities. The Public Access Bureau concluded that the public body did not violate FOIA by denying requests for a GIS shapefile and CSV file containing exact CSO point locations, even though a less precise map of the same points was already posted online. The Bureau found the public body met its burden of showing the CSO points function as part of its wastewater treatment and stormwater management infrastructure and that it (or other municipal utilities) owns the facilities, bringing the exact-location data within the exemption's scope. Because the requested data would reveal more precise information than the publicly available online map, withholding was upheld. The public body here was the Metropolitan Water Reclamation District of Greater Chicago, responding to requests for CSO point location files.","holding":"Section 7(1)(x) of FOIA permits a public body to withhold maps or geographic data files disclosing the precise location of utility-owned transmission, storage, gathering, or treatment facilities, even where a less precise depiction of the same facilities is already publicly available.","legal_question":"Whether the Metropolitan Water Reclamation District properly withheld GIS mapping data of Combined Sewer Outfall points pursuant to the exemption for critical infrastructure information under section 7(1)(x) of FOIA.","disposition":"no_violation","primary_statute":["5 ILCS 140/7(1)(x)"],"foia_related":null,"foia_or_oma":"FOIA","foia_exemption":["7(1)(x)"],"public_body":"Metropolitan Water Reclamation District of Greater Chicago","requesting_party":"Ms. Cyatharine Alias (Center for Neighborhood Technology)","pac_outcome":"No violation found","pac_law_type":null,"subject_category":"critical infrastructure","subject_description":"The request sought GIS shapefiles containing the precise locations of Combined Sewer Outfall (CSO) points.","ocr_status":"ok","ocr_quality":93.4,"ocr_pending":0,"source_url":"https://illinoisattorneygeneral.gov/Page-Attachments/FOIAPAC/Non-Binding-PAC-Opinions/FOIA/7_1/Exemptions-which-permit-redacting-withholding-exempt-information-records/7_1_x/77360%2077361%2C%20issued%20September%2027%2C%202023.pdf","sha256":null,"needs_review":0,"splice_suspect":0,"splice_method":null,"faq_tags":["GIS data","critical infrastructure","sewer system","security exemption"],"truncated_suspect":0,"site_category":"General Records Exemptions","full_text_pre_clean":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 27, 2023\n\nVia electronic mail\nMs. Cyatharine Alias\nSenior Manager,  Community Infrastructure &  Resilience\nCenter for Neighborhood Technology\n[street address redacted for site publication -- see original PDF]\ncalias@cnt. org\n\nVia electronic mail\nMr. James Murray,  Jr. \nHead Assistant Attorney\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\nChicago,  Illinois 60611\nMurrayJ1@mwrd. org\n\nRE:  FOIA Requests for Review –  2023 PAC 77360;  2023 PAC 77361\n\nDear Ms. Alias and Mr. Murray: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) ( 5 ILCS 140/ 9.5(f) (West 2022)).   For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Metropolitan Water Reclamation\nDistrict of Greater Chicago ( District)  to Ms. Cyatharine Alias'  June 27, 2023,  and July 6, 2023, \nFOIA requests did not violate the requirements of FOIA. \n\nOn June 27, 2023,  Ms. Alias, on behalf of the Center for Neighborhood\n\nTechnology,  submitted a FOIA request to the District seeking \" a GIS- friendly file (preferably a\nshapefile ( plus the accompanying files required to make the data viewable on QGIS or Esri\nArcMap))  of the Combined Sewer Outfall [ CSO]  points that MWRD has mapped on\"  a specified\n\n500 South Second Street,  Springfield,  Illinois 62701 • ( 217)  782- 1090 •  TTY: ( 877)  844- 5461 •  Fax: ( 217)  782- 7046\n100 West Randolph Street,  Chicago,  Illinois 60601 • ( 312) 814-3000 •  TTY: (800)  964-3013 •  Fax: ( 312) 814-3806\n601 South University Ave., Carbondale,  Illinois 62901 • ( 618) 529-6400 •  TTY: (877) 675-9339 •  Fax: ( 618)  529- 6416\n\n\fMs. Cyatharine Alias\nMr. James Murray,  Jr. \nSeptember 27, 2023\nPage 2\n\nDistrict webpage. 1 She specified that \"[ t]he data file shall contain data to be able to\ngeocode/ locate the CSOs on GIS software,  owner,  location,  city, waterway reach,  tarp\nconnection,  and monitored or unmonitored.\" 2 On July 5, 2023,  the District denied Ms. Alias' \nrequest in its entirety pursuant to section 7(1)(x) of FOIA. 3\n\nOn July 6, 2023,  Ms. Alias submitted another FOIA request to the District,  this\n\ntime seeking \" a csv file with the address locations of the CSOs\"  the District manages. 4 On July\n13, 2023,  the District again denied her request in its entirety pursuant to section 7(1)(x) of FOIA.  \nOn July 17, 2023,  this office received Ms. Alias' Requests for Review challenging the District' s\ndenials.   She noted that the District has disclosed the requested information on its website,  but\nthe manner in which the information is presented online is not downloadable.   In a July 19, 2023, \ne-mail exchange with an Assistant Attorney General ( AAG) in the Public Access Bureau,  Ms. \nAlias confirmed that she is seeking a shapefile or csv file of the information posted on the\nDistrict' s webpage,  nothing additional.  \n\nIn a July 21, 2023,  telephone call with the AAG, the District explained that\n\ndisclosing the shapefiles of the CSO points or the exact address of the CSO points would\ndisclose more precise information about those locations than is available online.   The District\nmaintained that the requested location information is exempt pursuant to section 7(1)(x) of\nFOIA. \n\nOn July 27, 2023,  this office sent a copy of the Requests for Review to the\n\nDistrict and asked it provide a written explanation for the factual and legal bases for the District' s\nassertion that the requested information is exempt pursuant to section 7(1)( x) of FOIA.  This\noffice asked the District to clarify how the CSO point locations qualify as \" generation, \ntransmission,  distribution,  storage,  gathering,  treatment,  or switching facilities owned by a\nutility\"  as required by section 7(1)(x).  Specifically,  this office requested that the District explain\nwhat kind of facility the CSO points are and clarify who owns the facilities.   On August 8, 2023, \nthe District submitted the requested materials.   On August 9, 2023,  this office forwarded the\nDistrict' s answer to Ms. Alias;  she did not submit a reply. \n\nhttps:// mwrdgc. maps.arcgis. com/apps/ SimpleViewer/ index.html?appid= 89424a32f7304532b47c9017fa0f9fa2. \n\n1FOIA 23-229 ( June 27, 2023).   The specified website was: \n\n2FOIA 23-229 ( June 27, 2023).   \n\n35 ILCS 140/ 7(1)(x) (West 2022),  as amended by Public Act 103-154, effective June 30, 2023. \n\n4FOIA 23-241 ( July 6, 2023). \n\n\fMs. Cyatharine Alias\nMr. James Murray,  Jr. \nSeptember 27, 2023\nPage 3\n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\"   5 ILCS 140/ 1.2 (West 2022);  see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 ( 2006).   Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\"  that the record is\nexempt from disclosure.   5 ILCS 140/ 1.2 (West 2022).   The exemptions from disclosure are to be\nnarrowly construed.   Lieber v. Board of Trustees of Southern Illinois University,  176 Ill. 2d 401, \n407 ( 1997).   \n\nSection 7(1)(x) of FOIA exempts from disclosure \"[ m] aps and other records\n\nregarding the location or security of generation,  transmission,  distribution,  storage,  gathering, \ntreatment,  or switching facilities owned by a utility, by a power generator,  or by the Illinois\nPower Agency.\" \n\nIn its response to this office, the District explained that the CSO points at issue are\n\noutfalls where stormwater and sanitary sewage are transmitted to a waterway such as the North\nShore Channel or North Branch of the Chicago River when the District' s intercepting sewers and\nwater reclamation plants reach capacity during heavy rain which allow the local sewers to drain\nto a waterway to alleviate backups.\" 5 Further, \"[ t]he CSO points function as part of the District' s\nwastewater treatment facilities and its infrastructure to treat wastewater and provide stormwater\nmanagement.\" 6 The District also confirmed that it is a utility:  \"The District collects wastewater\nfrom municipalities in its service area,  which is conveyed to its treatment plants and then\ndischarged to local waterways.   The District is also responsible for stormwater management for\nall of Cook County.\" 7 The District owns 37 of the 400 CSO points in its territorial boundaries; \nother municipalities acting as utilities with respect to the operation of their CSO points own the\nother CSO points. \n\n5Letter from James B. Murray,  Jr., FOIA Officer,  Metropolitan Water Reclamation District of\n\nGreater Chicago,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Attorney General\nAugust 8, 2023),  at 2. \n\n6Letter from James B. Murray,  Jr., FOIA Officer,  Metropolitan Water Reclamation District of\n\nGreater Chicago,  to Laura S. Harter,  Deputy Bureau Chief, Public Access Bureau,  Office of the Attorney General\nAugust 8, 2023),  at 2. \n\n7Letter from James B. Murray,  Jr., FOIA Officer,  Metropolitan Water Reclamation District of\n\nGreater Chicago,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Attorney General\nAugust 8, 2023),  at 2. \n\n\fs. Cyatharine Alias\nMr. James Murray,  Jr. \nSeptember 27, 2023\nPage 4\n\nBased on this office's review of the information provided by the District,  the\nresponsive CSO point information is within the scope of the section 7(1)(x) exemption.   The\nDistrict has explained that the CSO points are sources of stormwater and sanitary sewage\ntransmission that are related to treatment facilities owned by the District or other utilities.  \nFurther,  as it previously informed this office, the requested GIS mapping \" includes the exact\nlocations of the CSO points as opposed to the general vicinities of the CSO points provided by\nthe online map.\" 8 Accordingly,  this office concludes that the District has sustained its burden of\ndemonstrating that the withheld CSO point locations are exempt from disclosure under section\n7(1)(x) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion.   This letter serves to close this matter.   If you have\nany questions,  please contact me at laura.harter@ilag. gov.        \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n77360 77361 f 71x proper spd\n\n8Letter from James B. Murray,  Jr., FOIA Officer,  Metropolitan Water Reclamation District of\n\nGreater Chicago,  to Laura S. Harter,  Deputy Bureau Chief,  Public Access Bureau,  Office of the Attorney General\nAugust 8, 2023),  at 2. \n\n\f","full_text_pre_reocr":null,"plain_summary_pre_resummarize":null,"card_headline":"GIS shapefiles of Combined Sewer Outfall points","full_text_pre_backfill":null,"disposition_pre_fix":null,"human_verified":0,"disposition_pre_audit_fix":null,"plain_summary_pre_audit_fix":null,"human_verified_pre_audit_fix":null,"date_issued_pre_fix":null,"year_pre_fix":null,"site_dup_of":null,"site_url":"/opinions/letter-77360/","full_text":"OFFICE OF THE ATTORNEY GENERAL\nSTATE OF ILLINOIS\n\nKWAME RAOUL\nATTORNEY GENERAL\n\nSeptember 27, 2023\n\nVia electronic mail\nMs. Cyatharine Alias\nSenior Manager, Community Infrastructure & Resilience\nCenter for Neighborhood Technology\n[street address redacted for site publication -- see original PDF]\ncalias@cnt. org\n\nVia electronic mail\nMr. James Murray, Jr. \nHead Assistant Attorney\nMetropolitan Water Reclamation District of Greater Chicago\n100 East Erie Street\nChicago, Illinois 60611\nMurrayJ1@mwrd. org\n\nRE: FOIA Requests for Review – 2023 PAC 77360; 2023 PAC 77361\n\nDear Ms. Alias and Mr. Murray: \n\nThis determination is issued pursuant to section 9.5(f) of the Freedom of\n\nInformation Act (FOIA) (5 ILCS 140/ 9.5(f) (West 2022)). For the reasons that follow, the\nPublic Access Bureau concludes that the response by the Metropolitan Water Reclamation\nDistrict of Greater Chicago (District) to Ms. Cyatharine Alias' June 27, 2023, and July 6, 2023, \nFOIA requests did not violate the requirements of FOIA. \n\nOn June 27, 2023, Ms. Alias, on behalf of the Center for Neighborhood\n\nTechnology, submitted a FOIA request to the District seeking \" a GIS- friendly file (preferably a\nshapefile (plus the accompanying files required to make the data viewable on QGIS or Esri\nArcMap)) of the Combined Sewer Outfall [ CSO] points that MWRD has mapped on\" a specified\n\nDistrict webpage. 1 She specified that \"[ t]he data file shall contain data to be able to\ngeocode/ locate the CSOs on GIS software, owner, location, city, waterway reach, tarp\nconnection, and monitored or unmonitored.\" 2 On July 5, 2023, the District denied Ms. Alias' \nrequest in its entirety pursuant to section 7(1)(x) of FOIA. 3\n\nOn July 6, 2023, Ms. Alias submitted another FOIA request to the District, this\n\ntime seeking \" a csv file with the address locations of the CSOs\" the District manages. 4 On July\n13, 2023, the District again denied her request in its entirety pursuant to section 7(1)(x) of FOIA. \nOn July 17, 2023, this office received Ms. Alias' Requests for Review challenging the District's\ndenials. She noted that the District has disclosed the requested information on its website, but\nthe manner in which the information is presented online is not downloadable. In a July 19, 2023, \ne-mail exchange with an Assistant Attorney General (AAG) in the Public Access Bureau, Ms. \nAlias confirmed that she is seeking a shapefile or csv file of the information posted on the\nDistrict's webpage, nothing additional. \n\nIn a July 21, 2023, telephone call with the AAG, the District explained that\n\ndisclosing the shapefiles of the CSO points or the exact address of the CSO points would\ndisclose more precise information about those locations than is available online. The District\nmaintained that the requested location information is exempt pursuant to section 7(1)(x) of\nFOIA. \n\nOn July 27, 2023, this office sent a copy of the Requests for Review to the\n\nDistrict and asked it provide a written explanation for the factual and legal bases for the District's\nassertion that the requested information is exempt pursuant to section 7(1)(x) of FOIA. This\noffice asked the District to clarify how the CSO point locations qualify as \" generation, \ntransmission, distribution, storage, gathering, treatment, or switching facilities owned by a\nutility\" as required by section 7(1)(x). Specifically, this office requested that the District explain\nwhat kind of facility the CSO points are and clarify who owns the facilities. On August 8, 2023, \nthe District submitted the requested materials. On August 9, 2023, this office forwarded the\nDistrict's answer to Ms. Alias; she did not submit a reply. \n\nhttps:// mwrdgc. maps.arcgis. com/apps/ SimpleViewer/ index.html?appid= 89424a32f7304532b47c9017fa0f9fa2. \n\n1FOIA 23-229 (June 27, 2023). The specified website was: \n\n2FOIA 23-229 (June 27, 2023). \n\n35 ILCS 140/ 7(1)(x) (West 2022), as amended by Public Act 103-154, effective June 30, 2023. \n\nDETERMINATION\n\nUnder FOIA, \"[ a] ll records in the custody or possession of a public body are\n\npresumed to be open to inspection or copying.\" 5 ILCS 140/ 1.2 (West 2022); see also Southern\nIllinoisan v. Illinois Dep't of Public Health, 218 Ill. 2d 390, 415 (2006). Any public body that\ndenies a record \" has the burden of proving by clear and convincing evidence\" that the record is\nexempt from disclosure. 5 ILCS 140/ 1.2 (West 2022). The exemptions from disclosure are to be\nnarrowly construed. Lieber v. Board of Trustees of Southern Illinois University, 176 Ill. 2d 401, \n407 (1997). \n\nSection 7(1)(x) of FOIA exempts from disclosure \"[ m] aps and other records\n\nregarding the location or security of generation, transmission, distribution, storage, gathering, \ntreatment, or switching facilities owned by a utility, by a power generator, or by the Illinois\nPower Agency.\" \n\nIn its response to this office, the District explained that the CSO points at issue are\n\noutfalls where stormwater and sanitary sewage are transmitted to a waterway such as the North\nShore Channel or North Branch of the Chicago River when the District's intercepting sewers and\nwater reclamation plants reach capacity during heavy rain which allow the local sewers to drain\nto a waterway to alleviate backups.\" 5 Further, \"[ t]he CSO points function as part of the District's\nwastewater treatment facilities and its infrastructure to treat wastewater and provide stormwater\nmanagement.\" 6 The District also confirmed that it is a utility: \"The District collects wastewater\nfrom municipalities in its service area, which is conveyed to its treatment plants and then\ndischarged to local waterways. The District is also responsible for stormwater management for\nall of Cook County.\" 7 The District owns 37 of the 400 CSO points in its territorial boundaries; \nother municipalities acting as utilities with respect to the operation of their CSO points own the\nother CSO points. \n\n5 Letter from James B. Murray, Jr., FOIA Officer, Metropolitan Water Reclamation District of\n\nGreater Chicago, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General\nAugust 8, 2023), at 2. \n\n6 Letter from James B. Murray, Jr., FOIA Officer, Metropolitan Water Reclamation District of\n\nGreater Chicago, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General\nAugust 8, 2023), at 2. \n\n7 Letter from James B. Murray, Jr., FOIA Officer, Metropolitan Water Reclamation District of\n\nGreater Chicago, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General\n\nBased on this office's review of the information provided by the District, the\nresponsive CSO point information is within the scope of the section 7(1)(x) exemption. The\nDistrict has explained that the CSO points are sources of stormwater and sanitary sewage\ntransmission that are related to treatment facilities owned by the District or other utilities. \nFurther, as it previously informed this office, the requested GIS mapping \" includes the exact\nlocations of the CSO points as opposed to the general vicinities of the CSO points provided by\nthe online map.\" 8 Accordingly, this office concludes that the District has sustained its burden of\ndemonstrating that the withheld CSO point locations are exempt from disclosure under section\n7(1)(x) of FOIA. \n\nThe Public Access Counselor has determined that resolution of this matter does\n\nnot require the issuance of a binding opinion. This letter serves to close this matter. If you have\nany questions, please contact me at laura.harter@ilag. gov. \n\nVery truly yours, \n\nLAURA S. HARTER\nDeputy Bureau Chief\nPublic Access Bureau\n\n77360 77361 f 71x proper spd\n\n8 Letter from James B. Murray, Jr., FOIA Officer, Metropolitan Water Reclamation District of\n\nGreater Chicago, to Laura S. Harter, Deputy Bureau Chief, Public Access Bureau, Office of the Attorney General\nAugust 8, 2023), at 2."}